Amicus Curiae Brief — Wilkinson v. Dotson

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No. 03-287 : SEP 9g PO

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Jn The

Supreme Court of the United States

REGINALD WILKINSON, Director, et al.,

Petitioners,

WILLIAM DWIGHT DOTSON, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF ON BEHALF OF 2,974 FORMER

AND CURRENT OHIO INMATES

AND NAMED PLAINTIFFS IN

MICHAEL V. GHEE AS AMICI] CURIAE

IN SUPPORT OF RESPONDENTS

NORMAN L. SIRAK

Counsel of Record

LEONARD YELSKY

YELSKY & LONARDO

75 Public Square, Suite 800

Cleveland, Ohio 44113

(216) 781-2550

Counsel for Amici Curtae

QUESTIONS PRESENTED

Heck v. Humphrey, 512 U.S. 477 (1994), holds that a

prisoner cannot advance a claim under 42 U.S.C. § 1983

where success on that claim would “necessarily imply the

invalidity of his conviction or sentence ... unless ... the

conviction or sentence has already been invalidated.”

(Heck, 512 U.S. at 487). This has come to be known as

Heck’s “favorable termination requirement.” The following

questions are presented.

1. When a prisoner invokes § 1983 to challenge

parole proceedings, does Heck’s “favorable termination

requirement” apply where success by the prisoner on the

claim would result only in a new parole hearing and not

necessarily guarantee earlier release from prison?

2. Does a federal court judgment ordering a new

hearing necessarily imply the invalidity of the decision at

the previous parole hearing for purposes of Heck v. Hum-

phrey.

TABLE OF CONTENTS

, Page

INTEREST OF AMICI CURIAE .................ccccceecceeees 1

SUMMARY OF ARGUMENT. .....................ccccccccseeses 2

REESE ES EES SSE Sh a 4

I. CHALLENGING ELIGIBILITY CRITERIA... 4

Administrators have no legal or constitu-

tional authority to interpret and overrule

sentencing decisions of Judges

Il. CHALLENGING SUITABILITY CRITERIA .. 12

It is patently arbitrary to rely upon re-

cords lacking any factual basis as good

cause for continuing Johnson for ten

years

III. ABUSE OF THE TERMINATION RE-

TET ciddiedachschnnbdnseessundosssencosesseoereensces 15

Answering Question 2 affirmatively will

entrench Parole Board autonomy and

render administrators immune from ju-

dicial oversight

IV. PAROLE IS NOT PRISON ADMINISTRA.

Su aad sai abasnedabianeeesspebsessceenscssbenseseneceeses 16

Conduct contemptuous of judicial author-

ity must not be condoned because prison

officials consider the activity prison ad-

ministration

V. DUE PROCESS AND MEANINGFUL HEAR-

IE iedddlebadeddiidksébosebieesscvedseecesasecoes 22

ill

TABLE OF CONTENTS - Continued

Page

A meaningful parole hearing needs to be-

come a protected liberty interest enti-

tling inmates to protections set forth in

Wolff v. McDonnell

EES 30

APPENDIX I

OHIO PAROLE BOARD DECISION & CRIMINAL

HISTORY RISK SCORE FORMS IMPLEMENT-

ING PAROLE GUIDELINES, 1998-2002............... la

APPENDIX II

OHIO PAROLE BOARD DECISION SHEET

(AMENDING APPENDIX II) IMPLEMENTING

PAROLE GUIDELINES, 2003 TO PRESENT ....... 4a

APPENDIX III

DOUGLAS ANKROM V. HARRY HAGEMAN,

DECISION OF THE COURT OF COMMON

PLEAS, FRANKLIN COUNTY, OHIO, FILED

ace en TT 6a

APPENDIX IV

CERTIFIED COPY OF THE OHIO PAROLE BOARD

GUIDELINES, SECOND EDITION, APRIL 1,

2000, REVISED MARCH 28, 2003......... Bound Separately

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Blakely v. Washington, 72 U.S.L.W. 4546 (2004).............. 27

Dotson v. Wilkinson, 329 F. 3d 463 (6th Cir. 2003)

Be icentiteiidestienltbinealiget saber aan re ee 1

Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex, 442 U.S. 1 (1979). ................004. 29

Heck v. Humphrey, 512 U.S. 477 (1994)......... 2, 3, 8, 15, 16

Hemphill v. Ohio Adult Parole Authority, 61 Ohio

oes ee DM Pcavencinnedenseiszacantseninnnegiaiinianiepinbasd 21

Hewitt v. Helms, 459 U.S. 460 (1983)... 29

Mapp v. Ohio, 367 U.S. 643 (1961)............00...... 3, 22, 23, 29

Miller v. Florida, 482 U.S. 423 (1987) ..0............cccccccseeeeeees 11

Sandin v. Conner, 515 U.S. 472 (1995) .............ccccccccceeeeees 29

Wolff v. McDonnell, 418 U.S. 539 (1974)...........0....c0000. 4, 22

STATE CASES

Ankrom v. Harry Hageman, Case #01CVH02-1563,

slip opinion at p.13. [Appendix ITI] .....................cccccceeee 29

Layne v. Ohio Adult Parole Authority, 97 Ohio St.

EO Ee passim

CONSTITUTION

U.S. Const. amendment VI ...................::0ccsccccssssesesssseseeeees 27

TABLE OF AUTHORITIES -— Continued

Page

STATE STATUTES AND RULE

Ohio R.C. § 111.15(D)(1) and (4) 20.00.0000... ceccccceeeteeeeeseeeeeees 23

Ohio R.C. § 119.03(H)(1), (2)a), (1D)... ccccceecceeeeeeeeteeeeeees 23

mente GE TGS. © BIBI e « Biccccccccccccccccccscescocsecconscccssesess 8, 29

Administrative Rule 5120:1-1-07 00.00.00... cccccccceceeeeeeeeeees 21

FEDERAL STATUTE

i 8 2, 4, 11, 15, 16

OHIO PAROLE BOARD POLICY

ODRC Policy 501-36, Parole Board Hearinggs................... 28

ODRC Policy 501-38, Reconsideration of Parole

Board Release Consideration Decision Based

Ss BEY CR cencccncninscnssssnsctasionniemimmnne 28

ODRC Policy No. 501-67, Extended Continuance

ED ancacssncesnscnnemnemmmmanmemnpeasmniaeninnnesetmmmene 14

Ohio Adult Parole Authority Extended Continuance

PEN snccecscesensasinndntnimenteniaatitieseteinseininndenine 14

OHIO PAROLE BOARD GUIDELINES, DECISION FORMS, AFFIDAVIT

Ohio Parole Board Guideline Manual, Part D:

Guideline Application Procedures, § 101 Purpose

gS 6

Ohio Parole Board Guideline Manual, Part D:

Guideline Application Procedures, § 105 Deci-

sions Outside of the Guidelines, at p. 75.................... 6, 7

ee I I I sata iasteatelaiciriaieideaaiaentale 7

TABLE OF AUTHORITIES — Continued

Ohio Parole Board Decision

Ohio Parole Board Affidavit

ETT ect rar Me rear

INTEREST OF AMICI CURIAE

2,974 currently incarcerated or former Ohio inmates

respectfully submit this amici curiae brief pursuant to

Sup. Ct. R. 37.3' in support of the Sixth Circuit’s en banc

decision’ and the causes of Respondents William Dwight

Dotson and Rogerico Johnson.

Respondent Dotson is one of 2,974 Named Plaintiffs in

a complex and all-encompassing class action suit titled

Michael v. Ghee,’ challenging procedures of Ohio’s Adult

Parole Authority [hereafter Parole Board). Michael v. Ghee

was filed July 20, 2001. This litigation is nearly decisional.

An indefinite stay has been imposed pending the outcome

of Wilkinson v. Dotson. If Petitioners’ prevail, our lawsuit

could be dismissed.

This brief can be of assistance because of new evi-

dence developed in Michael v. Ghee uncovering Parole

Board practices. To avoid redundancy, our arguments are

framed by authority from Ohio’s Supreme Court constru-

ing parole guidelines, Department Policies, Parole Guide-

lines, parole panel decisions, one Parole Board affidavit

' Pursuant to Sup. Ct. R. 37.6, counsel for amici represents that it

authored this amici brief, and no counsel for any party in this case

authored this brief in whole or in part. Further, no entity other than

amici, their members or their counsel made a monetary contribution to

the preparation or submission of this brief. Written consent for amici

curiae participation was granted by counsel of record for all parties.

