Petition — Jago v. Van Curen

80-1942

CASE NO.

IN THE

Supreme Court of the United States

Office-Supreme Court, US.

rie Dp

MAY 13 1981

ALEXANDER L. STEVAS,

Clerk

OCTOBER TERM 1980

A.R.JAGO AND WILLIAM J. BROWN,

Petitioners,

vs.

GEORGE D. VAN CUREN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. BROWN

Attorney General

DENNIS L. SIPE

Counsel of Record

Assistant Attorney General

State Office Tower, 26th Floor

30 East Broad Street

Columbus, Ohio 43215

(614) 466-5414

ATTORNEYS FOR PETITIONERS

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

QUESTIONS PRESENTED

I. WHETHER THE OBTAINING OF AN AU-

THORIZATION FOR PAROLE CREATES A NON RE-

SCINDABLE PROPERTY RIGHT TO PAROLE RE-

LEASE WITHOUT PROCEDURAL DUE PROCESS

WHERE STATE LAW, AS HELD BY THE SUPREME

COURT OF SUCH STATE, CONSTRUES SUCH AU-

THORIZATION AS CONDITIONAL SUBJECT TO FUR-

THER INVESTIGATION AND WHERE THE CONDI-

TIONAL AUTHORIZATION HAS BEEN OBTAINED

BY FRAUD.

Il. WHETHER A PETITION FOR WRIT OF

HABEAS CORPUS SEEKING A PAROLE IS MOOT

WHEN DURING THE COURSE OF THE PROCEEDINGS

THE INMATE IS PAROLED NOT AS A RESULT OF

ANY COURT ACTION.

PARTIES

The petitioners in this action are A. R. Jago, former

Superintendent of the Southern Chio Correctional Facility,

currently Superintendent of the London Correctional

Institution and William J. Brown, Attorney General of

Ohio. The respondent is George D. Van Curen.

TABLE OF CONTENTS

Page

COSEIOUD so occas 00nceeenase santa aeen nee i

FOMGNGG . con cccaccesces tenses seis ee i

DOCMIONS BOIOW 6 ccc ccesscsecene cease be eubeeneie 1

CMGIION 6 ci ccccccestavessesscsesenenn eras 2

Constitutional and Statutory Provisions Involved ...... 2

Statemont.of the Case... .cccccveseascvenecee wens 5

Argument in Support of Granting Certiorari.......... 8

Costéfionte of Besviee. .00cvccccscecesassebsieues 13

TABLE OF AUTHORITIES

Bishop v. Wood,

436 UG. 361 (ISTE) 0.00 cc cnccnccaisevuyesesun 10

Board of Regents v. Roth,

GOB U.S. GEE (TOTS). oc ccc csnccesdcvtunqessanny 9

Golden v. Zwickler,

S04 U.S, 106, ROB CRGGS) os ccc ncnsccavsaescean 12

Greenholtz v. Inmates of Nebraska Penal Complex,

GES US. 1 (IG TS) occ ccccccsosencseanseave 6,11, 12

O’Shea v. Littleton,

ee Gh REG vs ub aelascec cess Cacebaaves’ 12

Perry v. Sindermann,

ee sph b8e ee eee nee eeee 9,10

Sosna v. Iowa,

ee EE Ss hu 6 &0.0-4 48 64-E4 RS CE SRS EDO 12

State ex rel. Newman v. Lowery,

61 Ohio |. Abs. 337

Ee as REED kb e546 ese cen saesdunenes 8

State ex rel. Van Curen v. Ohio Adult Parole Authoriiy,

ee CO hs ls CTO tc ccc cc eseveseves 6,8,11

Wagner v. Gilligan,

609 F. 2d 866 (6th Cir. 1979)... ......... eee eee 10

Weinstein v. Bradford,

en oo cc ki ee ec eh ovbwaseubese 11

Zenz v. Alvis,

66 Ohio L. Abs. 606 (Ohio Appeals 2nd

Ce Nee Ch eedeh kere ene eens shee 8

1

DECISIONS BELOW

The decision of the Ohio Supreme Court denying

respondent a writ of mandamus is reported at 45 Ohio St.

2d 298 (1976) and appears in the Appendix hereto

(40 A).

The decision of this Court denying a writ of cer-

torari is reported at 429 U.S. 959 (1976) and appears in

the Appendix hereto (39 A).

The initial decision of the United States District

Court for the Southern District of Ohio, Western Division

and the Report of the Magistrate are unreported and

appear in the Appendix hereto (32 A, 33 A).

The initial decision of the United States Court of

Appeals for the Sixth Circuit is unreported and appears

in the Appendix hereto (30 A).

The order of this Court granting respondent’s

petition for a writ of certiorari, vacating the earlier

judgement of the United States Court of Appeals for the

Sixth Circuit and remanding the case to that court for

further consideration is reported at 442 U.S. 926 (1979)

and appears in the Appendix hereto (29 A).

The order of the Court of Appeals for the Sixth

Circuit remanding the case to the United States District

Court for the Southern District of Ohio, Western Division

is unreported and appears in the Appendix hereto (27 A).

The most recent decision of the United States

District Court for the Southern District of Ohio, Western

Division which is unreported appears in the Appendix

hereto (18 A).

The most recent decision of the United States Court

ef Appeals for the Sixth Circuit, is reported at 641 F. 2d

411 (1981) and appears in the Appendix hereto (3 A).

The decision of the United States Court of Appeals

for the Sixth Circuit denying petitioner’s request for a

rehearing en banc is unreported and appears in the

Appendix hereto (17 A).

2

The decision of the United States Court of Appeals

for the Sixth Circuit staying the mandate is unreported

and appears in the Appendix hereto (16 A).

JURISDICTION

The decision of the United States Court of Appeals

for the Sixth Circuit was entered on February 10, 1981.

Rehearing was denied on March 26, 1981. The order

staying the mandate was issued on April 14, 1981.

Jurisdiction is conferred by 28 U.S.C. Section 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fourteenth Amendment.

Section 1 *** {|N] or shall any state deprive any

person of life, or property, without due process of

law; ***,

Section 2967.01 of the Ohio Revised Code.

“Parole” means the release from confinement

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

authority in its published rules and official minutes.

A parolee so released shall be supervised by the

authority.

Bd *K ok

Section 2967.31 of the Ohio Revised Code.

Notwithstanding any other provision for determin-

ing parole eligibility, a prisoner confined in a state

penal or reformatory institution may be released on

3

parole at any time after serving six months in the

custody of the department of rehabilitation and

correction, when all of the following apply:

(A) The offense for which the prisoner was sen-

tenced was an offense other than aggravated murder

or murder.

(B) The prisoner has not previously been convicted

of any felony for which, pursuant to sentence, he

was confined for thirty days or more in a penal or

reformatory institution in this state or in a similar

institution in any other state or the United States.

(C) The prisoner is not a dangerous offender as

defined in section 2929.01 of the Revised Code.

(D) The prisoner does not need further confine-

ment in a penal or reformatory institution for his

correction or rehabilitation.

(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

unlikely to commit another offense.

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

A.R.JAGO AND WILLIAM J. BROWN,

Petitioners,

vs.

GEORGE D. VAN CUREN,

Respondent.

