Petition — Van Curen v. Jago

a tl i i i ee ee a i

Supreme Court, U. §,

la FILED

SEP 19 1978

i

[Limcnna 00% ccm

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

Misc. No. 8 pe 04] 9

GEORGE D. VAN CUREN,

PETITIONER,

‘tine

A. R. JAGO, SUPERINTENDENT,

RES PONDENT.

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

for the Sixth Circuit

LOUIS A. JACOBS

Pro Hac Vice

Supervising Attorney

Clinical Programs

CHRIS BLAIR

Pro Hac Vice

Supervising Attorney

Clinical Programs

STANLEY K. LAUGHLIN, JR.

Member of Supreme Court Bar

Clinical Programs

College of Law

The Ohio State University

1659 North High Street

Columbus, Ohio 43210

(614) 422-6821

ATTORNEYS FOR PETITIONER

—

Opinions Below . a ° ” . 7. s * . 6 . . . « . > + . * . .

Jurisdiction oo . . * e . ° . . . ° . . . e ° . * . . * .

Question Presented oe - * a ° . a > 7 . o a * a. 2 2 s 7

Constitutional and Statutory Provisions Involved ....

Statement of the Case . . . o @ J . . o > - . . a + a .

Reasons for Granting the Writ . , a Oe a a ee a 6

1. THE FEDERAL CIRCUIT COURTS OF APPEALS HAVE

RENDERED CONFLICTING DECISIONS ON THE DUE PROCESS

RAMIFICATIONS OF PAROLE GRANTS AND RESCISSIONS ...

2. WHAT THE DUE PROCESS RAMIFICATIONS OF PAROLE

GRANTS AND RESCISSIONS ARE IS AN IMPORTANT QUESTION

OF FEDERAL LAW WHICH THIS COURT SHOULD ANSWER ...

3. PETITIONER WAS DEPRIVED OF A PROPERTY AND

LIBERTY INTEREST WITHOUT DUE PROCESS ........

NG: > ks. Oe Sw Ae os ek als oe oak

Appendix: Judgment and Opinion of United States

Court of Appeals for the Sixth Circuit .....

Order of United States District Court,

Southern District of Ohio, Western Division . .°

Report of Magistrate for the United

States District Court, Southern District of

ee ee a ae

Judgment and Opinion of Supreme Court

of Ohio « e. e . . . o e . a . . 7 _ . . . . . +

A-11

CITATIONS

Cases

AVCO Corp. v. Aero Lodge 735, 390 U.S. 557 (1968) . .

Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1974),

vacated as moot, 423 U.S. 147 (1975) ......

Brown v. Lundgren, 528 F.2d 1050 (5th Cir.), cert.

es ee ima DAP COPE) 6k wc wt cette

Childs v. United States Bd, of Parole, 511 F.2d 1270,

I SE DC es gs kk tk tt wc

Demar v. Wainwright, 354 So.2d 366 (Fla. 1977), cert.

denied, U.S. P) 98 S.Ct. 3082 (1978) _

Drayton v. McCall, 445 F.Supp. 305 (D. Conn. 1978) .

Franklin v. Shields, 569 F.2d 784 (4th Cir.) (en

banc), cert, denied, U.S. » 98 S.Ct.

ES, (OUOSS a Ao a Wah ns 6 a ce te

Gagnon v. Scarpelli, 411 U.S. 778 ee -<« «68-6 «

Inmates of Nebraska Penal & Correctional Complex v.

Greenholtz, 576 F.2d 1274 (Sth Cir. 1978) . ...

Jackson v. Wise, 390 F.Supp. 19 (C.D. Cal. 1975) ..

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S,

123 (1951) 7 . . * ° * e e * . . 7 . 7 e . e o e

McIntosh v. Woodward, 514 F.2d 95 (Sth Cir. 1975)...

Meachum v. Fano, 427 U.S, 215 (1976) ..... —

Morrissey v, Brewer, 408 U.S. 471 Oe Te eyo .

Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978) . .

Jan. 15, 1975), vacated and remanded to consider

mootness, 429 U.S. 60 (1976 » OM remand sub nom.

Bell v. Kentucky Parole Bd., 556 F.2d 805 (6th

Cir . 19 77) . . . e . ° . * . . e o . . . 7 a + .

Scott v. Kentucky Parole Bd., No. 74-1899 (6th Cir.,

Sexton v. Wise, 494 F.2d 1176 (5th Cir. 1974) ....