Letters reflecting this consent have been filed with the Clerk pursuant

to Sup. Ct. R. 37.2(a).

* Dotson v. Wilkinson, 329 F. 3d 463 (6th Cir. 2003) (en banc).

* Michael v. Ghee, Case #3:01CV7436, U.S. District Court, N. D. of

Ohio, hereafter Michael v. Ghee.

and a class action trial court decision on state issues.

Discussion of U.S. case law has been held to a minimum.

SUMMARY OF ARGUMENT

Heck’s maxim dictates that a prisoner cannot advance

a claim under 42 U.S.C. § 1983 (hereafter $ 1983) where

success on the merits would “necessarily imply” invalidity

of the conviction or sentence. Ohio’s Parole Board is

virtually autonomous and ungovernable. This agency’s

intervening presence and broad discretion derails any

causal connection between success in federal court and the

possibility of invalidating any state decision. A favorable

ruling for an inmate by Ohio’s Supreme Court, enforced by

the trial court Judge one month later, failed to result in a

prompt discharge or even a routinely granted parole.* Such

is the power of Ohio’s Parole Board, fourteen months and

three parole hearings were required before Gerald Hous-

ton left prison. Claims should not be consigned to the

habeas corpus statute on a speculative chance of engaging

its relief. The term necessarily means inevitable. Given

Gerald Houston’s recent experience, we cannot imagine a

parole related decision issued by either a state or federal

court that could navigate Ohio’s parole process and inevi-

tably result in a new sentence or conviction.

* See Layne v. Ohio Adult Parole Authority, 97 Ohio St. 3d 456 (Oh.

2002), (hereafter Layne.) Gerald Houston should have served 10 to 15

years. See Layne, 97 Ohio St. 3d at 460. At the time of deciding Layne,

he had served 20 years and 10 months. In January of 2003, Allen

County Judge Warren ordered a new hearing consistent with Layne. On

March 22, 2004, 14 months later, Mr. Houston was paroled.

The favorable termination requirement of Heck has

been pounded and molded in the State’s prosecutorial

presses until it has been separated completely from its

malicious prosecution context and transformed into its

own absolute and insular maxim. In its finished state, this

clause has emerged to become a frighteningly efficient

means for performing one chilling task — dismissing

inmate complaints without addressing their merits. Two

District Court decisions on this docket attest to its re-

sourcefulness as legal weaponry. Heck’s favorable termina-

tion requirement needs to be abandoned. Even a tightly

construed remnant of this clause will continue to wreck

havoc in legal trenches.

There is poetic justice in having two inmates before

this Court. Each claim illustrates a major ailment in

administration of Ohio’s criminal law. Dotson’s case

exposes a macro trend of Parole Boards to surreptitiously

impose a sentencing scheme of their own creation upon

inmates, reducing judicial decrees to vain acts in a whole-

sale, sweeping fashion. Johnson’s case describes how a

single judgment can be compromised, showing on a micro

scale how judicial authority is overruled. Placed side by

side, a picture emerges of the full process. On a Richter

scale measuring contempt for the Judiciary, these facts

rival the noxiousness of Mapp v. Ohio.’ We urge this Court

to adopt a finding not contemplated when certiorari was

granted. While inmates have no vested interest in parole,

every inmate deserves a meaningful parole hearing. When

Parole Boards have authority to continue an inmate ten

years or for any period that is not remedial, inmates

* 367 U.S. 643 (1961).

° 4

should have a vested and protected liberty interest in a

meaningful parole hearing mandating the procedural

safeguards described in Wolff v. McDonnell.’ Wolff's

protections are urgently needed to restore judicial primacy

and curb parole abuses.

ARGUMENT I -

CHALLENGING ELIGIBILITY CRITERIA

If a prisoner’s claim for relief cannot be

granted under the restrictive habeas statute, but

does qualify under the civil rights statute due to a

violation of the U.S. Constitution’s Ex Post Facto

Clause, this claim should be cognizable under

§ 1983.

Postponing Parole Eligibility from 2000 to 2012

Dotson was denied parole after serving 15 years.

Under guidelines in force at the time of his conviction, he

was entitled to another hearing within 5 years. In 1998,

new guidelines were adopted and applied retroactively.

Dotson must now serve 17 years before receiving serious

parole consideration. He is challenging the eligibility

criteria governing his suitability for release. Dotson’s

claim should be cognizable under § 1983 for two reasons:

(1) under the restrictive habeas statute, purely prospective

relief aimed at forcing prison officials to follow different

procedures in the future cannot be granted; and (2) the

merits of Dotson’s case — his parole suitability — are not

part of his claim; hence, there is no pertinent state decision

to invalidate.

* 418 U.S. 539, at 563-570 (1974), hereafter Wolff.

Even the Sixth Circuit’s en banc dissent found merit

in Dotson’s claim.

“His [i.e. Dotson’s] appeal is a classic claim

for using the wrong procedures, not for reaching

the wrong result. Further support for this con-

clusion comes from the fact that Dotson’s lawsuit

could just as easily have been cast as a class ac-

tion claim challenging the retroactive application

of Ohio’s parole eligibility guidelines. This would

have placed the case in the same posture as that

presented in Wolff [Wolff v. McDonnell, 418 U.S.

539 (1974)], requesting prospective injunctive re-

lief that seems clearly permissible under the

Court’s rule.”

Dotson’s claim is the nucleus of Michael v. Ghee.

His predicament — receiving a Parole Board continu-

ance exceeding his trial court minimum sentence —

affects every category of crime and every kind of Ohio

prisoner including first time offenders.

Granting Administrators Authority to Overrule

Judges

In federal court, it would be unthinkable to apply a

sentencing guideline suitable for attempted murder when

the offender is guilty of assault. In Ohio, parole panels

have authority to make upward departures of this kind,

achieving a result indirectly that the state could not

” Dotson v. Wilkinson, Appendix A, at p. 29a.

realize in court." Provisions conferring this authority

appear below.

“The guidelines set forth the customary

range of time to be served before release for vari-

ous combinations of offense (seriousness) and of-

fender (risk of recidivism) characteristics. The

Parole Board may depart from the applicable

guideline range for ‘good cause’ provided the spe-

cific written reasons for the departure are re-

corded and a copy given to the offender.

“The Parole Board intends that the guideline

ranges apply to ‘heartland’ cases, the typical

cases that embody the conduct and circum-

stances that fall within the particular guideline

range: In an atypical case, a case to which a par-

ticular guideline linguistically applies but where

the conduct or circumstances differ significantly

from the norm in an important way, the Board

may depart from the guideline range.” (p. 70)

“(a) In General. The Parole Board may ren-

der a decision outside the guidelines for good

cause provided that the offender is furnished, in

writing, with a specific explanation for such ac-

tion. It is in the Parole Board’s discretion to ren-

der a decision above or below the guidelines

provided that there exists an aggravating or

mitigating factor(s) sufficient to warrant a deci-

sion and provided the specific reasons for the

* Petitioners concede this authority to make departures. See Brief

for Petitioners at p. 7.

decision are adequately explained in the notice of

the Parole Board’s action . . . ” (p. 75)

Petitioners offer no apologies for departing from court

decrees. A blessing from this Court has been advanced for

exercising this authority.” It is axiomatic that a parole

candidate must first enter their assigned guideline before

becoming entitled to serious release consideration. This

rule is rigidly applied.'’ An upward departure bonds parole

eligibility to a new crime. This new crime engages a higher

guideline. Parole eligibility and suitability are on hold for

the duration of the guideline engaged by the trial court

conviction. In this manner, parole panels overrule court

judgments with a conviction of their own making, coupled

* See Amici Brief for Respondents, Appendix IV, Ohio Parole Board

Guidelines, at p. 70 and 75. An excerpt of these guidelines is in the

Docket (See Joint Appendix pp. 27-30, Exhibits D, E) and Petitioners

reference the entire manual via a website address (See Brief for

Petitioners at p. 6, fn. 2). Amici’s certified copy of the parole guidelines

includes hand written notations and numerous deletions missing from

the online version. Amici further requests permission to make the Ohio

Parole Board Decision form, in use from 1998 to 2002, part of the record

as Appendix I; and the Ohio Parole Board Decision Sheet, in use fom

2003 to present, part of the record as Appendix II. For good cause, the

guidelines are much more meaningful when examined with these

forms. No prejudice can accrue to Petitioners, for they have designed

these forms and use them. Appellate courts may consider judicially

noticeable government documents not advanced below. See Brief for

Petitioners at p. 8 fn. 3 [where two government documents are added as

a supplement.]