5

STATEMENT OF THE CASE

After entering a plea of guilty to enbezzlement,

forgery and uttering and passing charges, respondent

(hereinafter Van Curen) was sentenced by the Cuyahoga

County (Ohio) Court of Common Pleas to a term of

incarceration of not less than six (6) nor more than one

hundred (100) years. Under the sentence imposed Van

Curen’s first parole review date would have been March,

1976. However, on January 1, 1974 Ohio’s “shock

parole” statute, Section 2967.31, Ohio Revised Code,

was enacted and Van Curen became eligible for consid-

eration for early parole under the provision of that

statute. Criteria established by O.R.C. § 2967.31 parallel

those used in regular parole determinations: nature of

offense; pattern of criminality; institutional record as to

discipline, work, performance and _ self-improvement

programming; community interest; parole plan and

psychological or physical factors. As a first offender who

had served nearly two years in custody for non-violent

crimes, Mr. Van Curen was eligible for shock parole

review.

On April 17, 1974, a panel consisting of one parole

board member and a hearing officer interviewed Mr. Van

Curen at the London Correctional Institution. The panel

recommended that Van Curen be granted parole on or

after April 23, 1974, and the Ohio Adult Parole Author-

ity (hereinafter OAPA) approved that recommendation.

Upon receipt of information that Van Curen had

not been truthful when he indicated he would be residing

with a relative if paroled and that Van Curen had misrep-

resented the magnitude of his crime, the OAPA on

April 23, 1974, rescinded the initial granted parole

authorization on April 17, 1974 and voted to continue

the case until June, 1974 for further investigation and a

complete report.

6

On June 20, 1974 the parole board met at London

Correctional Institution (Ohio) to conduct a hearing of

Van Curen’s application for shock parole. Based upon

all the facts presented to the OAPA, the Board voted

unanimously to deny Van Curen’s request for parole.

On September 27, 1974 Van Curen initiated an

original action in mandamus in the Supreme Court of

Ohio challenging, on due process grounds, the rescission

of his parole. The writ was denied. State ex rel. Van

Curen v. Ohio Adult Parole Authority, 45 Ohio St.

2d 298 (1976) (40 A). This court denied a petition

for a writ of certiorari on November 15, 1976. Van

Curen v. OAPA, No. 75-6955 (US., filed June, 1976)

(39 A).

On February 14, 1977 Van Curen filed a Petition for

Writ of Habeas Corpus in the United States District

Court for the Southern District of Ohio, Western Division.

On August 1, 1977 Judge Porter referred the case to a

magistrate who filed a report on August 24, 1977 (33 A).

Judge Porter adopted the Magistrate’s Report and denied

the Petition for Writ of Habeas Corpus (32 A). That

decision was affirmed by the United States Court of

Appeals for the Sixth Circuit on June 21, 1978 (30 A).

On June 11, 1979 this Court granted a petition for

writ of certiorari, vacated the judgment, and remanded

the case to the United States Court of Appeals for

the Sixth Circuit for further consideration in light of

Greenholtz v. Inmates of Nebraska Penal Complex,

442 US. 1 (1979) (29 A). The Sixth Circuit, on August 8,

1979, then remanded the case to the District Court (27 A)

which on March 27, 1980 issued a Memorandum and

Order again overruling the Petition for Writ of Habeas

Corpus (18 A).

On February 10, 1981 the United States Court of

Appeals for the Sixth Circuit reversed the decision of

the District Court (3 A).

7

On March 26, 1981 the United States District

Court for the Southern District of Ohio, Western Division

denied petitioner’s request for rehearing en banc (17 A).

On April 14, 1981 the United States Court of

Appeals for the Sixth Circuit issued an order staying the

mandate pending an application to this Court for a writ

of certiorari (16 A).

8

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI

The instant case presents an important issue of

constitutional law regarding rescission of a parole auth-

orization prior to its becoming effective, an action

authorized by state law, as construed by the Supreme

Court of Ohio. The majority decision of the United

States Court of Appeals for the Sixth Circuit found that

“Van Curen had a liberty interest which was based upon

a mutually explicit understanding” following his grant

of a shock parole “on or after April 23, 1974, when

arranged by the Division of Parole.’”

The majority below made this finding despite the

fact Van Curen had procured the tentative grant of parole

by fraud and deceit and in the face of state law which

clearly held that Ohio Parole Board may rescind the

granting of a parole prior to its taking effect. Zenz v.

Alvis, 66 Ohio L. Abs. 606 (Ohio Appeals, 2nd District,

1951); State ex rel. Newman v. Lowery, 61 Ohio L. Abs.

337, aff’d., 157 O.S. 463 (1952); State ex rel. Van Curen

v. Adult Parole Authority, 45 Ohio St. 2d 298 (1976).

Indeed in Ohio there is no parole until one is actually

released from confinement, State ex rel. Newman uv.

Lowery, supra.

The majority reasoned that since Van Curen was

notified that he “had been paroled” and that the “Board

is ordering a parole release in your case” he had a legiti-

mate expectation that his early release would be effected.

The Court went on to find that this expectation con-

stituted a liberty interest (whose) deprivation would

amount to a grievous loss.

Petitioners respectfully submit this is an incorrect

1«Parole on or after’’ is issued in granting a parole in Ohio

since any grant of parole is conditional pending approval and

investigation of the parole plan submitted by the inmate (33 A).

9

analysis of the facts, this Court’s prior decisions and well-

settled Ohio law.

It is impossible under the facts of this case to find

that Van Curen had any expectation of parole. He misled

the panel that saw him concerning the magnitude of his

crime. The amount which was embezzled was closer

to six million dollars ($6,000,000) than the one million

dollars ($1,000,000) he had admitted to before the panel

(5 A, 34 A).

Secondly, Van Curen falsely stated that if released

he would be living with his half brother. The truth in

this case was Van Curen’s sponsor was not a family

member. Van Curen eventually admitted that his sponsor

had been his homosexual lover.

Given these unquestioned falsehoods Van Curen

had no expectation of release from confinement. At best,

he possessed a hope or desire that his lies would go

undetected. This is not an example of ‘“‘mutually explicit

understanding” as defined by this Court in Perry v.

Sindermann, 408 U.S. 593 (1972).

Assuming arguendo that Van Curen had not been

untruthful, there still exists no protectable liberty or

property interest in the case at bar. This Court stated in

Board of Regents v. Roth, 408 U.S. 564 (1972):

Certain attributes of “‘properiy” interests

protected by procedural due _ process

emerge from [Supreme Court] decisions.

To have a property interest in a benefit, a

person clearly must have more than an

abstract need or desire for it. He must

have more than a unilateral expectation

for it. He must, instead, have a legitimate

claim of entitlement to it.

The majority concluded that Van Curen’s “hope for

parole has ripened into a ‘legitimate claim of entitlement”

10

because the Parole Board told him he would have a parole

on or after a certain date. This however is a decision the

majority recognized to be purley discretionary and a

decision in which the inmate has no constitutionally pro-

tected interests. Wagner v. Gilligan, 609 F. 2d 866 (6th

Cir. 1979).

Petitioner submits that an analysis of this Court’s de-

cisions produce the opposite result. In Perry v. Sindermann,

supra relied upon by the majority, a nontenured college

professor had an interest in employment based upon a de

facto tenure program and that interest was protectable.

The interest sprang from the rules and guidelines created

by the college and the respondent’s relience upon them.

However, this case did not involve the question of state

law and its interpretation by the state’s highest court.

In Bishop v. Wood, 426 U.S. 341 (1976) this Court

found thaht a policeman classified as a permanent em-

ployee could be dismissed despite his claim that a city or-

dinance provided that permanent employees could only

be dismissed under certain circumstances and that ordi-

nance therefore created a protected right of continued

employment.

