Petition for Writ of Certiorari — Alabama Board of Pardons & Paroles v. Ellard

OV 23 BST

87-849

NO. : a CLERK

IN THE SUPREME COURT Of THE

UNITED STATES

Supreme nae U.S,

ea)

|

i

OCTOBER TERM, 1987

ALABAMA BOARD OF PARDONS AND

PAROLES, EALON M. LAMBERT, JOHN

THOMAS PORTER, and RAY MORROW,

Members of the Board of Pardons

and Paroles of the State of

Alabama, and the

STATE OF ALABAMA,

PETITIONERS,

vs.

RICHARD MARK ELLARD,

RESPONDENT,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OF

DON SIEGELMAN

ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

Alabama State House

ll South Union Street

Montgomery, Alabama 36130

(205) 261-7300

NO.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1987

ALABAMA BOARD OF PARDONS AND

PAROLES, EALON M. LAMBERT, JOHN

THOMAS PORTER, and RAY MORROW,

Members of the Board of Pardons

and Paroles of the State of

Alabama, and the

STATE OF ALABAMA,

PETITIONERS,

VS .

RICHARD MARK ELLARD,

RESPONDENT,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OF 1

DON SIEGELMAN

ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7300

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

QUESTIONS PRESENTED

The Alabama Board of Pardons and

Paroles, the members thereof, and the

State of Alabama, Petitioners,

respectfully pray that a writ of

certiorari issue to the Honorable United

States Court of Appeals for the Eleventh

Circuit to review the following

questions:

1. Where a state convict is serving

concurrent life sentences from two states

in the prisons of one state and is then,

issued a parole, which has no effect on

the prisoner Or his sentences, except to

transfer him to the other state's

prisons, does such a parole create any

constitutionally pro-tected liberty

interest?

2. TO what extent do state parole

Statutes, as authoritatively interpreted

by state courts, control the nature of

State paroles and the validity of a given

parole and to what extent are state court

interpretations of such statutes binding

on the federal courts?

THE PARTIES

In the United States District Court

for the Middle District of Alabama and

the United States Court of Appeals for

the Eleventh Circuit, the parties were:

The Petitioners herein, to wit, the State

of Alabama, the Alabama Board of Pardons

and Paroles and the members thereof, and

the Respondent herein, to wit, Richard

Mark Ellard.

II

TABLE OF CONTENTS

QUESTIONS PRESENTED-----------~

PARTIES-----------~-~-~~ ~~.

TABLE OF CONSTITUTIONAL

PROVISIONS-------------------

TARA: OF CARRS-—-..-............

TABLE OF STATUTES-------------~-~

OPINIONS AND ORDERS BELOW------

JURISDTICTION~ += 60 nl

CONSTITUTIONAL PROVISIONS

I NVOLVED---------~------------

STATUTORY PROVISIONS

I NVOLVE D---------------------

STATEMENT OF THE CASE----------

STATEMENT OF THE FACTS---------

I. IN RE: LIBERTY

I NTEREST------------------

II. IN RE: THE DEFICIENCY

IN THE MATERIALS BEFORE

THE STATE PAROLE BOARD AT

THE TIME OF PAROLE--------

SUMMARY OF THE ARGUMENT--------

I ac cincasiaiiiatctchdiilystiiaitraits i anit

ante,

TABLE OF CONTENTS (CON'T)

DOES A PAROLE WHICH MERELY

TRANSFERS A CONVICT-

PRISONER FROM ONE STATE'S

PRISONS TO ANOTHER STATE'S

PRISONS, CREATE A

CONSTITUTIONALLY PROTECTED

LIBERTY INTERSTS?

A NOVEL QUESTION DECIDED

INCONSISTENTLY WITH PRIOR

DECISIONS OF THIS

HONORABLE COURT---~-~----~---

II. THE VALIDITY OF A

STATE PAROLE IS A STATE

LAW QUESTION

THE DECISION AND OPINION

OF THE ELEVENTH CIRCUIT

CONFLICTS WITH THE

CONTROLING DECISIONS

OF THIS HONORABLE COURT---

CONCLUS LON@----- 99-0 e rer

CERTIFICATE OF SERVICE---------

ii

Page(s)

31

45

57

59

TABLE OF CONSTITUTIONAL PROVISIONS

Page(s)

UNITED STATES CONSTITUTION----- 3

Amendment Pourteen-------- 3, 48

TABLE OF CASES

Adderly v. Florida,

385 U.S. 39, 17

L.Ed.2d 149, 87 Ss.