Brief of Petitioners, at pp. 20-22. (“Thus, parole officials exercise

sentencing discretior. and make sentencing decisions.”

" See Michael v. Ghee, Document No. 209, Plaintiffs’ Exhibit 132,

Affidavit of George Brehm (Exhibit I) Mr. Brehm served 116 of 120

months [96%] of his minimum guideline. Because he was not within his

guideline, he did not receive serious consideration for parole.

with an amended sentence postponing parole considera-

tion for years. Upward departures invalidate the trial

court's parole eligibility term, part of the sentence. Heck’s

maxim is being challenged — by the Parole Board, not by

inmates.

Embedded State Decision Construing Parole

Eligibility

Inmates challenged Parole Board authority to make

upward departures. Three cases were consolidated and

heard by Ohio’s Supreme Court. After parole hearings,

each inmate’s assigned guideline matched a crime other

than their conviction, requiring substantially more time

before qualifying for parole. Layne construed the term

eligible for parole in former R.C. § 2967.13(A).”* With its

syllabus in ital, Layne held:

“We recognize that the APA has wide-

ranging discretion in parole matters. [citations

deleted] However, that discretion must yield

when it runs afoul of statutorily based parole eli-

gibility standards and judicially sanctioned plea

agreements. In any parole determination involv-

ing indeterminate sentencing, the Ohio Adult Pa-

role Authority must assign an inmate the offense

score that corresponds to the offense or offenses of

conviction.”"

* See Layne, 97 Ohio St. 3d 458-459 [Wiley Layne], 459-460

{[Houston] and 461 [Lee].

* See Layne, 97 Ohio St. 3d 456, 463-464 (Ohio 2002).

** Layne, 97 Ohio St. 3d at 464.

Given Layne’s holding, you would expect clauses

authorizing upward departures to be deleted. Indicative of

the autonomous and ungovernable nature of Ohio’s Parole

Board, the authority to make upward departures in

offense categories remains fully intact.

Trial Court Eligibility Compared to Guideline

Eligibility

Ohio’s parole guidelines are pitched high. This condi-

tion is exacerbated by upward departures. To discover how

high they are pitched and how they are further impacted

by upward departures, a survey of 600 clients was con-

ducted. This survey first noted the average time required

by the court’s minimum sentence. Next, this trial court

sentence was compared to three benchmarks: (1) the

average time required for entering the guideline matching

the court conviction; (2) the average time required for

entering an inmate’s assigned guideline; and (3) the

average time required for receiving a meaningful hearing

within the assigned guideline. The results even surprised

us.

* In 534 out of 600 cases [89%], the minimum

court sentence averaged 6.4 years. Entry into the

matching guideline was 11.7 years. After serving

6.4 years for a judge, inmat>s had to serve an-

other 5.3 years for an administrator before they

entered the guideline matching their offense of

conviction.”

* See Michael v. Ghee, Document No. 196, Charts and Graphs,

Roman Numeral I.

* For the remaining 66 [out of 600] cases where

sentences penetrated or equaled the matching

guideline, upward departures occurred in all

cases.

* In 600 cases, the minimum sentence averaged

6.3 years. The average time required for entering

the Assigned Guideline, a term reflecting both

upward departures and matching guidelines, was

15.2 years.”

* In 526 out of 600 cases — 74 panels provided no

answer, only “to be determined” — the minimum

sentence averaged 6.1 years. The average time

required for receiving a meaningful hearing was

18.5 years. This additional 12.4 years exceeds the

minimum sentence by over 200%."

Dotson was entitled to serious parole consideration in

1995. After serving 25 years in 2005, he will not receive

serious consideration because he has not served the 32

years now required by an administrator. Without any

show of good cause or any cause at all, inmates are contin-

ued because they are not serving time in their assigned

guideline. Even in 2012, there is no guarantee that Mr.

Dotson will receive serious parole consideration. In our

survey of 600 clients, we found that two out of three

inmates did not receive serious parole consideration until

* See Michael v. Ghee, Document No. 196, Charts and Graphs,

Roman Numeral II.

See Michael v. Ghee, Document No. 196, Charts and Graphs,

Roman Numeral II.

*" See Michael v. Ghee, Document No. 196, Charts and Graphs,

Roman Numeral III.

they reached the end of their guideline.” In 2005, Mr.

Dotson could easily be continued to 2015, which means

that he will have to wait 20 years before receiving serious

parole consideration. None of this time is assessed because

of a finding that Mr. Dotson is not suitable for parole.

Parole Suitability is not even reached. This time is dictated

by a chart with drawn guidelines, whose precise bounda-

ries lack any discernible basis or rationale beyond the

obvious; these time-lines stretch prison sentences.

High pitched guideline ranges and upward departures

structurally lock in vast amounts of time, overruling

parole consideration on the trial court’s terms. Attesting to

Parole Board autonomy, the hearing ordered by a judge

and made a part of the sentence has been degraded from

meaningful release consideration to mere paper eligibility.

The premise supporting these guidelines presupposes that

the judge had no factual findings or legal reasons for

granting an inmate parole after serving their minimum

sentence. A new substantive formula for parole eligibility

and suitability has been created. Guidelines and upward

departures erect a high hurdle before discretion can be

exercised.” The risk of an increased sentence is substan-

tial. If § 1983 cannot be used to challenge this practice,

administrators will continue exercising this ultra vires

authority and do so with impunity.

" See Michael v. Ghee, Document No. 196, Charts and Graphs,

Roman Numeral IV. |66% of inmates placed in high end of guideline]

*® See Miller v. Florida, 482 U.S. 423, 432 (1987).

ARGUMENT II -

CHALLENGING SUITABILITY CRITERIA

Suitability criteria - whether a decision’s

factual basis is fitting and proper - is analogous to

eligibility criteria. A claim alleging ultra vires acts

by administrators coupled with a request to follow

new procedures (i.e. a meaningful hearing) in the

future should qualify under § 1983, because the

habeas statute cannot be engaged.

Embracing and Generating Erroneous Records

At Johnson's review, the Parole Board Member based

her decision on “the inclusion of offenses for which plain-

tiff had never been convicted” or “even charged, in viola-

tion of the Code’s permissible considerations,” and “the

inclusion of prison conduct reports which did not exist.””

Both kinds of erroneous records are highly prejudicial to a

parole candidate. Johnson was not allowed to speak or ask

questions, although Ohio’s Code requires parole panels to

consider oral or written statements.” At this hearing,

Johnson was continued ten years.

Reflective of autonomy, parole panels and prison

record offices embrace and occasionally fabricate errone-

ous records. Irrefutable evidence must bow to internally

generated documents. Certified court records were labori-

ously gathered to corroborate affidavits and prove this

phenomenon. One panel transformed an arrest into a prior

“ Appendix D, Johnson v. Ghee, at p. 53a.

= Appendix A, Dotson v. Wilkinson, at p. 6a.

* Appendix D, Johnson v. Ghee, at p. 53a.

* Appendix A, Dotson v. Wilkinson, at p. 6a.

— and bogus — felony conviction to ratchet upward the Risk

Score.” Another panel transformed seven misdemeanors

into two felonies for the same purpose.” Another panel

embraced bogus juvenile convictions, ignoring a certified

record proving these convictions did not exist.” Suitability

criteria transforms into an indistinguishable blend of

fiction and fact.