United States, ex rel. Johnson v. Chairman, New York

: State Bd. “of Parole, 500 F.2d 925 (2d Cir.),

vacated as moot, 419 U.S. 1015 (1974) .......

United States, ex rel. Richerson v. Wolff, 525 F.2d

797 (7th Cir. 1975), cert. denied, 425 U.S. 914

(1976) eee ee Sik es = Sp p fe eo

Williams v. United States Bd. of Parole, 383 F.Supp.

402 (D, Conn, 1974) ~ o a . . . o . . . . om . -

uv ~o

~

INDEX (continued) Page

Williams v. Ward, 556 F.2d 1143 (2d Cir.) cert.

disn., MM UR IR oo eee 7

Wolff v. McDonnell, 418 U.S. 539 (1974) 1 ..4.2.5.4. 6,7, 8

Constitutional and Statutory Provisions

Constitution of the United States, Fourteenth Amendment passim

oe et ee iy ae ae ee a a ae 2

Ohio Revised Code §2967.01 . . 2. 2. . 2 eeceveecees 2

Gide Revised Code §2967.33 . «ccc eee eeeneeee ,

Sec r orit

Jacobs "Parole: An Imterest in Due Process" 6 Cap. U. L. Rev.

De MTR ON a eae A ea Se ae ee ei ges Pe te

» 4% «

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

Misc. No.

GEORGE D. VAN CUREN,

PETITIONER,

sis

A. R. JAGO, SUPERINTENDENT,

RES PONDENT.

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

For The Sixth Circuit

Petitioner George D. Van Curen respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of. Appeals for the Sixth Circuit entered

in this case on June 21, 1978.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit, which is not reported, appears in the Appendix

hereto.

The opinion of the United States District Court for the

Southern District of Ohio, Western Division, which was based on

& report and recommendation of a magistrate, is not reported,

Both the opinion and the magistrate's report appear in the

Appendix hereto,

The judgment and opinion of the Supreme Court of Ohio, re-

ported at 45 Ohio St.2d 298, 345 N.E.2d 75, appears in the

Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit

| was entered on June 21, 1978. Petitioner's Motion for Leave to

Proceed in Forma Pauperis and Petition for Writ of Certiorari were

filed within 90 days of that date. This Court's jurisdiction is

invoked under 28 U.S.C, §1254(1).

QUESTION PRESENTED

Whether summary rescission by a state parole board of a

grant of parole on or after a date certain and subsequent sum-

mary denial of parole violates the Due Process Clause of the

Fourteenth Amendment to the United States Constitution,

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Fourteenth Amendment,

Section 1 ek = [N]or shall any state deprive any per-

son of life, liberty, or property, without due process of law;

kkk

Section 2967.01 of the Ohio Revised Code,

"Parole" means the release from con-

finement in any state penal or reformatory

institution by the adult parole authority

created by section 5149.02 of the Revised

Code and under such terms and for such

period of time as shall be prescribed by

the autho:ity in its published rules and

official minutes. A parolee so released

shall be supervised by the authority,

* 7 *

Section 2967.31 of the Ohio Revised Code.

Notwithstanding any other provision

for determining parole eligibility, a

prisoner confined in a state penal or

reformatory institution may be released

on parole at any time after serving six

months in the custody of the department

of rehabilication and correction, when

ail of the following apply:

(A) The offense for which the prisoner

was sentenced was an offense other than

aggravated murder or murder,

~ Be

ti, tee eis :

(B) The prisoner has not previously been

convicted of any felony for which, pur-

suant to sentence, he was confined for

thirty days or more in a penal or reforma-

tory institution in this state or in a

similar institution in any other state or

the United States.

(C) The prisoner is not a dangerous of-

fender as defined in section 2929.01 of

the Revised Code,

(D) The prisoner does not need further

confinement in a penal or reformatiory in-

stitution for his correction or rehabili-

tation,

(E) The history, character, condition,

and attitudes of the prisoner indicate

that he is likely to respond affirmatively

to early release on parole, and is un-

likely to commit another offense.

STATEMENT OF THE CASE

Upon his plea of guilty to embezzlement, forgery, and

uttering and parsing charges, petitioner George D. Van Curen

was sentenced on May 22, 1972, to a term of incarceration for

not less than six (6) nor more than 100 years (Van Curen Dep.

at 11-14, 23), Pursuant to Ohio's shock parole statute,

O.R.C, §2967.31, Mr. Van Curen appeared on April 17, 1974

before a hearing panel consisting of one parole board member

and a hearing officer. (Shoemaker Dep. at 10-11; Kowalski

Dep. at 14-15). The panel recommended that he be granted

parole on or after April 23, 1974, and the Ohio Adult Parole

Authority (hereinafter QAPA) approved that recommendation

that day. (Shoemaker Dep. at 11, Snyder Dep. at 10; 19-20).