Specifically this Court held:

A property interest in employment can, of

course, be created by ordinance, or by an im-

plied contract. In either case, however, the suf-

ficiency of the claim of entitlement must be

decided by reference to state law. The North

Carolina Supreme Court has held that an en-

forceable expectation of continued public em-

ployment in that State can exist only if the

employer, by statute or contract, has actually

granted some form of guarantee .... Whether

11

such a guarantee has been given can be deter-

mined only by an examination of the particular

statute or ordinance in question. 426 U.S. at 341.

Therefore, Van Curen must look to Ohio law to find

his protected interest. Petitioners assert that Ohio law is

clear and cannot be disputed; parole may be rescinded

without a hearing anytime before actual release. State ex

rel. Van Curen v. Ohio Adult Parole Authority, supra.

The dissent in the appellate court as well as the district

court properly came to this conclusion after finding that

Ohio law did not create a protected interest as the state

statutes did in Greenholtz v. Inmates of the Nebraska

Penal Complex, supra. The majority decision to the con-

trary ignores unambiguous state law and creates a consti-

tutional right where none can exist and thereby rewards

Van Curen’s fraudulent actions.

There exists also a second reason why a writ of cer-

tiorari should be granted in this case. Petitioners assert

here as they did before the appellate court below that the

action is moot. Van Curen brought this action via a peti-

tion for a writ of habeas corpus. Prior to argument he was

placed on parole (the relief he had sought in his petition)

but had not yet been given his final release.

In Weinstein v. Bradford, 423 U.S. 147 (1975) an

inmate claimed he was entitled to certain procedural rights

in connection with his parole eligibility. During the course

of the litigation he was paroled and eventually given his

final release from parole. The action was found moot be-

cause it did not present an issue ‘“‘capable of repetition,

yet evading review” and there was no demonstration that

the inmate would again be subject to the parole system.

This is precisely the case before the Court. Van Curen

has obtained his relief. The appellate court in its decision

has not instructed the district court to grant relief - it

would be futile. A controversy must continue throughout

12

the litigation. Golden v. Zwickler, 394 US. 103, 108

(1969). Here the controversy is at an end. Van Curen

cannot say the question is “capable of repition yet evad-

ing review” as to him unless he is willing to speculate

that his parole will be revoked or he is incarcerated in

Ohio for a new conviction and once again brought

before the Parole Board, granted a conditional parole,

and then have the grant rescinded. Certainly there is no

demonstrated probability that Van Curen will be subject

to the above described action. This action was and is

moot. O ‘Shea v. Littleton, 414 U.S. 488 (1974); Sosna v.

Iowa, 419 U.S. 393 (1975).

The end result of the majority decision is to encum-

ber the parole process in Ohio with “burdensome and un-

warranted”’ procedures that are not mandated by the

Constitution. As this Court noted in Greenholtz, supra,

such a practice should be avoided in order to encourage

state experimentation with parole and not force states to

“abandon or curtail parole”. As noted above, all of this

is being accomplished in an action which is moot.

Respectfully submitted,

WILLIAM J. BROWN

Attorney General

DENNIS L. SIPE

Counsel of Record

Assistant Attorney General

State Office Tower, 26th Floor

30 East Broad Street

Columbus, Ohio 43215

(614) 466-5414

ATTORNEYS FOR PETITIONERS

13

CERTIFICATE OF SERVICE

I hereby certify that the requisite number of copies

of the foregoing Petition For Writ Of Certiorari have been

served on respondent George D. Van Curen, 2112 W. 98th

Street, Cleveland, Ohio by forwarding such copies through

the office of his counsel, Louis A. Jacobs, The Ohio State

University, College of Law, 1659 North High Street,

Columbus, Ohio 43210, by United States mail, postpaid,

this day of May, 1981. I further certify that all parties

required to be served have been so served.

DENNIS L. SIPE

Counsel of Record

Assistant Attorney General

1A

APPENDIX

Page

Opinion, February 10, 1981, United States Court of

Appeals for the Sixth Circuit, Van Curen v. Jago, et

al., No. 80-3351 (6th Cir. 1981), reversing district

NE PENS aes Soe ka Nie 566s c05c00 kana hee oeee 3A

Order, April 14, 1981, United States Court of Appeals

for the Sixth Circuit, staying mandate ........... 16A

Order, March 25, 1981, United States Court of Appeals

for the Sixth Circuit, denying petition for

ay Cth sve SNe e swede sec sub wae e enn 17A

Memorandum and Order, March 27, 1981, United

States District Court for the Southern District

of Ohio, Western Division, overruling petition for

ee I IN oc css ccaacebssdeteraspes 18A

Order, August 8, 1979, United States Court of Appeals

for the Sixth Circuit, remanding the action to the

United States District Court for the Southern District

of Ohio, Western Division for further

IS Trev abuses bias avetawievnaeeee cs 27A

Order, 442 U.S. 926 (June 11, 1979) Supreme Court of

the United States, granting leave to proceed in forma

pauperis, the petition for a writ of certiorari and

remanding the case to the United States Court of

Appeals for the Sixth Circuit for further

consideration in light of Greenholtz v. Inmates

of the Nebraska Penal Complex, 442 U.S. |

Phe teu ueckuvewirke ct4.dshscne de ceubeks 29A

Order, June 21, 1978, United Siates Court of Appeals

for the Sixth Circuit, affirming the judgment of the

United States District Court for the Southern District

of Ohio, Western Division ..................05. 30A

Order, August 24, 1977, United States District Court for

the Southern District of Ohio, Western Division,

2A

approving and adopting the report of the Magistrate

and denying the petition for writ of habeas

oR geo Le eg, oe eee Pere r Tree ee 32A

Report of Magistrate, August 24, 1977, United States

District Court for the Southern District of Ohio,

Western Division, recommending the denial of the

petition for writ of habeas corpus ............... 33A

Order, November 15, 1976, Supreme Court of the

United States, denying the petition for writ of

certiorari to the Supreme Court of Ohio ......... 39A

Opinion, State ex rel Van Curen v. Adult Parole

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

of Ohio, denying writ of mandamus ............. 40A

3A

No. 80-3351

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEORGE D. VAN CUREN,

Petitioner-Appellant,

V.

A. R. JAGO and

WILILIAM J. BROWN,

Respondents- Appellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF OHIO

Decided and Filed February 10, 1981.

Before: LIVELY and KEITH, Circuit Judges; and

PHILLIPS, Senior Circuit Judge.

LIVELY, Circuit Judge, delivered the opinion of the

Court in which KEITH, Circuit Judge, joined. PHILLIPS,

Senior Circuit Judge, (pp. 11-12) delivered a separate

dissenting opinion.

LIVELY, Circuit Judge. In deciding this appeal we

determine what due process requirements must be met before

a state parole authority may rescind its action granting

parole to an inmate effective at a future date. The district

court held that the petitioner, an inmate of an Ohio

correctional facility, “had no constitutionally protectable

expectation in early release, even under the unusual

circumstances presented by this case.” We reverse for the

reasons hereafter set forth.