Rogerico Johnson has a common last name. Inmate

files often contain records belonging to prisoners sharing

the last name. Donald Hall had records reflecting one

prior conviction and a prior arrest.” Municipal Court

Judge Thomas Gysegem informed the Parole Board of two

Donald Halls in Trumbull County. Judge Gysegem recites

both social security numbers to prove that the Donald Hall

with institution number A265679 was not convicted for a

bad check or arrested for an assault charge in 1991.”

Despite this evidence, these records remained in the

inmate’s file.

* See Michael v. Ghee, Document No. 205, Plaintiffs’ Exhibit 99 A,

Affidavit of Ricky Williams. [After creating a bogus felony conviction,

the panel marked out a correct risk score and inserted an inflated

score.|

** See Michael v. Ghee, Document No. 208, Plaintiffs’ Exhibit 131,

Affidavit of Shauntain White. [Three prior adult or juvenile felonies

dictate an upward departure. Misdemeanors are not to be counted.|

*” See Michael v. Ghee, Document No. 204, Plaintiffs’ Exhibit 71,

Affidavit of Damon Harp. |His Risk Score was raised because of

juvenile offenses, of which he had none.|

* See Michael v. Ghee, Document No. 1, Original Complaint, at

Paragraph 311.

* See Michael v. Ghee, Document No. 1, Plaintiff Exhibit 103

{Letter of Judge Gysegem, Sept. 20, 2000.|

Parole Board panels focus predominantly upon the

crime and disciplinary record. Using crimes for which

Johnson has never been charged and prison conduct

reports which do not exist — at least as to him - strains

credibility for justifying ten days, let alone ten years. It is

patently arbitrary to rely upon records lacking any factual

basis.

Johnson’s Due Process Claim

In District Court, Johnson claimed his due process

rights were violated because he did not receive a meaning-

ful hearing. Like Dotson, Johnson is asking for a new

procedure in the future. This form of relief cannot be

granted under the restrictive habeas statute.

Securing a meaningful parole hearing with a result

that is not arbitrary is no small matter to an Ohio inmate.

The Parole Board has given itself the authority to issue a

continuance for as long as ten years — one more indicia of

autonomy — and this follows the time already served for

the trial court.” While conducting our survey, we discov-

ered that five to ten year continuances are not just com-

mon; they are often necessary to bridge - differences

between the trial court’s minimum sentence and the

assigned guideline range. Given the long span of time

between parole reviews, there is a colorable claim qualify-

ing a meaningful hearing as a protectible liberty interest

under the Due Process Clause.

* See Department of Rehabilitation and Correction Policy No. 501-

67 and Ohio Adult Parole Authority Extended Continuance Policy.

These Policy Statements were never approved by Ohio’s legislature.

ARGUMENT III -

ABUSE OF THE TERMINATION REQUIREMENT

The second question asks whether ordering a new

parole review necessarily invalidates the prior hear-

ing. If ratified, the favorable termination requirement

would further buttress Parole Board autonomy. No

inmate challenge could evade this net, for every review

engages and threatens a prior finding. This precedent

would transform Heck into a Halt sign, disqualifying

any inmate challenge from § 1983 consideration.

Parole Decisions do not Equate to Judicial Decisions

At first reviews, nine out of ten Ohio hearings are

clerical exercises. Inmates receive two scores; (1) convic-

tions should dictate the offense score, and (2) their prior

criminal history tabulates a risk score. These scores

consign an inmate to a guideline. If the candidate has not

penetrated the range required for their crime, the guide-

line placement requires a perfunctory continuance. In

Dotson’s case, his second hearing will be a perfunctory

denial. Discretion is never exercised. Parole decisions are

not equivalent to judicial decrees.

As employed by Ohio’s Attorney General, the favorable

termination requirement of Heck has been transformed

into a robotic claim dismissal machine, capable of labeling

all parole related claims legally frivolous at the starting

gate, notwithstanding evidence suggesting meritorious

issues. Dotson’s and Johnson’s claims attest to this phe-

nomenon.” The simplicity of this clause is also its curse. In

” Wilkinson v. Dotson, Appendix C at p. 50a and 51a, Appendix D

at p. 55a and 56a.

a parole context, Heck’s standard is impossible to satisfy.

The favorable termination requirement could effectively

entrench Parole Board autonomy, nourishing audacity and

further exacerbating ungovernability.

ARGUMENT IV -

PAROLE IS NOT PRISON ADMINISTRATION

Parole officials possess remedial sentencing

authority. Judges possess punitive sentencing

authority. In Ohio, where the statutory scheme for

a first degree crime is 5 to 25 years, this boundary

has been crossed. When parole officials exceed

their authority, the intrusion vitiates trial court

orders. Layne has been emasculated and trivial-

ized by Ohio’s Parole Board bureaucracy to the

point of rendering it ineffectual. Conduct con-

temptuous of judicial authority must not be con-

doned because prison officials have labeled the

challenged activity prison administration.

Wiggling around Layne’s Command

Michael v. Ghee has tracked Ohio’s Parole Board for

three years. The creature in the cross hairs of our scope

has impressed us. A more insular and intractable foe

cannot be fathomed. Petitioners’ statement that myriad

§ 1983 claims were ultimately resolved on state law

grounds by Ohio’s Supreme Court is not true.” We take

pleasure in describing how far wide of the mark this

statement falls. Imagine the Parole Board circling Layne

“ Brief for Petitioners, at p. 47.

under our microscope glass. For the squeamish, beware.

This dissection is not pretty.

Layne’s holding and its use of the words must assign

produces a straightforward, unambiguous order. The

message registered. In an affidavit, the Parole Board

stated:

“The OPB stopped the practice of classifying

offenders’ offense behavior under the Parole

Guidelines based on anything other than their of-

fenses of conviction at approximately noon on

December 18, 2002. It has not resumed that

practice and has no plans to do so. The offense

behaviors of all inmates evaluated under the Pa-

role Guidelines since December 18, 2002 has cor-

responded to the offense or offenses of conviction,

regardless of whether they are incarcerated pur-

suant to a plea agreement or a trial. That will

also be true of all inmates classified under the

Parole guidelines in the future.

“The OPB will rehear all inmates whose of-

fense behavior was previously classified under the

Parole Guidelines as something other than their

offenses of conviction. Those rehearings will occur

regardless of whether the inmate is incarcerated

pursuant to plea bargains or trials and will result

in those inmates’ offense behavior being classified

based on their offenses of conviction.”

On the strength of this affidavit, several Michael v.

Ghee claims were declared moot.

* See Michael v. Ghee, Document No. 135, Defendants’ Motion to

Dismiss for Mootness, Exhibit A, 3rd Affidavit of Richard Spence. (Mr.

Spence is Chief of Quality Assurance for the Ohio Parole Board.|

Paring 3,218 Inmates from Layne Reviews in 34 Days

As a rule, Parole Board’s are secretive government

agencies. Ohio is no exception. In a sharp departure from

customary practice, the website of a newspaper was

enlisted for publishing the names of inmates qualifying for

a Layne review. This occurred on April 27, 2003. 5,316

inmates were listed.” Inexplicably, the newspaper’s

website carried a second list of qualifying inmates on May

31, 2003 numbering 2,098.” In an accompanying article,

no explanation was given for paring down the number of

qualifying inmates from 5,316 to 2,098 in just 34 days.

Between April 27th and May 3lst, wiggle room was

discovered.

Douglas Ankrom qualified for a Layne review on the

lst and 2nd list.” He was convicted of first degree murder.

Category 11 matches his conviction. Question 1 of the

Parole Board Decision form records the offense behavior

score. Instead of Category 11, Category 13 appears,

referring to aggravated murder. Ankrom’s trial court

“ See Michael v. Ghee, Document No. 197, Plaintiffs’ First Ohio

Adult Parole Authori‘y Layne Review List, published on the Cleveland

Plain Dealer website 4/27. 2003.

* See Michael v. Ghee, Document No. 198, Plaintiffs’ Second Ohio

Adult Parole Authority Layne Review List, published on Cleveland

Plain Dealer website 5/31/2003.

“ See Michael v. Ghee; Document No. 199, Plaintiffs’ Exhibit 1-A,

Affidavit of Douglas Ankrom, corroborated by a certified copy of

judgment entry, his Parole Board decision prior to Layne where he was

placed in Category 13 for Aggravated Murder, and his post-Layne

decision dated May 16, 2003

See Amici Brief for Respondents, Appendix I, at p. 1 — Question

judgment is never acknowledged. Reflective of autonomy

and ungovernability, this occurred in 2,098 cases.