On April 23, 1974, the QAPA summarily rescinded Mr. Van

Curen's parole. (Coomer Dep. at 22-24), At no time during

1/

This case was submitted to the District Court below on

depositions and briefs; therefore, reference to the

record is made by citation of the name of the deponent

and the relevant page(s). :

the proceedings which resulted in the rescission of his parole

grant was Mr. Van Curen given notice or an opportunity to be

heard, (Snyder Dep. at 75, 91, 101-103). On June 20, 1975,

the parole board convened to again consider shock parole for

Mr. Van Curen, and the board summarily denied parole.

The board failed to allow Mr. Van Curen to call witnesses,

have counsel or counsel-substitute, or confront adverse wit-

nesses and review adverse reports upon whose authority parole

was initially rescinded and later denied. No notice of the

topics to be discussed was given Mr. Van Curen to allow him to

become aware of the facts which formed the basis of either the

rescission or denial, and no statement of facts or reasons for

the board's actions was ever made. (Shoemaker Dep. Re-

spondent's Stipulation at 46; Snyder Dep. at 71-72; Van Curen

Dep. at 53, 76-79, 90-91).

On September 27, 1974, Mr. Van Curen initiated an original

action in mandamus in the Supreme Court of Ohio challenging on

due process grounds the procedures employed by the parole

board, The writ was denied on March 24, 1976. This Court

denied a petition for a writ of certiorari on November 15, 1976.

Van Curen v. QAPA, No, 75-6955 (U.S., filed Jun. 21, 1976).

On February 14, 1977, Mr. Van Curen filed a Petition for Writ

of Habeas Corpus in the United States District Court for the

Southern District of Ohio, Western Division. The Writ was

denied on August 24, 1977. That decision was affirmed by the

Court of Appeals for the Sixth Circuit on June 21, 1978.

:

)

4

i

4

REASONS FOR GRANTING THE WRIT

1, THE FEDERAL CIRCUIT COURTS OF APPEALS HAVE

RENDERED CONFLICTING DECISIONS ON THE DUE PROCESS

RAMIFICATIONS OF PAROLE GRANTS AND RESCISSIONS.

Pursuant to Rule 19 of this Court's rules, one reason to be

considered in granting the writ is "[w]here a court of appeals

has rendered a decision in conflict with the decision of another

court of appeals on the same matter." See AVCO Corp. v. Aero

Lodge 735, 390 U.S. 557, 559 (1968). The circuits are in direct

conflict on the issue of the due process ramifications of parole

grants and rescissions. Compare Brown v. Lundgren, 528 F.2d

1050, 1052-53 (5th Cir.), cert, denied, 429 U.S, 917 (1976) and

Scott v. Kentucky Parole Bd., No. 74-1899 (6th Cir., Jan. 15,

1975), vacated and remanded to consider mootness, 429 U.S. 60

(1976), on remand sub nom. Bell v. Kentucky Parole Bd., 556 F.2d

805, 806 (6th Cir. 1977); with Franklin v. Shields, 569 F.2d 784,

800 (4th Cir.) (en banc), cert. denied, U.S. » 98

S.Ct. 1659 (1978); Inmates of Nebraska Penal & Correctional

Complex v. Greenholtz, 576 F.2d 1274, 1281 (8th Cir. 1978);

United States, ex rel. Richerson v. Wolff, 525 F.2d 797 (7th

Cir. 1975), cert. denied, 425 U.S. 914 (1976); Childs v. United

States Bd. of Parole, 511 F.2d 1270, 1280 (D.C. Cir. 1974);

adford v. Weinstein, 519 F.2d 728, 732 & n.3 (4th Cir. 1974),

vacated as moot, 423 U.S. 147 (1975); and United States, et rel,

Johnson v. Chairman, New York State Bd, of Parole, 500 F.2d 925

(2d Cir.), vacated as moot, 419 U.S, 1015 (1974) (grants).

Compare McIntosh v. Woodward, 514 F.2d 95 (Sth Cir. 1975) with

Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978) (rescissions).