The facts are not in dispute. Van Curen was sentenced to

not less than six nor more than 100 years incarceration ona

4A

guilty plea to two counts of embezzlement, four counts of

forgery, three counts of uttering and publishing forged

instruments and one count of obtaining money by false

pretense. Under existing law he would have first become

eligible for parole in March 1976. However, effective

January |, 1974, Ohio enacted a “shock parole” statute, Ohio

Revised Code §2967.31.!' On April 17, 1974 a panel of the

Ohio Adult Parole Authority (the OAPA or the Board)

interviewed Van Curen and recommended that he be granted

shock parole “on or after April 23, 1974, when arranged by

the Division of Parole.” The OAPA approved the panel’s

recommendation incorporating it in the minutes of its

regular meeting. Van Curen was given immediate notice of

the decision and a“Statement of Parole Agreement” which he

signed, acknowledging that he understood the conditions of

parole and that he agreed to observe and abide by them. The

opening sentences of this statement were, “The Members of

the Parole Board have agreed that you have earned the

opportunity of parole and eventually a final release from

your present conviction. The Parole Board is therefore

ordering a Parole Release in your case.” Van Curen attended

'§2967.31 Shock parole.

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

mental hygiene and correction, when all of the following apply:

(A) The offense for which the prisoner was sentencd was an offense other than

aggravated murder or murder.

(B) The prisoner has not previously been convicted of any felony for which,

pursuant to sentence, he was confined for thirty days or more in a penal or

reformatory institution in this state or in a similar institution in any other state or

the United States.

(C) The prisoner is not a dangerous offender as defined in section 2929.01 of the

Revised Code.

(D) The prisoner does not need further confinement in a penal or reformatory

institution for his correctin or rehabilitation.

(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 unlikely to

commit another offense.

dA

and completed pre-release classes and was measured for

civilian clothes.

At an April 23, 1974 meeting of the OAPA “special

minutes” were adopted in which the Board rescinded its

earlier grant of parole to Van Curen and continued his case

to the June 1974 meeting. On June 20, 1974 parole was

denied after a hearing. Van Curen brought a mandamus

action against the OAPA. In that action the Supreme Court

of Ohio held that no hearing was required for the parole

authority to rescind an order granting parole at a future date

where rescission occurred before release from confinement.

State ex rel. Van Curen v. Adult Parole Authority, 45 Ohio

St. 2d 298 (1976). The Supreme Court of the United States

denied an application for certiorari. 429 U.S. 959 (1976). Van

Curen then filed a petition for a writ of habeas corpus, which

the district court denied. On appeal this court affirmed

without opinion. 578 F. 2d 1382 (1978). The Supreme Court

granted certiorari, vacated the judgment and remanded the

case to this court “for further consideration in light of

Greenholtz v. Inmates of Nebraska Penal Complex [442 U.S.

1 (1979)]....° 442 U.S. 926 (1979). This court then remanded

to the district court for “determination of whether petitioner,

under the peculiar facts of this case, had a protectable

entitlement to release under the Ohio shock parole statute,

O.R.C. §2967.31; and if such interest did exist, whether he

was accorded adequate procedural due process safeguards.”

Upon remand the district court found that Van Curen’s

grant of parole was rescinded because the OAPA received

information that he had not been truthful before the panel or

in his parole plan.? Van Curen was given no opportunity to

be heard on the truthfulness of this information or to explain

*The evidence at the habeas corpus hearing disclosed that the Board had

unverified information that Van Curen had embezzled $6,000,000 rather than

$1,000,000 as he had stated in his interview. The Board also had informatin that,

contrary to Van Curen’s statement in his parole plan, the person with whom he

planned to live after release was not a relative.

6A

it before rescission. The district court concluded that under

Ohio law there is no protectable interest in early release from

imprisonment until release actually occurs. Since early

release is entirely a matter of grace, a grant of parole may be

revoked without a hearing at any time prior to release. The

court treated the expectation of parole as a mere desire or

hope for release and contrasted it with the expectation of

continued liberty of one already released on parole.

At oral argument it was suggested by the respondent that

this case is moot in view of the fact that Van Curen has now

been paroled. Principal reliance for this contention rests on

the decision of the Supreme Court in Weinstein v. Bradford,

423 U.S. 147 (1975), where an action against a parole

authority was held to be moot when the inmate was paroled.

However, the fact which created mootness was not the

inmate’s release. Rather, the case became moot when this

status “ripened into a complete release from supervision....”

Id. at 148. Since Van Curen remains under the supervision of

the OAPA the present case is not controlled by Weinstein.

We conclude that mootness has not been established and that

the important constitutional issue presented by this appeal

should be decided at this time.

Parole for Ohio prisoners lies wholly within the discretion

of the OAPA. The statutes which provide for parole do not

create a protected liberty interest for due process purposes.

Sharp v. Leonard, 611 F. 2d 136 (6th Cir. 1979); Wagner v.

Gilligan, (609 F. 2d 866 (6th Cir. 1979); State ex rel. Newman

v. Lowery, 157 Ohio St. 463, cert. denied, 344 U.S. 881

(1952). Referring to Ohio’s general parole statute, which

does not differ in this respect from its shock parole statute,

this court stated in Wagner v. Gilligan, supra at 867, “The

Statute does not mandate a presumption of parole release

and, therefore, does not create a protected statutory

entitlement to parole on which appellees can ground their

due process claim.” Thus, the present case may be

distinguished from Greenholtz, supra, where the Supreme

7A

Court found that the Nebraska parole statute which

mandates release in the absence of certain conditions is

“unique in structure and language.” 442 U.S. at 12. The

expectancy of release provided by the Nebraska statute was

found to be entitled to “some measure of constitutional

protection.” /d.

Petitioner concedes that the Ohio statute provides only a

possibility of parole which creates no reasonable expectation

of early release. However, he argues that once a parole

determination has been made its rescission is more like a

revocation of parole than an original parole determination.

The Supreme Court held in Morrisey v. Brewer, 408 U.S. 471

(1972), that certain procedural requirements must be met

before parole may be revoked. Petitioner argues that the

same due process requirements should have been met in the

present case. Petitioner points out that he had far more than

a mere desire for release. He had been told that he had

“earned the opportunity of parole and eventually a final re-

lease,” that the parole board was “ordering a Parole Release

in your case,” and he had signed the statement of parole

agreement. He argues that he had acquired a protected inter-

est ina parole which had been granted but had not yet taken

effect; it was not necessary that he be released before his

interest in parole became entitled to constitutional

protections. The rescission was based on a determination

that he had falsified information, a question of fact upon

which he was entitled to notice and a hearing.

Petitioner also argues that his expectancy of early release

was based on past practice and custom of the OAPA. The

person who was chairman of the OAPA when petitioner's

parole determination was rescinded testified by deposition

that the Board rescinded approximately 25 or 30 paroles of

the six to ten thousand granted each year during his three

year term. Since more than 99 percent of Ohio inmates who

are granted parole are actually released without having their

paroles rescinded, petitioner contends he had a justifiable

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‘expectation of release based on state custom and practice.

This expectation is a “liberty” interest which the state may

not take away without observing procedural due process

requirements, he asserts, citing Perry v. Sindermann, 408

U.S. 593 (1972), and Board of Regents v. Roth, 408 U.S. 564

(1972).

The respondents argue that since the Ohio statute so

clearly creates no legitimate expectancy of early release the

district court properly denied habeas corpus relief.

Responding to petitioner's argument, the respondents assert

that Morrissey v. Brewer, supra, which dealt with revocation

of parole after release, is not controlling. Two distinctions

are noted between parole rescission and parole revocation:

(1) parole revocation deprives the parolee of a liberty already

obtained while rescission at most denies a conditional liberty

merely desired; (2) revocation depends on a retrospective

factual determination with the attendant risk of error in the

absence of a hearing while rescission remains a purely

subjective determination. Under Ohio law, O.R.C. §2967.01

(E), parole is define? as release from confinement by the

OAPA. Until the time of release, respondents contend, an

inmate has nothing more than a hope, certainly not an

entitlement to an early end to incarceration. Even if a hearing

were held prior to rescission of a parole determination, no set

of facts could be established which would require release

under Ohio law. That decision, unlike the one at issue in

Greenholtz, remains purely discretionary.