Moses Clark appears on the first Layne list.” His

name is missing from the 2nd Layne list. Mr. Clark’s

conviction engages category 10. The Parole Board agrees.”

A score of 10 appears in Question 1. Question 8 on the

parole decision form prior to Layne provided space for an

upward departure.“ For Question 8, his panel determined

that he is a “more serious risk than indicated by his

criminal history risk score.” Instead of getting a higher

risk score, Clark’s panel made a one range offense depar-

ture. Engaging category 11 conflicts with his conviction

and adds five years — as compared to 2% years for a risk

score departure — before qualifying for parole. In defending

this decision, the Parole Board stated:

“Our office has reviewed your file per the

above noted request and determined that the rul-

ing (i.e. Layne) does not apply to your case. The

Parole Board did assign the offense category that

corresponds with your offense(s) of conviction.

Therefore, the continuance rendered to you by

* See Michael v. Ghee, Document No. 208, Plaintiffs’ Exhibit 130,

Affidavit of Moses Clark [corroborated by certified court judgment, his

2001 parole decision and two letters seeking a Layne review. Mr. Clark

appears on page 15 of the first alphabetical Layne List. His risk score is

1. A departure would move him horizontally one range.|

* See Letter from E.M. Colan, corroborating facts in Mr. Moses

affidavit.

“ See Amici Brief for Respondents, Appendix I, at Question 8.

the Parole Board stands and no further action

will be taken at this time.”™

We have 28 identical letters.“ One factor separates

2,098 inmates on the 2nd Layne list from 3,218 inmates

omitted. This common denominator is the location of an

upward departure. If the departure appears in Question 1,

a review is needed to add the score matching the convic-

tion. If this departure occurs on Question 8, Question 1

reflects the trial court score. No review is needed. Like

Clark, 3,218 inmates are serving time required by an

offense score higher than their crime. The Parole Board

considers this detail immaterial.

Layne Frustrated and Circumvented

Via this bureaucratically inspired revelation, Layne

has been reduced to a clerical entry. Ohio’s Supreme Court

has no interest in a hearing’s result. Layne is only con-

cerned with the appearance of the record. Question 1 needs

a certain number, just as Question 4 needs a number

tallying the months served. No further significance at-

taches to either entry.

* See Michael v. Ghee, Document No. 208, Plaintiffs’ Exhibit 130,

Affidavit of Moses Clark, letter from Case Analyst Eric Griffith, dated

July 28, 2003

“ See Michael v. Ghee, Document No. 210, Plaintiffs’ Exhibit 148,

22 Form letters from Parole Board Chairman Gary Croft and 6 Form

letters from Parole Board Case Analyst Eric Griffith.

Layne’s last sentence” has been separated from its

context“ and given a literal interpretation. In lieu of upward

departures, months are added for aggravating factors.” By

adding time for reasons purportedly grounded in Layne, the

Parole Board circuitously acquires a license to do precisely

what Layne prohibited. For second and later reviews post-

Layne, the matrix grid has been disemboweled because

guideline boundaries no longer function as benchmarks for

time-served. Charging, convicting and sentencing an inmate

for new criminal behavior, the practice outlawed by Layne,

continues under a new form of ultra vires authority — simu-

lating the sentencing hearing conducted by a Judge. Admin-

istrators are adding years for aggravating factors or any

other factors the APA deems relevant for behavior springing

from the original crime and already considered by the trial

court. In the process, the settled expectation of an inmate

that they have been fully punished for their crime is totally

undermined. The measure of determination displayed by

parole officials to preserve discretion, even at the cost of

outrageously assaulting and usurping judicial authority, is

shocking and dangerous. More potent evidence of Parole

Board autonomy and ungovernability would be hard to find.

“ 97 Ohio St. 3d at 464. “We further emphasize . . . that the APA,

when considering an inmate for parole, still retains its discretion to

consider any circumstances relating to the offense or offenses of

conviction, including crimes that did not result in conviction, as well as

any other factors the APA deems relevant.”

“ Two authorities follow, Hemphill v. Ohio Adult Parole Authority,

61 Ohio St. 3d 385, 386 (Ohio 1991) and Administrative Rule 5120:1-1-

07. These authorities allow consideration of acquitted conduct along

with other factors in determining where an inmate is to be placed

within their proper guideline range.

“ See Amici Brief for Respondents, Appendix II, at p. 2, Questions 8 and 9.

Compare to Questions 8 and 9 in Amici Brief for Respondents, Appendix I.

ARGUMENT V -

DUE PROCESS AND MEANINGFUL HEARING

Dotson’s case illustrates how Ohio’s Parole

Board plunged headlong into the sentencing

business. Johnson’s case documents how parole

panels make a mockery out of a single court

judgment. Taken together, we have a composite

portrait of how parole administrators usurp

authority from judges. Undisputed facts are suffi-

ciently atrocious to warrant a finding not contem-

plated when certiorari was granted. The

procedural safeguards in Wolff” need to be ex-

tended to parole hearings. These protections,

specifically the maintenance of a record at the

hearing and producing a written and reasoned

decision grounded in evidence developed from the

hearing, will hold parole decision-makers ac-

countable and render their decisions suitable for

judicial review. Most importantly, the primacy of

judicial authority will be restored. While parole is

not a protected liberty interest, a meaningful

hearing needs to become a protected liberty inter-

est because parole panels are administering puni-

tive and illegal modifications to a trial court’s

lawful sentence in an ultra vires manner.

Parole Guidelines Never Approved by Legislature

In 1961, certiorari was granted to review an Ohio

statute making the mere possession or control of obscene

material a felony.“ When facts were fully revealed, the

“ 418 U.S. 539, at 563-570 (1974).

“ Mapp v. Ohio, 367 U.S. 643, at 673 (1961) [Dissent of Justice

Harlan]

seizure of this material turned out to be so appalling,” this

Court abandoned the certified question and produced its

landmark decision Mapp v. Ohio.” We are not suggesting

abandonment of the certified question. We are asking this

Court to address the ultra vires acts of parole administra-

tors and check the resulting usurpation of judicial author-

ity.

Ohio’s parole guidelines were never approved by the

legislature and do not appear in Ohio’s administrative

code.” Mr. Wilkinson, as Director of an Ohio Department,

used a general grant of delegated authority to implement

these rules. In so doing, the penological philosophy sanc-

tioning Ohio's indefinite sentencing scheme has been

totally sabotaged.

There is nothing in Ohio’s Revised Code favoring the

maximum sentence over the minimum sentence. The

minimum sentence rendered by a judge stands equivalent

to the maximum sentence issued by operation of law. Both

sentences should maintain their respective magnetic

properties. The minimum sentence is there to reward

offenders desiring to conform. The maximum sentence is

there for inmates unwilling to address antisocial behavior.

This equilibrium has been destroyed by these new parole

guidelines. Once the hollow bureaucratic exercise mas-

querading as the first parole review is done, the trial court

“ Mapp v. Ohio, 367 U.S. at 644.

“ 367 U.S. 643 (1961).

” See Ohio R.C. § 111.15(D)\(1) and (4) [provision for review and

approval by the General Assembly’s Joint Committee on Agency Rule

Review for new executive rules]. See also Ohio R.C. § 119.03(H)(1),

(2a), (b) [prerequisites not met for inclusion in Ohio’s Administrative

Code.|

minimum sentence is rendered a nullity. Even first time

offenders and model inmates must step off time to their

maximum sentence with no relief in sight.

The Thorough Pre-Hearing Review

Petitioners describe parole officials as conducting a

thorough pre-hearing review of the inmate’s prison and

parole file.’ We disagree. An inmate’s Master File (i.e.

court file) and Unit File (i.e. institution file) can be up to

eight inches thick. These files must never leave the prison.

The pre-hearing review begins when the Central Office

generates a list of parole candidates called Panel Assign-

ments.” 20 to 30 inmates are typically listed on a panel.”