To ensure uniformity of decisions in the federal courts of

appeals, this Court should grant the writ, Otherwise, the due

process rights of federal and state inmates will vary with

geographic location, a result antithetical to the concept of a

national constitution. Moreover, the number of decisions continues

- 5 -

to grow, not only in the Circuits, but also in the District and

State courts, decisions that construe the same constitutional

provision under nearly identical factual and legal situations to

produce squarely and irreconcilably conflicting views of the due

process interests in parole.

The importance of this issue is clear: the way in which that

liberty expressly protected by the Fourteenth Amendment, Morrissey

v. Brewer, 408 U.S. 471, 485-89 (1972), is granted or rescinded

affects both every inmate in this country and, due to the impact

of the corrections process on society, Morripey, 408 U.S. at 484;

Gagnon v. Scarpelli, 411 U.S. 778, 785 (1973), every citizen as

well, In our constitutional scheme, procedural safeguards are

deemed important because "[i]t is procedure that spells much of

the difference between rule by law and rule by whim or caprice,"

J -Fasc Refugee v. McGrath, 341 U.S. 123, 179

(1951) (Douglas, J., concurring).

Absent interpretation by this Court, the constitutional

protection given an inmate's parole status will continue to differ

solely because the parameters of the Due Process Clause have not

yet been set on this issue. As the divergent precedent reflects,

the variance does not rest on dissimilar state laws, but rather

on contradictory readings of the Fourteenth Amendment and differing

applications of the Morrissey and Wolff v. McDonnell, 4:8 U.S.

539 (1974), decisions. Thus, the writ must be granted to resolve

this conflict,

2, WHAT THE DUE PROCESS RAMIFICATIONS OF PAROLE

GRANTS AND RESC‘ISSIONS ARE IS AN IMPORTANT QUESTION

OF FEDERAL LAW WHICH THIS COURT SHOULD ANSWER.

A second catalyst for granting a writ under Rule 19 is the

nature of the legal issue. "Where a court of appeals. . .has de-

cided an import ant question of federal law which has not been, but

should be, settled by this court," the writ may be granted. Sup.

- f& «

Ct. R. 19(1)(b). At issue here is an important federal question

about interpretation offthe Due Process Clause and application to

a corrections process that touches on both inmate and societal

interests. If the conflicting decisions and geographical varia-

tions are to stop, the issue must be settled by the only court

with the power to ultimately resolve legal questions about con-

struction of the Constitution of the United States. Moreover,

this Court should act because, in large measure, the lower federal

courts have been stymied by this Court's decisions.

The Supreme Court has not decided

the exact question before us of whether

a prisoner's interest in prospective

parole is an interest to be afforded pro-

tection under the due procese clause of

the Fourteenth Amendment. It must be

acknowledged that there are indications

both ways in recent Supreme Court opinions,

Inmates of the Nebraska Penal & Correctional Complex v. Greenholtz,

576 F.2d at 1279 (citation omitted). See also Williams v. Ward,

556 F.2d 1143, 1157 (2d Cir.), cert. dism., 434 U.S. 944 (1977)

("Whether the Supreme Court will adjudge a parole applicant's

interest in the prospect of conditional liberty on parole to be

insufficient to trigger due process protections is still un-

settled, . .. .The past observations of the Court have pointed

in both directions.) (citation omitted),

Importantly, resolution of the due process issue is not simply

a matter of state law. Cf. Meachum v. Fano, 427 U.S. 215 (1976).

Rather, the Morrissey-Wolff grievous loss analysis of the Due

Process Clause liberty interest in parole has been relied on by

lower federal and state courts to reach conflicting results. See,

&--, Jackson v. Wise, 390 F. Supp. 19, 30 (C.D. Cal. 1975);

Williams v, United States Bd. of Parole, 383 F. Supp. 402, 404

(D. Conn. 1974); Demar v. Wainwright, 354 So.2d 366 (Fla. 1977),

ce d, U.S. » 98 S.Ct. 3082 (1978); Sexton v. Wise,

494 F.2d 1176, 1178 (5th Cir. 1974). Indeed, the same issue

-7-.

plagues the United States Parole Commission. Drayton v. McCall,

445 F. Supp. 305, 308 (D. Conn. 1978).

Parole procedures and criteria are essentially the same in

every state. The enabling laws raise, as does Ohio's, an ex-

pectation both that compliance with the enumerated criteria will

lead to parole and that such compliance will be gauged in a manner

consistent with the constitutional significance of the property

and liberty interest created by enactment of a parole process,

The essential issue is not the state law's procedural safeguards;

instead, the issue is whether, as a matter of federal constitu-

tional law, an interest is created which merits due process pro-

tection, Then, whatever procedures s*ate law provides can be

measured against the Morrissey, 408 U.S. at 485-89, and Wolff,

418 U.S. at 563-71, models of the process that is due,

Thus, "(t]he constitutional issue is whether either the out-

right denial, or the imposition of parole conditions, has the

kind of impact on liberty that must be preceded by ‘due process',"