Ct. 242 (1966)-------------- 55

Bearden v. Georgia,

461 U.S. 660, 71

L.Ed.2d 221, 103

S.Ct. 2054 (1983) ee 36, 50

Board of Pardons v. Allen,

482 U.S. , 96 L.Ed.2d

303, 107 S.Ct. 2415 (1987)-- 36, 53

Bond v. Oklahoma,

546 F.2d 1369

(10th Cir, 1976)------------ 47

Coleman v. Alabama,

827 F.2d 1469

(llth Cir, 1987)------------ 47

Connecticut Board of

Pardons v. Dumschat,

452 U.S. 458, 69

L.Ed.2d 158, 101

S.Ct. 2460 (1981)----------- 15, 30,

35, 48, 53

iii

TABLE OF CASE

Coombs v. Tennessee,

425 U.S. 954, 48

L.Ed.2d 198, 96

S.Ct. 1731 (1976)

Coombs v. Tennessee,

530 F.2d 695

CONT.

(6th Cit, 1976 )-<-cnc~<c----

Douglas v. Buder,

412 U.S. 430, 37

L.Ed.2d 52, 93

S.Ct. 2199 (1973)

Ellard v. Alabama Board

of Pardons And Paroles,

824 F.2d 937

(llth Cir, 1987)------------

Ellard v. Alabama Board

of Pardons And Paroles,

F.2d (llth Cir,

September 24, 1987)

Ellard v. State,

474 So.2d 743

(Ala.Crim.App, 1984)

Ellard v. State,

(Unrep. Cir. Ct. of

Montgomery Co, Ala,

Aug. 31, 1983)--------------

iv

Page(s)

47

47

36

11-13, 52

TABLE OF CASES (CONT. )

Page(s )

Engle v. Isaac,

456 U.S. 107, 71

L.Ed.2d 783, 102

S.Ct. 1558 (1982)----------- 47

Ex parte Ellard,

447 So.2d 758

(Ala, 1985)----------------- 13-15

Gagnon v. Scarpelli

411 U.S. 778, 36

L.Ed.2d 656, 93

s.Ct. 1756 (1973) ee 36

Grace v. Butterworth,

635 F.2d 1 (ist Cir,

1980 )----------------------- 47

Greenholtz v. Inmates of

the Neb. Pen. And

Corr. Comp., —

442 U.S. 1, 60

L.Ed.2d 668, 99

S.Ct. 2100 (1979)----------- 30, 36,

48, 53, 54

Illinois v. Vitale,

447 U.S. 410, 65

L.Ed.2d 228, 100

S.Ct. 2260 (1980)----------- 55

Jago v. Van Curen,

454 U.S. 14, 70

L.Ed.2d 13, 102

§.Ct. 31 (1981) i emcee me ai aaa 15, 28,

36-38, 43

TABLE OF CASES (CONT.)

Page(s)

Martinez v. California,

444 U.S. 277, 62

L.Ed.2d 481, 100

§.Cct. 553 (1980)------------ 32

Mendiola v. Estelle,

635 F.2d 487

(Sth Cir, 1981)------------- 47

Morrissey Vv. Brewer,

408 U.S. 471, 33

L.Ed.2d 484, 92 |

S.Ct. 2593 (1972)----------- o: 4. 34,

36, 39-43

New York v. Ferber,

458 U.S. 747, 73

L.Ed.2d 1113, 102

S.Ct. 3348 (1982)<---------- 55

Olim v. Wakinekona,

461 U.S. 238, 75

L.Ed.2d 813, 103 te

S.Ct. 1741 (1983)----------- 29, 42

Payton v. United States,

679 F.2d 475 (5th

Cir, Unit "8°, 1962 )-<<------ 32

Ponzi v. Fessenden,

258 U.S. 254, 66

L.Ed. 607, 42

S.Ct. 309, 22 A.L.R.

879 (1922)------------------ 42

vi

TABLE OF CASES (CONT. )

Page(s)

Posadas de P.R. Asso.

Vv. Tourism Co. of P.R.,

478 U.S. , 92 L.Ed.24d

266, 106 S.Ct. 2968 )

(1986 )-------------~--~~---~ 31, 55

Sellers vy. Thompson,

452 So.2d 460

(Ala, 1964)-<-<--............. 32

Taitt v. United States,

770 F.2d 890

(10th Cir, 1985)-------..... 32

Thomas v. Sellers,

691 F.2d 487

(Lith Cir, 19867)----......... 4

Wolff.v. McDonnell,

418 U.S. 539, 41 .

L.Ed.2d 935, 94 S.Ct.