One Parole Board Member and one Hearing Officer are

assigned to a panel on the day of the hearing. The first

time all of the files and all of the decision-makers converge

is on the day of the hearing.” Before this time, neither a

” Brief for Petititoners, at p. 7.

“ See Michael v. Ghee, Document No. 63, Plaintiffs’ Ohio State

Highway Patrol Investigation of Parole Board Hearing Officer Harold

Miller, Testimony of Thomas C. Schneider, Executive Assistant to the

Chairperson on April 6, 1998 at p. 3. [Mr. Schneider generated the

initia] pane] assignments. |

“ See Michael v. Ghee, Document No. 62, Volume I, Plaintiff

Exhibit 8, Memos from Liann Bower, Record Supervisor at Northeast

Pre-Release Center in Cleveland to Unit Managers, regarding Parole

Board Hearings August 2 & 3, 2001, dated July 25, 2001 and September

5 & 6, dated August 3, 2001.

“ See Michael v. Ghee, Document No. 63, Testimony of Executive

Assistant Thomas C. Schneider on April 6, 1998 at p. 32. (“When they

go to the institution that day, that’s you know, the call sheet .. . that’s

when they'll find out where they’re going, who they’re working with and

what inmates they're going to hear. It’s not that they couldn't pull up a

cal] sheet or have a cal] sheet pulled up ahead of time to see who's on a

certain panel, they could do that, but in my mind there'd be no reason

(Continued on following page)

Parole Board Member nor a Hearing Officer knows for

sure which cases they will be hearing that day.”

Decisions will be rendered on every candidate that

day. If there are twenty-six inmates on a panel, the stack

is divided evenly between the Hearing Officer and Parole

Board Member. Each decision-maker taking a file becomes

the primary for that case.” Only the primary decision-

maker becomes acquainted with each file.” The primary

decision-maker conducts their hearing while the other

decision-maker prepares for the next case.” Two decision-

makers initial each decision.” If cases are continued, the

for them too. Because who cares who you see. You know what | mean,

who's on your panel is who you see, you got to get the job done.”|

* See Michael v. Ghee, Document No. 63, Testimony of Parole

Board Member Constance Upper on April 7, 1998 at p. 2-3. See also

Testimony of Hearing Officer Ronald Stevenson on April 22, 1998 at p.

3; Testimony of Hearing Officer Michael Keith on April 7, 1998 at p. 3;

Testimony of Hearing Officer Kathy Hilbert on April 22, 1998 at p. 5.

* See Michael v. Ghee, Document No. 63, Testimony of Hearing

Officer Kathy Hilbert, April 22, 1998 at p. 10. See also Document No.

63, Testimony of Hearing Officer Ronald Stevenson, Apri! 22, 1998 at p.

21.

* See Michael v. Ghee, Document No. 63, Testimony of Parole

Board Member Constance Upper, April 7, 1998, at p. 7; Document No.

63, Testimony of Hearing Officer Ronald Stevenson, April 22, 1998, at p.

25.

* See Michael v. Ghee, Document No. 63, Testimony of Executive

Assistant Thomas C. Schneider on April 6, 1998, pp. 4, 9. See aiso

Document No. 199, Plaintiffs’ Exhibit 4-B, Affidavit of Brad Lee Baeder

{One panel member conducts the hearing. The other person looks at

unrelated records].

* See Michael v. Ghee, Document No. 63, Testimony of Hearing

Officer Ronald Stevenson, April 22, 1998 at p. 20; See also Document

No. 63, Testimony of Parole Board Member Constance Uppers on April

7, 1998 on p. 7. [The non-primary decision-maker gives the file only a

cursory review, if that.|

non-primary decision-maker initials in rapid succession.”

The size of these files and the lack of opportunity to review

files till the day of the hearing, coupled with pressure to

generate twenty to thirty decisions in a day, has a predict-

able and demeaning consequence.” The decision form™ and

information to be verified in a computer” become more

important than the candidate. This helter-skelter process

victimizes more than just inmates. Trial court decisions

and criminal justice are also mortally wounded.

Wrecking Carnage upon Ohio Judicial Decisions

Inmate cases in Layne document destruction to court

judgments. Wiley Layne was convicted of abduction. For

this crime and his criminal history, a guideline of 5 to 7

years applied. The Parole Board found him guilty of

kidnapping and applied a guideline of 12.5 to 17.5 years.”

™ See Michael v. Ghee, Document No. 63, Testimony of Parole

Board Member Larry Matthews on April 6, 1998, p. 9. See also Docu-

ment No. 63, Testimony of Parole Board Member Constance Upper on

April 7, 1998, p. 7; Document No. 63, Testimony of Hearing Officer

Ronald Stevenson on April 22, 1998, p. 6, 7.

“ See Michael v. Ghee, Document No. 62, Volume I, Plaintiff

Exhibit 11, Affidavit of Douglas Lawson [his hearing lasted five to eight

minutes and the hearing officer was rushed, hurried and rude.| See also

Michael v. Ghee, Document No. 204, Plaintiff Exhibit 72, Affidavit of

Sheila Rutkowski |Parole Board Member Denton told her she had 10

minutes so she had better hurry up|

“ See Michael v. Ghee, Document No. 199, Plaintiffs’ Exhibit A-2,

Affidavit of Doug Ankrom {decision written before he entered the room].

“ See Michael v. Ghee, Document No. 199, Plaintiffs’ Exhibit 12-A.

Affidavit of Robert Budd |Hearing’s purpose was to verify data in the

computer. Unit and Master Files were available but never consulted. |

“ See Layne, 97 Ohio St. 3d at 458-459. [Mr. Layne’s complaint was

dismissed as legally frivo!ous.|

Gerald Houston pled guilty to one count of aggravated

burglary, three counts of aggravated robbery and two

counts of attempted murder. Mr. Houston’s crimes re-

quired 10 to 15 years.” The Parole Board gave him a two

range upward departure, finding him guilty of attempted

rape. Houston was never charged with attempted rape.”

His departure required 20 to 25 years. Howard Lee was

convicted of involuntary manslaughter.” He received 3

years for a firearm violation and 9 to 25 years for his

crime. His parole panel found him guilty of aggravated

murder and placed him in Category 13,” a guideline

requiring at least 30 years. Lee would never become

eligible for parole. His maximum sentence expired two

years before his guideline began.

In fifteen file cabinets of client documentation, we can

produce thousands of similar horror stories. Reigning-in

parole decision-makers has just become even more press-

ing, given the current reading of the Sixth Amendment

announced in Blakely v. Washington.”

Exclusion of Ohio’s Judiciary from Parole Decisions

From a Separation of Powers perspective, Federal and

Ohio parole guidelines are polar distances apart. At a

federal sentencing hearing, the trial judge presides and

* See Layne, 97 Ohio St. 3d at 460.

“ See Layne, 97 Ohio St. 3d at 460. (Mr. Houston’s complaint was

dismissed as legally frivolous.]|

* See Layne, 97 Ohio St. 3d at 461. [Only Lee’s complaint survived

a Motion to Dismiss.|

“ See Layne, 97 Ohio St. 3d at 461.

” 72 U.S.L.W. 4546 (2004).

applies guidelines before the Defendant begins their

sentence. Guidelines are applied consistent with the

conviction. A court reporter is present to generate a tran-

script. If a federal inmate is unhappy with a sentencing

decision, they can appeal to a Federal appellate court.

In Ohio, guidelines are applied after the minimum

sentence, minus good time, has been served. The hearing

is conducted in prison by an administrator.” There is no

hearing transcript.’ Only the inmate and decision-makers

may be present. Parole panels have authority to depart

from court judgments, acting as prosecutor, judge and jury.

At a hearing’s conclusion, an inmate can be found guilty of

a crime never sanctioned by a judge or proven in court. For

second and later parole reviews, years can be added for

aggravating factors previously considered at a sentencing

hearing and factored into the minimum sentence. Ohio

inmates have no appellate rights regarding how guidelines

have been applied. Inmates can only appeal to a Quality

Assurance Group composed of the same administrators

making these decisions initially.”

“ See Brief for Petitioners, Supplement at S-10, ODRC Policy 501-

36, Parole Board Hearing Policy, 1V Definitions, Paragraph J. |omitted

from excerpt provided by Petitioner].