Scott 429 U.S. at 60-61 (Stevens, Brennan and Powell, J. J.,

dissenting). That issue has not been, but should be, decided by

this Court; therefore, the writ must be granted,

3. PETITIONER WAS DEPRIVED OF A PROPERTY AND LIBERTY

INTEREST WITHOUT DUE PROCESS.

Though the decisional law conflicts, the proper interpre-

tation of the Due Process Clause yields protection for parole

grants and rescissions. A due process interest, anchored in

state law, and custom,is created by parole statutes and should

not be denied without a constitutionally sufficient procedure to

Ah ONE tint ata nn

determine whether the statutory criteria were satisfied. See

Jacobs, "Parole: An Interest in Due Process," 6 Cap. U. L. Rev.

205 (1976). That interest, traceable from the conditional liberty

recognized in Morrissey, is at stake when the parole decision is

made - the prisoner will be set free, albeit on conditional re-

lease. See Johnson, 500 F.2d at 928, Further, in rescinding a

parole grant, some interest is clearly divested of the inmate,

See Jackson, 390 F. Supp. at 30.

A writ must issue to the Court of Appeals for the Sixth

Circuit because its decision denying due process protection to

petitioner failed to recognize the property and liberty interest

he had in both the rescission of his parole grant and its sub-

sequent denial, As the briefs will show, the facts used, to the

extent discovery in the proceedings below has ascertained then,

there being no seaneiber of reasons for the parole board's actions,

were susceptible’ to refutation and explenation. Yet, petitioner

was not given the minimal safeguards of fair notice and a meaning -

ful opportunity to be heard. Joint Anti-Fascist Committee, 341

U.S. at 168 (Frankfurter, J., concurring).

CONCLUS LON

This issue will not go away. It has often been before the

Court for merits review, but remains an unsettled question, Uni-

formity is appropriate and necessary, but divergent lower court

opinion are continuing to be rendered. The importance of the due

process ramifications of parole grants and rescissions stems from

the number of parole release decisions, their critical significance

to a prisoner, and the amount of litigation that a lack of resolu-

tion foments. Scott, 429 U.S, at 61 n.1 (Stevens, Brennan, and

Powell, J. J., dissenting). For these and the foregoing reasons,

the writ must be granted.

Respectfully submitted,

Rowse O.truglr

LOUIS A. JACOBS

Pro Hac Vice

Supervising Attorney

Clinical Programs

Chua Blorr | Loy

CHRIS BLAIR

Pro Hac Vice

Supervising Attorney

Clinical Programs

Sian lay K. Lash ea ¥

b

STANLEY K, LAUGHLIN, JR.

Member of Supreme Court Bar

Clinical Programs

The Ohio State University

College of Law

1659 North High Street

Columbus, Ohio 43210

(614) 422-6821

ATTORNEYS FOR PETITIONER

|. | See rs Y '

Pens APPENDIX JUN 2 1 1978

FILED gv

eu hae NO. 77-3558 JOHN P. HEHMAN, ye -1e

Ju 13 4 04 PH ioe STATES COURT OF APPEALS bY

‘ail a Lean USTa, 3 || POR THE SIXTH CIRCUIT :

1 oe Se Ws eens Chie.

GEORGE D. VAN CUREN

C is oat

Petitioner-Appellant

; - Indox oy

; Ve

'

‘

ARNOLD R. JAGO, Superintendent th We PEER

on i re

ee

BEFORE: PHILLIPS, Chief Judge; and LIVELY and KEITH, Circuit”

Judges.

IBA ED ME ARE? [er

This is an appeal from denial of a petition for habeas

corpus. The petitioner, a state prisoner, was selected for

“shock parole" at a future date and was so advised. Petitioner

then prepared and submitted a parole plan which was never

approved. Prior to the date on which he would have been released

on shock parole the parole board rescinded its previous decision

on the basis of a determination by a parole board investigator

that there was a misrepresentation in the petitioner's parole

plan and that he had misrepresented the magnitude of his crime at

his hearing. :

Upon consideration of the briefs and oral arguments of

counsel together with the record on appeal the court concludes

that the petitioner had an expectation of release on parole at

most and that he had neither a property interest nor a liberty

ee ON FRE Te A TY Oe PE Bee aA

NO, 77-3558 -2-

interest which entitled him to a due process hearing on

rescission of the earlier decision to grant shock parole. The

court concludes that Morrissey v. Brewer, 408 U.S. 471 (1972),

which dealt with the rights of one already free on parole does

not require a decision different from: that reached in this case.