2963 (1974)----------------~- 36

TABLE OF STATUTES

Page(s)

Code of Alabama, 1975,

Title 15, Section 15-22-24-- 6, 13, 20,

51

Section 15-22-25-- 5, 23, 25,

26

Section 15-22-26-- 5, 6

vii

TABLE OF STATUTES (CONT. )

Page(s)

Code of Alabama, 1975,

Title 15, Section 15-22-28-- 6

Section 15-22-38-- 7

Section 15-22-39-- 7

Section 15-22-40-- 7

United States Code,

Title 28, Section 1254------ 3

Section 2254------ 15, 47

Title 42, Section 1983------ 53

viii

NO.

IN THE SUPREME COURT- OF THE

UNITED STATES

OCTOBER TERM, 1987

ALABAMA BOARD OF PARDONS .AND

PAROLES, EALON M. LAMBERT, JOHN

THOMAS PORTER, and RAY MORROW,

Members of the Board of Pardons

and Paroles of the State of

~ Alabama, and the

STATE OF ALABAMA,

PETITIONERS,

vs.

RICHARD MARK ELLARD,

RESPONDANT,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINIONS AND ORDERS BELOW

The opinions and orders of the

United States District Court for the

Middle District Court of Alabama are not

reported but are submitted as Appendix

"A" to this petition.

Soe. ee ee ee

CD ea th oR ATs '. hy eee Fee

The opinion and orders of the United

States Court of Appeals for the Eleventh

Circuit are reported as follows:

Ellard v. Alabama Board of ‘

Pardons and Paroles, 824 F.2d

937 (llth Cir, 1987) .

3 and

Ellard v. Alabama Board of

Pardons and Paroles, ___ F.2d

___ (llth Cir, Sept. 24, 1987)

The same are submitted as Appendix

"B" to this petition.

JURISDICTION

The decision of the United States

Court of Appeals was issued August 19,

1987; your petitioners’ application for

rehearing, suggesting in banc

consideration, was denied on September

24, 1987. The mandate is now stayed

until November 24, 1987, or until the

dispostion of this petition. See

Appendix "B".

This Honorable Court's Jurisdiction

is invoked under Title 28, Section

1254(1), United States Code.

CONSTITUTIONAL PROVISIONS INVOLVED

At issue in this case is an Alabama

Parole which caused the Respondent, who

had been serving concurrant Alabama and

Georgia life sentences in Alabama's

prisons, to be transfered to Georgia's

Prisons to continue serving the sentences

there; the issue is whether such a parole

Created a liberty interest within the

meaning of Section 1 the Fourteenth

Amendment to the Constitution of the

United States, relevent language

reading:

"... NOr shall a state deprive

any person of ...liberty...

without due process of law..."

STATUTORY PROVISIONS INVOLVED

At issue in this case is whether the

United States Court of Appeals was

authorized to reject the State Court

construction of Alabama's parole

Statutes. These statutes are voluminous

and are set out in Appendix "es

STATEMENT OF TRE CASE

Alabama law provides for parole is

the case of most prison sentences. See

the statutes set out in Appendix "C".

The decision to parole is entirely

withing the descresion of the Board of

Pardons and Paroles, and, therefore, the

statutes create no liberty interst in

being paroled. Thomas _v. Sellers, 691

F.2d 487 (llth Cir, 1983), cited with

approval for this proposition by the

panel in this case, Ellard v. Board, 824

F.2d 937, 942 (llth Cir, 1987). However,

the Board's descresion in granting

paroles is severly restricted by the

State statutes. Before it is authorized

to grant any parole the Board must

4

obtain, "...a complete statement of the

Crime...", for which the prisoner was

sentenced, which is to include, "...the

circumstances of such crime...."

(15-22-25 Code of Alabama, 1975; Appendix

"C".) The Board is also to obtain any

available reports of the prisoner's

"...mental and psychiatric condition and

history...." (Ibid) and a "...complete

Criminal record of such prisoner...."

(Ibid)

Having amassed this data, the Board

in its discretion may conditionally

release to the free world a parolable

prisoner, who is not subject to detainer,

if the Board determines that there is a

reasonable probability that the prisoner

Will live "... at liberty without

violating the law and that his release is

not imcompatible with the welfare of

society...." 15-22-26; Appendix "C".

The Board must also be satisfied that the

5

prisoner will be suitably employed in

self sustaining employment and will not

become a public charge. §15-22-28(d);

Appendix "C".