Our previous judgment was vacated and remanded for

reconsideration in light of Greenholtz v. Inmates of

Nebraska Penal Complex, supra. Though Greenholtz was

decided on the basis of a particular statute, the Court's

opinion deals more generally with the criteria for entitlement

to due process in the parole setting. To determine whether

the due process clause applies a court must inquire into the

nature of the interest which is affected by government action.

The Constitution is not implicated where a state deprives a

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person of something for which he has not more than an

abstract need or desire, or a unilateral expectation. “He

must, instead, have a legitimate claim of entitlement to it.”

442 U.S. at 7. Applying these principles to parole, the

Greenholtz Court held that a state law which holds out the

mere possibility of parole provides no more than a hope for

early release and creates no liberty interest within the

meaning of the due process clause.

In reaching this conclusion the Court noted the differences

between a purely discretionary decision to grant parole anda

fact-related determination to revoke parole once granted. An

obvious difference is that the already paroled individual is

enjoying the relative freedom of the “outside” while an

applicant for parole is incarcerated. A second difference lies

in the nature of the decision to be made in each case. In

parole revocation the first decision is whether the parolee has

actually violated the terms of parole. This is a “wholly

retrospective factual question,” /d. at 9, involving none of the

predictive judgments involved in an_ initial parole

determination. On the other hand, the initial parole-release

decision “is more subtle and depends on an amalgram of

elements, some of which are factual but many of which are

purely subjective appraisals by the Board members based

upon their experience with the difficult and sensitive task of

evaluating the advisability of parole release.” /d. at 9-10.

Thus, Morrissey v. Brewer, supra, does not control the

parole-release decision where a state authority has unfettered

discretion.

It is not the parole-release decision which petitioner

questions, however. it is the action of the Board which

rescinded a previous grant of parole. Is parole rescission

more like the grant of a parole or more like a parole

revocation? It clearly contains elements of both. Since the

inmate has not yet been released, the parole authority is still

engaged to a certain extent in a subjective and predictive

determination. Nevertheless, the same authority has

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previously made the “more subtle” decision in favor of

release and the decision to rescind must necessarily depend.

at least to some extent, on a “retrospective factual

determination.” We do not believe that the nature of the

decisions involved in parole rescission places such

determinations clearly within the ambit of either revocation

or initial release. Rather it is necessary to determine in each

case whether an inmate’s hope for parole has ripened into a

“legitimate claim of entitlement.”

It seems clear to this court that Van Curen had a great deal

more than an abstract desire or unilateral expectation of

early release. In Perry v. Sindermann, supra, the Supreme

Court found a legitimate claim of entitlement on the basis of

state rules or “mutually explicit understandings.” 408 U.S. at

601. A nontenured professor at a public university was held

entitled to a hearing on the university's decision not to renew

his contract after 10 years in the state system. The university

had no tenure policy, but fostered an understanding that

there would be job security after seven years of teaching. In

Bills v. Henderson, F. 2d. (6th Cir. No. 78-1172,

decided October |, 1980), this court found that a prison’s

guidelines for administrative segregation created a legitimate

claim of entitlement to freedom from such segregation.

Notice and a meaningful hearing are required before a

person may be removed from the general prison population

and placed in administrative segregation. The court

specifically recognized that “[l]iberty interests can be created

by state rules or mutually explicit understandings as well as

by statute.” (Slip op. at 3). Compare Durso v. Rowe, 579 F.

2d 1365, 1369 (7th Cir. 1978).

Upon consideration of the entire record this court

concludes that Van Curen had a liberty interest which was

based upon a mutually explicit understanding. Having been

notified that he “ha[d] been paroled” and that “the Board is

ordering a Parole Release in your case,” he had a legitimate

expectation that his early release would be effected. This

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expectation was a liberty interest, the deprivation of which

would indeed constitute a grievous loss. It was an interest

which could not be taken from him without according

petitioner procedural due process.

We do not reack this conclusion on the basis of cases from

jurisdictions which have rules or guidelines that establish

entitlement to parole or permit rescission under narrowly

defined circumstances. E.g., Christopher v. U.S. Board of

Parole, 589 F, 24.924 (7th Cir. 1978); Dravion v. McCall, 584

F. 2d 1208 (2d Cir. 1978); but see, Sexton v. Wise, 494 F. 2d

1176 (Sth Cir. 1974), (all cases involving parole of federal

prisoners). There is no evidence that Ohio has such rules or

guidelines. Nor do we base our decision on the evidence that

less than one percent of Ohio’s parole grants are rescinded.

Cf. Dumschat v. Board of Pardons, 618 F. 2d 216 (2d Cir.),

cert. granted, - U.S. 49 ULS.L.W. 3270( 1980). This

evidence related to paroles generally and there was no proof

directed specifically to shock parole, the comparatively new

Ohio method of release involved in the present case. Rather,

the decision is based on the facts of this case which lead

ineluctably to the conclusion that acts of the OAPA created a

protected liberty interest in Van Curen.

Having determined that due process safeguards were

required in the present case, we now consider what process

was due. The flexibility of the due process requirement has

been stressed many times. What process is due depends on

the nature of the interest involved. It seems clear that all the

procedures prescribed for parole revocation in Morrissey v.

Brewer are not required for rescission. A parole grantee who

has not been released has not yet acquired a liberty which

“includes many of the core values of unqualified liberty.”

Morrissey, 408 U.S. at 482. Rather, such a person, though

still an inmate, has acquired a conditional liberty interest

similar to that of the Nebraska inmates in Greenholtz.

The uncontradicted evidence showed that the OAPA has

no further role in parole release after its minutes are signed

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approving a panel recommendation, unless the inmate is

involved in “negative institutional conduct” or new

disqualifying information is brought to light. A decision on

either of these bases would be necessarily fact-related. We

conclude that due process requires an opportunity for the

parole grantee to be heard after reasonable notice of the

Board's intention to consider rescission. The notice should

state the reason for the decision to consider rescission, and

should disclose the information on which the decision is

based, though sources of the information need not be

disclosed in the notice. This will enable the inmate to prepare

for the hearing. At the hearing the inmate must be permitted

to testify and to file affidavits and documentary evidence.

The hearing will be held either by the OAPA or a panel

thereof. If the Board rescinds parole it must state in writing

the reasons for its action and the evidence relied upon,

though formal findings of fact are not required.

These procedures will make the hearing meaningful and

will provide protection from arbitrary actions. We believe

they will serve the interests of the all parties, including

society's “interest in treating the parolee with basic fairness:

fair treatment...will enhance the chance of rehabilitation by

avoiding reactions to arbitrariness.” Morrissey v. Brewer,

408 U.S. at 484.

The judgment of the district court is reversed.

13A

PHILLIPS, Senior Circuit Judge. (Dissenting.) |

respectfully dissent. | agree that the better practice would

have been for the Ohio Adult Parole Authority to have

conducted a_ hearing before rescinding Van Curen’s

contemplated parole. See Morrissey v. Brewer, 408 U.S. 471,

484 (1972). However, | do not agree that the Fourteenth

Amendment required such a hearing ander the facts of this

case.

In Bishop v. Wood, 426 U.S. 341, 344(1976), the Supreme

Court said: “[T]he sufficiency of a claim of entitlement must

be decided by reference to state law.” Cf. Greenholtz vy.