The judgment of the district court is affirmed.

ENTERED BY ORDER OF THE COURT

\

: Kn~ (4 fhe Fa ee

Clerk

‘, TRUE COPY,

Attest:

ek aN (y's

” : ea

Depuly Ger

Issued as Mandate;

COSTS: None July 13, 1978

= “ at

oe ae

iA

FILED

w/ / JOEN 2. LYTER, OLERE

fuc 24 Qi9 hd TT

U.S. DISTRICT COURT

SOUTHER DIST. O10

WEST QV, CINCINNATI

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

GEORGE D. VAN CUREN

NO. C-1-77-67— —

FT I

Docketed —____.

Journal

Motion

Vv. Issue

Card

rer

Petitioner,

—— ——-

A. R. JAGO, Supt., ORDER

Respondent.

This habeas corpus case was submi’ ted on the

petitioner's petition (doc. 2), respondent's return of writ

(doc. 5), petitioner's reply to return of writ (doc. 7) and

the respondent's reply to petitioner's reply (doc. 9).

The matter was referred to the United States

_ Magistrate for report and recommendation pursuant to Western

Division Rule No. 1, In re: United States Magistrate, filed

June 22, 1977.

The matter is before the Court now on such report

and recommendation of the Magistrate.

After consideration, the Court finds the report

well reasoned and the recommendation that the petition for

writ of habeas corpus be denied is supported by applicable

law.

The Court therefore approves and adopts the report

of the Magistrate at its own. * Accordingly, for reasons set

out in the report of the Magistrate, the petitioner for writ

of habeas corpus is hereby denied.

soe ) O2& “en

>

United States District Judges’

'

‘1

Raa

}

a

er

UNITED STATES DISTRICT COURT be

SOUTHERN DISTRICT OF OHIO By

WESTERN DIVISION so ein

GEORGE D. VAN CUREN, : | ditereg

rs S

Petitioner, : NO: C-1-77-67

vs. : sng

A. R. JAGO, SUPERINTENDENT, REPORT OF MAGISTRATE __

Respondent.

Inmate George D. Van Curen has filed a petition for

writ of habeas corpus seeking to set aside the rescission

of his parole on the ground that the rescission violates

his constitutional rights. The essential facts are as follows:

After entering a plea of guilty to charges of embezzle-

ment, forgery and uttering and passing forged instruments in

the Cuyahoga County Court of Common Pleas, petitioner was

sentenced on May 22, 1972 to a term of not less than six nor

more than 100 years in the Ohio Penitentiary. In January of

1974, the Ohio legislature enacted O.R.C. § 2967.31, which

permitted inmates such as petitioner to be considered for shock

parole (early parole). A panel consisting of a Parole Board

member and a hearing officer interviewed Mr. Van Curen, and

on April 17, Ss granted him shock parole "on or after"

April 23, 19747

1/ .

~ An “on or after" date is used in granting parole sin

any grant is conditional pending approval and investigation o

of the parole plan which the inmate must Prepare once he is

granted parole (Shoemaker, Depo. , p. 30).

.

A-4

A SE LAR A oS

afte

Presumably the two hearing officers had been impressed

with both the information Mr. Van Curen gave them at the

hearing and his record. Petitioner had no prior criminal

record, had not been disciplined while incarcerated, and had

been commended for his performance during 1000 hours of nurse's

training at the Correctional Medical Center's James Hospital.

Also, he had received a graduate diploma and a high job

performance rating as a clerk while in prison, and he had a

job waiting upon his release.

He described his crime ‘as the embezzlement of approximately

one million dollars and said he had cooperated with attempts

to recover the lost funds.

On April 23, 1974, after petitioner had begun the release

process but while he was still incarcerated, the Parole Board

rescinded its grant of parole. The Board issued special

minutes which stated that the "technical matters pertaining

to this case should be more fully explored" (Doc. 2, attach-

ment D). The Board did not base its action on information

produced by the routine investigation, mentioned above, to

‘ate all parolees are subjected before release. In fact,

the Board had not received any official report. The record

indicates, however, that the Board did receive additional

information which caused it to suspect that the decision to

grant parole was unsound.