” See Brief for Petitioners, Supplement at S-12, ODRC Policy 501-

36, Parole Board Hearing Policy, VI Procedure, Paragraph C(2) and S-

14, Paragraph C(8).

* See Brief for Petitioners, Supplement at S-12, ODRC Policy

501-36, titled Parole Board Hearing Policy, V1 Procedure, Paragraph

C12)

“ See Brief for Petitioners, Supplement at S-17, ODRC Policy 501-

38. Petitioners’ statement that inmates have two court avenues for

contesting parole decisions is not accurate. (Brief for Petitioner at pp.

10-11). Policy No. 501-38 provides an inmate with no court avenues.

The options mentioned, Declaratory Judgment and Mandamus, are

(Continued on following page)

Parole Hearing a Protected Liberty Interest

The total collapse of due process at Johnson’s hearing,

compounded by a ten year continuance, casts an ominous

shadow over this record just as the seizure of evidence

haunted Mapp. Johnson raised this issue at his trial court.

This Court has authority to consider such questions de

novo. Ohio’s Supreme Court has construed the term

eligible for parole in former R.C. § 2967.13(A) as requiring

a meaningful parole hearing.“ In a state trial court deci-

sion consolidating 24 cases and certified as a class action,

a Common Pleas Judge in Franklin County (i.e. Colum-

bus) just held that Ohio inmates are entitled by contract

and by statute to meaningful parole consideration.” There

is no legal or constitutional authority giving administra-

tors the right to overrule judges.

Confidence in criminal jurisprudence has been imper-

iled by ultra vires acts of parole administrators. We under-

stand that Ohio inmates have no vested right to parole.”

However, since Sandin v. Conner” overruled much of the

reasoning in Hewitt v. Helms,” and mandatory language in

a statute or rule has been replaced by a new standard

both illusory. Lack of a record from a parole hearing renders the

Declaratory Judgment route hollow. Parole Board discretion totally

nullifies the Mandamus cause of action.

* See Layne, 97 Ohio St. 3d 456, 463-464 (Ohio 2002). “Inherent in

the statutory language is the expectation that a criminal offender will

receive meaningful consideration for parole.”

* See Ankrom v. Harry Hageman, Case #01CVH02-1563, slip

opinion at p.13 attached hereto as Appendix III.

** See Greenholtz v. Inmates of the Nebraska Penal and Correc-

tional Complex, 442 U.S. 1 (1979).

” 515 US. 472 (1995).

* 459 U.S. 460 (1983).

inquiring as to whether restraints upon freedom impose

an atypical and significant hardship, an opening has been

created for considering a second issue related to parole

within the context of the Due Process Clause. Given the

prosecutorial bend of Ohio’s Parole Board and their au-

thority and proclivity to depart from trial court judgments,

we believe inmates deserve and need a protected liberty

interest in a meaning/ul parole hearing, if judicial primacy

is to be maintained.

CONCLUSION

For the foregoing reasons, as well as arguments in

Respondents respective merit briefs, the Sixth Circuit’s

decision should be affirmed.

Respectfully submitted,

NORMAN L. SIRAK

Counsel of Record

LEONARD W. YELSKY

YELSKY & LONARDO

75 Public Square — 8th Floor

Cleveland, Ohio 44113

Phone (216) 781-2550

Fax (216) 781-6688

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IN THE COURT OF COMMON PLEAS,

FRANKLIN COUNTY, OHIO

Douglas Ankrom, et al., : (Filed 2004 August 31)

Plaintiff, ‘ Case No. 01CVH02-1563

vs. Judge Cain

Harry Hageman, et al.,

Defendants

Don Carlos Scott,

Plaintiff, .

vs. . Case No. OOCVH04-315

The Ohio State Adult Parole‘ Judge Brunner

Authority,

Defendant.

Rufus N. Watkins,

Plaintiff,

The Ohio State Adult Parole: Judge Hogan

Authority, :

Defendant.

Terrance Davis,

Plaintiff,

vs. Case No. 00CVH07-6781

The Ohio State Adult Parole: Judge Miller

Authority, :

Defendant.

Michael C. Poluka,

Plaintiff,

Vs.

The Ohio State Adult Parole :

Authority, ;

Defendant.

~ Case No. 00CVH08-7676

Judge Miller

John R. Adams,

Plaintiff,

Vs.

The Ohio State Adult Parole .

Authority,

Defendant.

~ Case No. 00CVH12-10731

Judge Connor

Yohance A. Edmonds,

Plaintiff,

Vs.

The Ohio State Adult Parole

Authority,

Defendant.

- Case No. 01CVHO01-148

Judge Connor

Gerald L. Raines,

Plaintiff,

vs.

The Ohio State Adult Parole

Authority,

Defendant.

~ Case No. 01CVH01-835

Judge Brunner

Matthew Biddle,

Plaintiff,

vs.

The Ohio State Adult Parole

Authority,

Defendant.

" Case No. 01CVH03-2206

Judge Cain

Tysen Porter,

Plaintiff,

vs.

The Ohio State Adult Parole

Authority, ,

Defendant.

" Case No. 01CVH05-4246

Judge Brunner

Donald A. Harman,

Plaintiff,

vs.

The Ohio State Adult Parole

Authority, .

Defendant.

: Case No. 01CVH05-4713

Judge Brunner

David A. Cunningham,

Plaintiff,

vs.

The Ohio State Adult Parole

Authority, :

Defendant.

" Case No. 01CVH06-5338

Judge Brunner

IN THE COURT OF COMMON PLEAS,

FRANKLIN COUNTY, OHIO

Douglas Ankrom, et al.,

Plaintiff,

vs.

Case No. 01CVH02-1563

Harry Hageman, et al., : Judge Cain

Defendants

Don Carlos Scott,

Plaintiff,

vs. : Case No. 0OOCVH04-315

The Ohio State Adult Parole ; Judge Brunner

Authority,

Defendant.

Rufus N. Watkins,

Plaintiff,

va. Case No. 0OCVH06-5425

The Ohio State Adult Parole Judge Hogan

Authority, '

Defendant.

Terrance Davis,

Plaintiff,

vs. . Case No. 00CVH07-6781

The Ohio State Adult Parole Judge Miller

Authority, :

Defendant.

10a

DECISION AND ENTRY

This matter came before the court on motions for

summary judgment filed by both the plaintiffs and the

defendants. Both sides have filed memoranda contra

and replies to the memoranda contra.

Extensive negotiations have been conducted by the

parties and the defendants have held re-hearings for the

more than 2,400 class members in this case after the

Ohio Supreme Court released its opinion in Layne v.

Ohio Adult Parole Authority, 97 Ohio St. 3d 456. How-

ever, the parties have not been able to resolve all the

issues in the instant litigation and it is now ripe for a

decision on the motions.

The factual background is not in dispute. The

plaintiffs in this class action are inmates in the custody

of the Ohio Department of Rehabilitation and Correc-

tions (ODRC) serving indeterminate sentences under

the “old law”, i.e. the criminal sentencing laws that were

in effect before S.B. 2 became effective on July 1, i996,

and eliminated indeterminate sentences for all but the

most serious offenses. The Ohio General Assembly

refused to make the new laws retroactive — apparently

for no reason other than political expediency — and

thereby created two classes of inmates serving different

amounts of time for the same offenses. The “new” crimi-

nals serve exact sentences as imposed by the sentencing

judges. But the release dates for the “old” criminals are

still determined by the Ohio Adult Parole Authority

(OAPA).

Most of the class members in this litigation were

complaining that they were convicted of or entered a

guilty plea or no contest plea to lesser and fewer crimes

lla

than indicted but were assigned offense categories by

the OAPA that did not correspond to their offenses of

conviction. During the pendency of this action, the Ohio

Supreme Court issued a decision (in December, 2002) in

Layne v. Ohio Adult Parole Authority, 97 Ohio St. 3d

456, and held that “in any parole determination involv-

ing indeterminate sentencing, the OAPA must assign an

inmate the offense category score that corresponds to

the offense or offenses of conviction.”

Since that time, the OAPA has conducted new

parole hearings for about 2500 inmates who came within

the Layne purview and more than half of them have now

been released.