Nebraska Penal Inmates, 442 U.S. 1, 12 (1978).

Under Ohio law, Van Curen had “no claim of

entitlement.” The State Adult Parole Authority had the

right, at any time before Van Curen was released, to rescind

its previous action granting parole.

In State ex rel. Newman vy. Ohio Pardon and Parole

Commission, 157 Ohio St. 403, 464 (1952), cert. denied, 344

U.S. 881 (1953), the Supreme Court of Ohio said: “The

question of parole of prisoners being in the discretion of the

Pardon and Parole Commission, that commission had

authority to rescind its order or March 9, 1950, granting a

parole effective on or after a future date.”

In Morrissey v. Brewer, supra, 408 U.S. 471, 481 (1972),

which involved the revocation of parole after the release of

the prisoner, and not, as in the present case, the rescission of

an action by parole authorities before release, the Supreme

Court said: “The question is...whether the nature of the

interest is one within the contemplation of the ‘liberty or

property’ language of the Fourteenth Amendment.” The

Court examined the nature of parole revocation and found

that:

The liberty of a parolee enables him to do a wide range

of things open to persons who have never been

convicted of any crime. The parolee has been released

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from prison oased on an evaluation that he shows

reasonable promise of being able to return to society

and function as a responsible, self-reliant person.

Subject to the conditions of his parole, he can be

gainfully employed and is free to be with family and

friends and to form the other enduring attachments of

normal life. Though the State properly subjects him to

many restrictions not applicable to other citizens, his

condition is very different from that of confinement in

prison. He may have been on parole for a number of

years and may be living a relatively normal life at the

time he is faced with revocation. The parolee has relied

on at least an implicit promise that parole will be

revoked only if he fails to live up to the parole

conditions. In many cases, the parolee faces lengthy

incarceration if his parole is revoked. (Footnotes

omitted.) 408 U.S. at 482.

The emphasis of the foregoing quotation is upon the rights

of the prisoner to a due process hearing before revocation of

his parole after his release. Because of the difference between

the nature of parole revocation and parole rescission, | do

not agree with the majority opinion that Van Curen had a

liberty interest within the meaning of the fourteenth

amendment.

In Greenholtz v. Nebraska Penal Inmates, 442 U.S. at 12

the Supreme Court said:

[W]e emphasis that this [Nebraska] statute has unique

structure and language and thus whether any other state

statute provides a protectible entitlement must be

decided on a case-by-case basis.

The Ohio statute, quoted in footnote | of the majority

Opinion, is not the same as the Nebraska statute applied in

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Greenholtz. As interpreted by the Supreme Court of Ohio,

Van Curen did not, in my opinion, have a “legitimate claim

of entitlement” to parole. See Board of Regents v. Roth, 408

U.S. 564, 577 (1971).

Therefore, | would affirm the judgment of the district

court.

16A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 80-3351

GEORGE D. VAN CUREN,

Petitioner-Appellant,

VS.

A.R. JAGO AND WILLIAM J. BROWN,

Respondents- Appellees.

ORDER STAYING MANDATE

Filed April 14, 1981

John P. Hehman, Clerk

ORDERED, That motion to stay mandate herein pending

application to the Supreme Court for writ of certiorari is

hereby granted and the mandate is stayed for thirty days

from this date; provided that, if within such thirty days, the

applicant shall file with the Clerk of this Court the certificate

of the Clerk of the Supreme Court that the certiorari

petition, record, and brief have been filed, the stay shall

continue until the final disposition of the case by the

Supreme Court. Unless this condition is complied with

within such thirty days or any extension thereof made by the

Court or any judge thereof, or if the condition is compliec

with, then upon the filing of copy of an order denying the writ

applied for, the mandate shall issue.

ENTERED BY ORDER OF THE COURT

/s/ By Bernard Green

John D. Hehman, Clerk

17A

No. 80-3351

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEORGE VAN CUREN

Petitioner-Appellant

Vv.

A. R. JAGO, et al.

Respondents- Appellees.

ORDER

BEFORE: LIVELY and KEITH, Circuit Judges; and

PHILLIPS, Senior Circuit Judge.

No member of the court having requested rehearing en

banc, the petition for rehearing filed herein by the

respondents-appellees has been referred to the panel for

disposition. Upon consideration, the court concludes that

rehearing is not required. The petition for rehearing is

denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NO. C-1-77-67

GEORGE D. VAN CUREN

Petitioner,

Vs.

ARNOLD R. JAGO, SUPT.,

Respondent.

MEMORANDUM AND ORDER

This is a habeas corpus case. Petitioner is George D. Van

Curen, an inmate at the Southern Ohio Correctional Facility

[SOCF], who seeks to set aside the rescission of his shock

parole on the ground that the manner in which said rescission

was effected violates Due Process.

The facts are largely uncontested, and may be summarized

briefly. After pleading guilty to embezzlement, forgery, and

uttering and passing forged instruments, petitioner was

sentenced to a term of imprisonment of from six (6) to one

hundred (100) years. In April of 1974, petitioner appeared

before a two-man panel representing the parole board. This

panel recommended to the parole board that petitioner be

granted a shock parole pursuant to Ohio Revised Code

[ORC] §2967.31. The full parole board approved the

recommendation.

Subsequently, however, upon receipt of information that

Van Curen had not been truthful to the panel and that he had

not been truthful in his parole plan, the parole board

rescinded the action taken, and voted to continue the case for

further consideration. The board considered the case again

in June, 1974, and denied the application for shock parole. It

19A

is undisputed that petitioner was not given an opportunity to

be heard on the truthfulness of his application and parole

plan prior to the rescission of his parole. Said rescission was

effected before his actual release.

Van Curen subsequently petitioned the Supreme Court of

the State of Ohio for a writ of habeas corpus, and thereafter

for a writ of mandamus. Both were denied. He then filed the

within petition, which initially was denied upon the Report

and Recommendation of United States Magistrate J.

Vincent Aug, Jr. The Sixth Circuit affirmed, but the United

States Supreme Court vacated the Circuit’s decision and

remanded the case for reconsideration in light of Greenholtz

v. Inmates of the Nebraska Penal and Correctional

Complex, U.S. 99S. Ct. 2100 (1979). The Circuit,

in turn, remanded to this Court and the case now Is ripe for

decision. !

This is a close case, and we feel compelled to observe that

common sense suggests that Van Curen should have been

given a chance to state his side of the story. Nevertheless, in

view of the most recent pronouncements of the Supreme

Court, we must find that such a hearing was not required by

the Constitution.

The Supreme Court in Greenholtz identified two

important differences between parole release and parole

revocation, to which due process unquestionably applies,

Morrisey v. Brewer, 408 U.S. 471 (1972). First, there is the

obvious difference between being deprived of a liberty which

one has, and being denied a conditional liberty that one

merely desires. 99 S. Ct. at 2105. Second, the nature of the

decision involved is different. “[T]he parole revocation

determination actually requires two decisions: whether the

parolee in fact acted in violation of one or more conditions of

parole and whether the parolee should be recommitted either

'Van Curen has been represented in proceedings before this Court by law

students participating in the Clinical Programs at the Ohio State University

College of Law. We congratulate them on the quality of their legal memoranda.

20A

for his or society's benefit.” /d., citing Morrissey v. Brewer,

408 U.S. 471-479 (1972). The Court concluded:

The parole release decision...is more subtle and

depends on an amalgam of elements, some of which

are factual, but many of which are purely subjective

appraisals by the Board members based upon their

experience with the difficult and sensitive task of

evaluating the advisability of parole release. Unlike

the revocation decision, there is no set of facts

which, if shown, mandate a decision favorable to

the individual.