While the Board was in session on April 23, 1974, the

Board's absent chairman, Nolan Snyder, telephoned to

report he had learned that in the parole plan petitioner

had submitted, he had stated falsely that he would be

living with his half-brother while on parole. Actually,

the man named was not related to petitioner at all, although

Mr. Van Curen has testified that the sponsor was close to

ew

his family. Syyder reported further that the magnitude

of petitioner's crime had not been described fully to

the original panel (Snyder deposition at p. 31). The

amount stolen had been closer to six million dollars than

to the one million dollars admitted by petitioner. Snyder

also informed the Parole Board that the trial judge and the

prosecuting attorney had protested vigorously the granting

of shock parole to petitioner (Snyder deposition at p. 23-4).

In addition, Snyder apparently thought the Board should take

into consideration the community attitude in the Cleveland

area which was against Van Curen's being paroled. The local

paper, for instance, had printed articles criticizing the

panel's decision, and the Board had received correspondence

adverse to petitioner (Doc. 2, p. 5).

The day after the Board tentatively rescinded Mr. Van

Curen's parole, he was notified of that action and scheduled

to appear before the full Board for a hearing at its June

meeting. At that meeting on June 20, 1974, petitioner's shock

parole was denied.

In his petition, Mr. Van Curen contends that the actions

taken by the Board after granting parole on April 17, 1974

denied him due process of law. He claims that he should

have beengiven a neutral hearing with notice of the topics

to be discussed, opportunity to present and confront witnesses

and access to the information upon which the Board was relying,

He argues that his right to these procedures is grounded in

state law and supported by precedent.

The theory that petitioner has a due process interest

grounded in state law stems from a Supreme Court decision,

Wolff v. McDonnell, 418 U.S. 539 (1974). In Wolff, the Court

eke

decided that a prisoner must be given a hearing before being

deprived of good time. In doing so, it looked to the state

statute which created the right to good time.

The Court noted that:

The State having created the right

to good time and itself recognizing

that its deprivation is a sanction

authorized for major misconduct,...

[the Due Process Clause requires]

that the State created right is

not arbitrarily abrogated. 418

U.S. at 556-7. :

Thus, where the state establishes statutory rights

and a standard for their denial, i.e., "major misconduct ,"

the state must afford the prisoner minimal due process to

ascertain whether that standard has, in fact, been violated.

In contrast, the shock parole statute under which Mr.

Van Curen tentatively was granted parole does not provide

a standard for its recision. Therefore, there exists no

state created right to procedural safeguards before he may

lose his grant of shock parole. In fact, far from

giving the petitioner a definite interest in shock parole

which has been granted but nat effected, the Ohio legislature

has left his status entirely within the discretion of the

Parole Board. It is well settled in Ohio that the Pardon and

Parole Commission may rescind the granting of parole prior to

the time of its taking effect. Zenz v. Alvis, 66 Ohio L. Abs.

606, Ohio Appeals, Second District, 1951. Moreover, the word

“parole” as used in the statute means the actual release from

confinement, State ex rel Newman v. Lowery, 61 Ohio L. Abs.

337, aff'd. 157 0.8. 463 (1952). Thus, petitioner's situation

.

does not fall within the reasoning of the Wolff doctrine.

Nor do other cases cited by petitioner create a right

to a hearing before the Board may rescind his parole. The

only appellate level case directly in point which the parties

have cited to us, Sexton v. Wise, 494 F. 2d 1176 (5th Cir. 1974),

is adverse to petitioner. In that case the Court held that

a prisoner, who had been granted a future date for parole

which was summarily rescinded,

was not entitled to a hearing since

the process of obtaining parole had

never reached completion and the due

° rocess protections of Morrissey v.

rewer [discussed infra] aaa

to revocation were not applicable,

494 F. 21 at 1177.

We adopt the reasoning of Sexton to decide this case.

Recent decisions of both the Supreme Court and the

Court of Appeals for the Sixth Circuit support our holding.

The case most favorable to Mr. Van Curen which bears

discussion is Morrissey v. Brewer, 408 U.S. 471 (1972). There

the Court stated that,

The liberty of a parolee, although

indeterminate...is valuable and

must be seen as within the pro-

tection of the Fourteenth Amendment.

Its termination calls for some

orderly process, however informal.

408 U.S. at 482.

Morrissey is distinguishable from a case where the parolee

has not yet been released. The language used by the Court in

Morrissey indicates that the distinction is a valid one.

