# Petition — Van Curen v. Jago

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 926

## Text

a tl i i i ee ee a i

Supreme Court, U. §,
la FILED

SEP 19 1978

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[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

A-l1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0429%3A1. Public record. Not legal advice.