99 S. Ct. at 479. As to the factual determination referred to

above, the Court noted,

The function of legal process, as that concept is

embodied in the Constitution, and in the realm of

factfinding, is to minimize the risk of erroneous

decisions. ...[T]he quantum and quality of the

process due in a particular situation depends upon

the need to serve the purpose of minimizing the risk

of error.

Id. at 2106.

Thus, Greenholtz identifies two prerequisites that must be

satisfied before due process guarantees an inmate aright toa

hearing on early release. First, he must establish that state

law gives rise to a protectable expectation of early release;

and second, he must show that there is a risk of an erroneous

factual determination if he is not given a hearing of some

sort. '@ We find that in the present case, Van Curen had no

'@We need not explore here whether there ever could be a situation in which an

entitlement exists, but in which the benetit could be denied with absolutely no risk

of factual error, even without a hearing. As a practical matter, the risk of error ts

considered in determining what process is due in a particular situation, rather

than in deciding whether due process safeguards apply.

21A

such protectable expectation.

We start here with the nature of the interest at stake.

Morrissey v. Brewer, 408 U.S. at 481. The Supreme Court

stated in Board of Regents v. Roth, 408 U.S. 564, (1972),

Certain attributes of “property” interests

protected by procedural due process emerge from

[Supreme Court] decisions. To have a property

interest in a benefit, a person clearly must have

more than an abstract need or desire for it. He must

have more than a unilateral expectation of it. He

must, instead, have a legitimate claim of

entitlement to it.

22A

** *

Property interests, of course, are not created by

the Constitution. Rather, they are created and their

dimensions are defined by existing rules or

understandings that stem from an independent

source such as state law — rules or understandings

that secure certain benefits and that support claims

of entitlement to those benefits.

408 U.S. at 577. The Court also considered the kind of

interests protected by procedural due process in Perry v.

Sindermann, 408 U.S. 593 (1972), wherein it stated,

We have made clear in Roth...that “property”

interests subject to procedural due process

protection are not limited by a few rigid, technical

forms. Rather, “property” denotes a broad range of

interests that are secured by “existing rules or

understandings.”...A person’s interest in a benefit is

a “property” interest for due process purposes if

there are such rules or mutually explicit

understandings that support his claim of

entitlement to the benefit and that he may invoke at

a hearing.

Id. at 601. Thus, in Perry the Court concluded that a

nontenured college professor had a protectable interest in

employment based on a de facto tenure program. /d. at 600.

This program included an unusual provision in the college's

official Faculty Guide which provided that “{tJhe

Administration of the College wishes the faculty member to

feel that he has permanent tenure as long as his teaching

services are satisfactory and as long as he displays a

cooperative attitude toward his co-workers and his

superiors, and as long as he is happy in his work.” /d.

23A

Moreover, guidelines promulgated by the Coordinating

Board of the state College and University System, upon

which the respondent in Perry legitimately relied, provided

that a person who had been employed as a teacher in the state

college and university system for seven years or more (as the

respondent had been) was entitled to “some form of job

tenure.” /d.

If Morrisey, Perry, and Roth represented the Supreme

Court’s last words on the subject, we might be more inclined

to agree that the actions in this case, including the signing of

Van Curen’s parole agreement by an institutional officer,

gave rise to a protectable expectation by Van Curen. Suchan

expansive reading of the state law entitlement concept would

not be justified under later cases, however.

In Bishop v. Wood, 426 U.S. 341 (1976), petitioner was

employed by the city of Marion, N.C. as a policeman, and

was Classified as a permanent employee. He was dismissed,

however, and he sued on an alleged express or implied right

to continued employment. The heart of the petitioner's case

was a city ordinance which provided that a permanent

employee could be discharged for failure to perform work up

to the standard of his classification, for negligence or

inefficiency, or if he became unfit to perform his duties. He

contended that even absent an express provision, the

ordinance should be read to prohibit discharge for any other

reason, and therefore to confer tenure on all permanent

employees.

The Supreme Court, however, disagreed, based on its

reading of state law. Said the Court:

A property interest in employment can, of

course, be created by ordinance, or by an implied

contract. In either case, however, the sufficiency of

the claim of entitlement must be decided by

reference to state law. The North Carolina

Supreme Court has held that an enforceable

24A

expectation of continued public employment in

that State can exist only if the employer, by statute

or contract, has actually granted some form of

guarantee....Whether such a guarantee has been

given can be determined only by an examination of

the particular statute or ordinance in question.

426 U.S. at 341. Because the Court agreed with the lower

feeral courts that the statute relied upon did not provide such

a guarantee, the presence of an entitlement to continued

employment was rejected.

Bishop teaches, then, that just as property interests are

created by state law, the extent to which proprietary interests

arise also is limited by the same law.? And, in the present

case, state law is fairly unambiguous that no protectable

interest in early release arises until actual release. See State

ex rel. Van Curen v. Ohio Adult Parole Authority, 45 Ohio

St. 2d 298 (1976). See also Wagner v. Gilligan, F.

2Our purpose here is not to explore whether this principle represents a de facto

resurrection of the discredited rights-privileges distinction, despite the Supreme

Court's protestations to the contrary. See Morrissey v. Brewer, 408 U.S. at 481.

We do note, however, that Professor Tribe appears to be corfect in observing that

the

“view that mere expectations, however reasonable and however

demonstrably induced by government, do not amount to interests

protected by due process unless they are grounded in explicit rules of

state law, is founded on the same notion as the rights-privileges

distinction —- namely, that what a state may decline to provide at all,

it can grant on any terms it chooses.”

Tribe, American Constitutional Law §10-10 at 524 (1978). We also agree with

Tribe's observation that acceptance of the proposition that protection should be

provided wherever government invites dependence on certain benefits would

require adherence to the notion that the end to which due process is a means is not

just that of carrying out the state’s own positive choices, but rather that of

assuring fairness generally. /d. at 526. Whatever its merits, this is not the law as we

understand it. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974).

25A

2d . No. 77-3372 (6th Cir. Nov. 19, 1979). (Ohio Revised

Code §2967.03).' In short, early release in Ohio is a matter of

grace, Cox v. Maxwell, 366 F. 2d 765 (6th Cir. 1966), and

may be revoked without a hearing anytime before actual

release.

On the subject of the nature of the interest involved, we

also think it worth noting that the present case is different in

several critical respects from one in which actual release has

occurred. In Morrissey v. Brewer, supra, the decision that a

protectable interest had arisen was based in large part on the

advantages available to one who actually has been released.

Said the Court:

The liberty of a parolee enables him to do a wide

range of things open to persons who have never

been convicted 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-reliant

person. Subject to the conditions of his parole, he

can be gainfully employed and is free to be with

family and friends and to form the other enduring

attachments of norma! life. Though the State

properly subjects him to many restrictions not

applicable to other citizens, his condition is very

different from that of confinement in a prison. He

may have been on parole for a number of years and

may be living a relatively normal life at the time he

is faced with revocation.

‘it should be noted that State ex rel. ban Curen vo Ohio Adult Parole

Authority, supra (the instant case), was before the Ohio Supreme Court on a

petition for a writ of mandamus, and that in Ohio, “[mjandamus lies only to

command performance of an action which the law specifically enjoins as a duty

resulting from an office, trust, or station.” /d. at 299, citing Ohio Revised Code

$2731.01.