The liberty of a’parolee enables him

to do a wide range of things open to

persons who have never been convicted

=6-

of any crime. The parolee has been

released from prison based on an

evaluation that he shows reasonable

promise of being able to return to

society and function as a responsible

self-sufficient person. 480 U.S. at 482.

Petitioner, of course, was not released from prison. In

addition, the initial evaluation of his ability to return to

society has been discredited.

Supreme Court decisions of the past two years exhibit a

more stringent limitation of the due process rights of prisoner

than did Morrissey. The following cases address the issue of

whether a due process hearing must precede certain changes in

a prisoner's status. In Baxter v. Palmagiano, 425 U.S. 308

No. 74-1187, (April 20, 1976), the Court held that Wolff not-

withstanding, the rights of the prisoner in prison disciplinary

proceedings, including the right to counsel and confrontation

of witnesses, are within the sound discretion of the prison

officials and may be denied summarily.

Montanye v. Haymes, 427 U.S. 236 , No. 74-520

(June 25, 1976), involved the transfer of prisoners to less

desirable institutions. Montanye held that where under state law

the prisoner has no justifiable expectation that he would not be

transferred, the Due Process Clause of the Fourteenth Amend-

ment does not require a hearing in connection with the transfer

of a prisoner. The holding of Montanye is especially

damaging to petitioner's case since the Montanye Court refused

to subject the motives of the officials who made the changes

to constitutional review.

Consistent with these Supreme Court cases, the Court of

s

Appeals for the Sixth Circuit recently held that prisoners

are not entitled to certain procedural rights before place-

ment in more restrictive security penitentiaries, or before

The procedural rights which

significant and adverse effects.

the Court concluded are unnecessary include the right to

written notice of the charges, the right to call witnesses

and produce evidence, the right to confront the accusing

officer, the right to cross-examine adverse witnesses, the

right to a written decision based only upon the evidence

produced at the hearing and the right to counsel or counsel

substitute in certain situations. (Walker v. Hughes,

F. 2d , No. 76-1974, June 24, 1977.)

This review of cases discloses that the officials

of the prison system may make changes in the status of

prisoners within their custody without granting any procedural

protection whatsoever. Petitioner Van Curen, therefore, has

no remedy in federal court (Sexton, supra).

it is recommended that the petition for writ of habeas corpus

be denied.

ed States Magistrate

For this reason,

—_——

Tae Srate, ex REL. Van Curen, v. On10 Aut Paros

AUTHORITY ET AL.

[Cite as State, ex rel. Van Curen, v. Adult Parole

Authority (1976), 45 Ohio St. 2d 298. ]

Mandamus—To compel Adult Parole Authority to recall

order—Writ denied, when. rid

(N 0. 74-802—Decided March 24, 1976.)

In Maypamus.

Mr. Louis A. Jacobs and Mr. Stanley K. Laughlin, Jr.,

for relator.

Mr. William J. Brown, attorney general, and Mr.

Thomas D. Rooney, for respondents.

Per Curiam. On April 17, 1974, relator was granted

shock parole hy respondent Ohio Adult Parole Authority,

to be effective on or after April 23, 1974. Before relator

was released from custody, respondent rescinded the action

taken on April 17, 1974, and continued the matter of rela-

tor’s ole for further investigation to June 1974. On

June 20, after a hearing, parole was denied.

Relator, who remains incarcerated, now seeks an order

of this court to compel ndent to recall its decision of

—— 20, 1974, and make effective the action taken April 17,

Relator argues that when respondent granted him

parole effective on or after April 23, 1974, an interest pro-

tected by the Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution attached to relator

and could not be rescinded or continued by respondent with-

out a hearing. This is argued notwithstanding the fact that

the grant of parole was rescinded before relator was to be

released from confinement.

_ The Adult Parole Authority has no regulation requir-

ing a hearing prior to rescinding the grant of a parole be-

fore Linge as

ate, ex rel. Newman, v. Lowery (1952), 157 Ohio St.

463, involving a similar fact situation, this wit poke that

= fighuita hbper-eo and Parole] Commission had authority

rescind its order ing a le eff.

~— future date. * * on eh wsuisientad

andamus lies only to command perfo

action which the law specially enjoins 5 a psa Ba

from an office, trust or station. R. C. 2731.01. No such

duty having been shown, the writ is denied.

‘ Writ denied.

O’Nen, C, J., Hensear, Conzican, Srer CELEBREZzE,

W. Brown and P. Brown, JJ + concur, 5

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