Thus, the claims of numerous class members are

now moot. However, other claims remain and should be

resolved in accordance with the language the Supreme

Court employed in Layne. The complaints revolve

around the Ohio Parole Board Guidelines that the

OAPA issued on March 1, 1998.

The plaintiffs complain that by issuing the new

guidelines the OAPA engaged in rulemaking but did not

promulgate the new rules in accordance with the Ad-

ministrative Procedure Act. They also argue that the

OAPA’s guidelines and practices violate the doctrine of

separation of powers, violate the contracts they entered

as a result of plea negotiation, violate constitutional

guarantees of due process and equal protection, and

violate constitutional prohibitions against double jeop-

ardy and ex post facto enhancement of punishment.

As to the rulemaking challenges, the defense points

out that the Tenth District Court of Appeals (Franklin

County) held in Poluka v. Adult Parole Authority, 2003

12a

Ohio 153, that parole guidelines are not administrative

rules and need not be promulgated in accordance with

the Administrative Procedures Act (APA). The plaintiffs

argue that the Poluka case should not be followed

because it relied on Mayrides v. Ohio Adult Parole

Authority, 1998 Ohio App. LEXIS 1865. Mayrides in-

volved a one-page matrix formerly used by the OAPA as

opposed to the 93-pages of detailed guidelines that are

involved in the current dispute. However, a reading of

those cases shows that they did not turn on the length

or complexity of the guidelines but simply on the princi-

ple, as stated in Mayrides, that “guidelines are not rules

binding on the parole board.” And Poluka did, indeed,

involve the same 98-page guidelines at issue here. The

review court said “there was no legal basis for the trial

court to declare the parole guidelines void.”

As the court pointed out in both cases, the parole

board retains discretion on a case-by-case basis as to

whether to use the guidelines.

Therefore, the guidelines cannot be invalidated due

to failure to follow the APA in their adoption. However,

with or without guidelines, the parole board’s discretion

still is not without limits. The Supreme Court in Layne

said “discretion must yield when it runs afoul of statu-

tory based parole eligibility standards and judicially

sanctioned plea agreements.”

The court in Layne said it is not enough for the

board to declare an inmate eligible for psrole and to

grant a hearing. At page 27, the court said “ ... the

words ‘eligible for parole’ in former R.C. 2967.13(A)

ought to mean something. Inherent in this statutory

13a

language is the expectation that a criminal offender will

receive meaningful consideration for parole.”

The plaintiffs in the instant litigation have pointed out

that these are still numerous situations in which inmates —

although placed in the correct offense categories as required

by Layne — are still being denied “meaningful consideration”

for parole for unreasonable lengths of time (sometimes years)

after becoming eligible for parole.

The guidelines set up a grid system for classifying

an inmate for purposes of parole eligibility. As described

in Poluka at page 3:

“The vertical axis of the grid lists 13 cate-

gories of offenses, one being the least serious

offense and 13 the most serious offense. The

horizontal axis of the grid lists eight risk of re-

cidivism factors. By determining the category

of offense and risk of recidivism applicable to a

particular inmate and then locating the inter-

section of those categories on the grid, the APA

arrives at a range of months to be served by

the inmate before he becomes eligible for pa-

role.”

While the grid may serve its purpose in most cases,

inmates with higher level felonies may have years added

on to their minimum sentences without any reasons to

back up the length of time except an intersection on a

chart. The resulting amount of time to be served may

bear no relationship to the number of years an inmate

could serve under the new law or to the sentence im-

posed by the trial judge. As pointed out by the plaintiffs,

under the guidelines, even when assigned the correct

category, and even with the lowest possible risk score,

everyone convicted of voluntary manslaughter (by trial

l4a

or plea) must serve at least 7 years because the lowest

possible range on the chart is 84 to 120 months. A judge

may have imposed a minimum sentence (with eligibility

in 3.5 years) but the sentence given — whether minimum

or maximum - is not likely to have any effect on the

OAPA’s decision. The process presupposes that the

sentencing judge had no factual findings or legal rea-

sons to sentence the defendant as he or she did.

The Layne court re-affirmed that the OAPA has

discretion to consider all the facts and circumstances

relevant to parole consideration. This court fails to see

how the chart itself is relevant (or why it should be used

at all) when the offender’s risk score is zero or close to

it.

Layne said that while the OAPA retains broad

discretion, it is not enough to simply say an inmate is

eligible for parole. Parole eligibility is meaningless when

the minimum term of a range exceeds the date of statu-

tory eligibility. While Layne was addressing placement

of inmates in the correct offense categories, the same

injustice is occurring with inmates whose first meaning-

ful chance at parole comes several years after eligibility

due to the operation of The Guideline Chart. The inmate

is being denied the essence of true parole eligibility i.e.

meaningful consideration for parole.

The defense argues that the OAPA has, indeed,

departed from the “discretionary” guidelines from time

to time. Thus, the guidelines do not dictate parole

eligibility. However, the number of downward depar-

tures is negligible. Certainly, they are not frequent

enough to show that “meaningful” considerations are

routinely occurring. To the contrary, the numbers show

15a

that the OAPA has intentionally disregarded new

statutory sanctions for the same offenses as well as the

sentences rendered by judges. S.B. 2’s new definite

sentences coincide very closely with the old minimum

ranges of indefinite sentences. But the OAPA’s “guide-

line” usually trump all of the above.

Use of the guidelines to deny meaningful considera-

tion at earliest eligibility not only violates the language

of Layne and the doctrine of separation of powers, it

denies rights of contract to inmates who entered negoti-

ated plea agreements.

Most inmates who are subject to the new guidelines

entered prison when the old matrix was being used and

they had every reason to believe its use would continue.

Plaintiffs justifiably relied on the OAPA’s longstanding

and widely publicized application of the matrix.

They were also told that “good time” could reduce

their minimum sentences by one-third. But under

current practices, good time means nothing. Good time

might get an inmate a hearing at an earlier date than

otherwise, but it does not affect the time an inmate

must serve under the guidelines. The guidelines pre-

sume good time. So, good behavior will not yield a

downward departure. Not only is “good time” gone, so is

the likelihood of being granted parole at or soon after

the time the inmate becomes eligible. Some are serving

two or three times the length of time they would be

serving for the same offense either under the new laws

or the old parole policies.

A plea agreement is a contract between the state

and the defendant. The law in effect at the time the

contact is entered is part of the contract as well as the

16a

usage and customs relied on by the defendants. The

defendants performed their parts by waiving trials and

entering pleas. However, in 1998, the state unilaterally

changed the terms. Defendants have the right to expect

that their parole considerations will be conducted under

the same rules and policies that were being used when

they entered their pleas.

The guidelines in use since 1998 have effectively

imposed additional punishment and admittedly are

being applied retrospectively. But because of the dic-

tates in Layne and the basic law of contracts, the court

need not address the “ex post facto” and other constitu-

tional arguments advanced by the plaintiffs.

Therefore, the court hereby sustains plaintiff's

Motion for Summary Judgment and issues the following

declaratory judgment.

(1) That the plaintiff class is entitled by con-

tract and by statute to meaningful parole con-

sideration that consists of true eligibility

(rather than mere paper eligibility) and a pa-

role hearing that complies with the policies and

practices adopted by the OAPA after the Layne

decision.

(2) That the defendants deny plaintiff class

members contract rights and meaningful parole

consideration whenever they:

(a) Assign of class member a guideline

range which has a minimum term that

exceeds the length of time a class mem-

ber must serve before becoming eligible

for parole under the law, in effect at the

time of the plea;

17a

(b) Assign a class member an offense

category that does not correspond to the

class member’s offense (or offenses) of

conviction, or assign a class member an

offense category that nominally corre-

sponds but which is elevated based

upon the defendant’s independent de-

termination that the class member

committed a distinct offense (such as

kidnapping in connection with rape) for

which he was not convicted;

than five years;

(d) Deny a class member a hearing or

re-hearing that complies with defen-

dant’s post-Layne practices and policies

The defendant is hereby ordered to immediately re-

hear and grant meaningful consideration for parole to any

class member who has had his or her plea agreement

contracts breached in the manner described above. And

new hearings must be granted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.