26A

408 U.S. at 482. This is, of course, merely an elaboration

on the accepted distinction between being deprived of a

liberty which one has, and being denied a conditional liberty

that one desires. Greenholtz v. Inmates of the Nebraska

Penal and Correctional Complex, 99 S. Ct. at 2105. It serves

to illustrate, however, that Van Curen’s interest in release

had not yet arisen to the level of the interest at stake in

Morrissey. “ ‘It is not sophistic to attach greater importance

to a person's justifiable reliance in maintaining his

conditional freedom so long as he abides by the conditions of

his release, than to his mere anticipation or hope of freedom.’

” Morrissey v. Brewer, 408 U.S, at 482 n. 8, quoting United

States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d

1079, 1086 (2d Cir. 1971).

In sum, although we have no doubt that the actions of the

parole authority in this case worked a grievous loss on the

petitioner, this alone is inadequate to trigger due process

protections. Meachum v. Fano, 427 U.S. 217, 224 (1976).4

ORDER

For the foregoing reasons the Court finds that the

petitioner had no constitutionally protectable expectation in

early release, even under the unusual circumstances

presented by this case. The instant petition for a writ of

habeas corpus therefore is overruled.

SO ORDERED.

/s) David S. Porter

UNITED STATES SENIOR DISTRICT JUDGE

4The Court in Meachum stated, “We reject at the outset the notion that am

grievous loss visited upon a person by the State ts sufficient to invoke the

procedural protections of the Due Process Clause.” 427 U.S. at 224.

27A

NO. 77-3558

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEORGE D. VAN CUREN

Petitioner- Appellant

\.

ARNOLD R. JAGO, Superintendent

Respondent- Appellee,

ORDER

BEFORE: LIVELY and KEITH, Circuit Judges; and

PHILLIPS, Senior Circuit Judge.

In our unpublished order in this case, filed June 21, 1978,

this court held “the petitioner had an expectation of release

on parole at the most and that he had neither a property

interest nor a liberty interest which entitled him to a due

process hearing on rescission of the earlier decision to grant

shock parole.” On petition for certiorari the Supreme Court

vacated the judgment of this court and remanded for further

consideration in light of Greenholtz v. Inmates of Nebrasks

Penal Complex, 442 U.S. (1979). See 442 U.S. .47

U.S.L.W. 3797 (June 12, 1979),

We conclude that application of Greenholtz requires a

determination of whether petitioner, under the peculiar facts

of this case, had a protectable entitlement to release under

the Ohio shock parole statute, O.R.C. §2967.31; and if such

interest did exist, whether he was accorded adequate

procedural due process safeguards. These are determinations

to be made in the first instance by the district court.

The judgment of the district court is vacated, and the cause

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is remanded for further proceedings consistent with this

order.

ENTERED BY ORDER OF THE COURT

s John P. Hehman

Clerk

29A

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON. D.C. 20543

June 11, 1979

Louis A. Jacobs, Esq.

Ohio St. Univ. College of Law

1659 North High St.

Columbus, OH 43210

RE: George D. Van Curen v. Arnold R.

Jago, Superintendent, Southern Ohio

Correctional Facility No. 78-5419

Dear Mr. Jacobs:

The Court today entered the following order in the above-

mentioned case:

The motion of petitioner for leave to proceed in forma

pauperis and the petition for writ of certiorari are granted.

The judgment is vacated and the case is remanded to the

United States Court of Appeals for the Sixth Circuit for

further consideration in light of Greenholtz v. Inmates of

Nebraska Penal Complex, 442 U.S. (1979).

Very truly yours,

MICHAEL RODAK, JR.. Clerk

s Michael Rodak, Jr.

30A

NO. 77-3558

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEORGE D. VAN CUREN

Petitioner-Appellant

ARNOLD R. JAGO, Superintendent

Respondent- Appellee.

ORDER

BEFORE: PHILLIPS, Chief Judge: and LIVELY and

KEITH, Circuit Judges.

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 bya 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 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

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parole does not require a decision ditferent from that reached

in this case.

The judgment of the district court is affirmed.

ENTERED BY ORDER OF THE COURT

s John P. Hehman

Clerk

32A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NO. C-1-77-67

GEORGE D. VAN CUREN

Petitioner,

\.

A. R. JAGO, Supt..

Respondent.

ORDER

This habeas corpus case was submitted 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. |, 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 as its own. Accordingly, for reasons set out inthe

report of the Magistrate, the petition for writ of habeas

corpus is hereby denied.

s| David A. Porter

United States District Judge

33A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NO: C-1-77-67

GEORGE D. VAN CUREN,

Petitioner;

VS.

A. R. JAGO, SUPERINTENDENT,

Respondent.

REPORT OF MAGISTRATE

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 embezzlement,

forgery and uttering and passing forged instruments ii the

Cuyahoga County Court of Common Pleas, petitioner was

sentenced on May 22, 1972 toa 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, 1974, granted him shock parole “on

or after” April 23, 1974.!

'An “on or after” date is used in granting parole since any grant ts conditional

pending approval and investigation of the parole plan which the inmate must

prepare once he is granted parole (Shoemaker, Depo.. p. 30).

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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 asa 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,

attachment D). The Board did not base its action on

information produced by the routine investigation,

mentioned above, to which 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 his family. Snyder

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

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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 tentativey 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

been given 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. McDonell, 418 U.S. 539 (1974). In Wolff, the Court

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.

36A

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 faet. far from giving the petitioner a

definite interest in shock parole which has been granted but

not 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, affd. 157 OLS.

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 (Sth 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 process protections of Morrissey v.

Brewer [discussed infra] applicable to revocation

were not applicable, 494 F. 2d at 1177.

We adopt the reasoning of Sexton to decide this case.

Recent decisions of both the Supreme Court and the

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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 protection 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

Appeals for the Sixth Circuit recently held that prisoners are

not entitled to certain procedural rights before placement in

more restrictive security penitentiaries, or before significant

and adverse effects. The procedural rights which 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, FF. 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). For this reason, it is

38A

recommended that the petition for writ of habeas corpus be

denied.

J. Vincent Aug Jr.

United States Magistrate

39A

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C, 20543

November 15, 1976

Louis A. Jacobs

Ohio State Univ., Law College

1659 North High Street

Columbus, Ohio 43210

RE: George D. Van Curen v. Ohio Adult

Parole Authority, et al. No. 75-6955

Dear Sir:

The Court today denied the petition fora writ of certiorari

in the above-entitled case.

Very truly yours,

MICHAEL RODAK, JR., Clerk

By

Assistant Clerk

40A

THE STATE, EX REL. VAN CUREN v. OHIO ADULT

PAROLE 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.

(No. 74-802. Decided March 24, 1976.)

IN MANDAMUS.

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

relator,

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

Ronney, tor respondents.

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

parole by 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 relator’s

parole 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 respondent to recall its decision of June

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

Relator argues that when respondent granted him parole

effective on or after April 23, 1974, an interest protected by

the Due Process Clause of the Fourteenth Amendment to the

United States Constitution attached to relator and could not

be rescinded or continued by respondent without 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 requiring a

41A

hearing prior to rescinding the grant of a parole before

release.

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

463, involving a similar fact situation, this court stated that

the “* * * [Pardon and Parole] Commission had authority to

rescind its order* * *granting a parole effective on or after a

future date.* * *”

Mandamus lies only to command performance of an

action which the law specially enjoins as a duty resulting

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

having been shown, the writ is denied.

Writ denied.

O'NEILL, C.J... HERBERT, CORRIGAN, STERN,

CELEBREEZE, W. BROWN and P. BROWN, JJ., concur.