Alabama prisoners, who are subject

to detainers may be paroled to the

detainers. However, if such a prisoner

satifies all of his detainers before

completing his Alabama sentence, he may

not be released from custody without an

apptopriate order from the Board.

Section 15-22-24(i); Ampendix "C".

The nature of an Alabama parole is

set out in Section 15-22-26, Code of

Alabama, 1975:

",...If the board shall so

determine, such prisoner Shall

be allowed to go upon parole

outside of prison walls and

enclosure upon such terms and

conditions as the board shall

prescribe, but to remain while

thus on parole in the legal

custody of the warden of the

prison from which he is paroled

until the expiration of the

PE Ee a ee

maximum term specified in his

sentence or until he is fully

pardoned..." (Appendix "C")

The duties of the Board are

mandatory, but its powers are strictly

construed. Section 15-22-38; Appendix

"Cc". A member of the Board who knowingly

Or willfully neglects or fails to perform

as. required, commits a felony. Section

15-22-39; Appendix "C". Any parole

granted contrary to the provisions of the

statutes, is null and void. Section

15-22-40; Appendix "Cc".

Prior to March 2, 1981, the

Respondent, Richard Mark Ellard, was

serving concurrent Alabama and Georgia

life sentences for two different murders.

He was serving these sentences in

Alabama's prisons. On March 2, 1981, the

Board issued a certificate of parole to

Ellard, which placed Ellard in the

custody of the State of Georgia, to

continue serving his Alabama and his

Georgia sentences in Georgia prisons.

Since Ellard was being transferred to

Georgia's prisons, no provision was made

for him to maintain employment or report

to a parole supervisor, but he was

required to report to the Board, if he

was ever released by Georgia. Pursuant

to the parole, he was transferred to

Georgia's prisons to continue serving

both states’ sentences there. (R. Vol.

I, D.5, R-EX.A, pp. 22-23)

Within weeks.of the parole, it

became apparant that the Board may not

have had before it the materials required

by the Alabama statutes before any parole

may be issued, when it issued the Ellard

parole. The Board ordered an investi-

gation and, when this investigation

revealed gross deficiencies in the

materials before the Boardl, the Board

obtained temporary custody of Ellard from

Georgia in order to hold hearings in

accordance with Morrisey v. Brewer, (408

U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593

(1$72]). After such hearings, the Board

nuffified the parole. Respondent Ellard

was then returned to Georgia's prisons to

continue serving both of his sentences

there, and he remains there and will

remain there until and unless Georgia

moves to release him.2 (R. Vol. I, D.5,

R. Ex "A," pp 2-10)

Respondent Ellard obtained review of

the Board's action by a civil action in

See Appendix "E". Compare parts I, II

and III with part IV. These deficiencies

will be outlined in the Statement of the

facts.

2tt is an undeniable fact that Ellard's

situation before the nullification and

his situation thereafter were identical.

Por this reason the State of Alabama has

argued throughout this litigation that

Ellard's claim is moot.

9

the nature of common law certiorari in

the Circuit Court of Montgomery County,

Alabama. On August 31, 1983, the Circuit

Court, after reviewing the records of the

Parole Board, affirmed the Board's action

in nullifying the parole. Circuit Judge

H. Mark Kennedy wrote in part:

"...In the instant case which

is before this Court for

review, it is apparent from the

record that at the time

Ellard's parole was granted,

the Board did not have before

it a complete investigative

file on the inmate's social and

criminal record. For that

reason, at the time of

issuance, the Board was in

violation of §15-22-25(b) of

the Code of Alabama.

"Due to the strict construction

and mandatory limitations and

restrictions language in~™

§15-22-38, the Board is

required by law to follow the

explicit statutory scheme in

performing its functions as

parole grantor.

10

"It is the opinion of this

Court that the Alabama Board of

Pardons and Paroles failed to

fulfil statutoril

: AG 4 2 Ul! t elt t :

issuance of the Ellard parole

and for that reason ana

pursuant to §15-22-40, the

arole issued to Ellard was

void ab initio..."

(R.Vol.I, D.5, R.ExX. ae

p.3,3 emphasis supplied;

Appendix "D", pages 103-104)

Ellard appealed to the Court of

Criminal Appeals of Alabama, which on

June 8, 1984, affirmed the Circuit

Court's judgment. (Ellard v. State, 474

So.2d 743 [Ala. Crim. App. 1984]). The

Court of Appeals agreed with the Circuit

Court that the Board had not complied

with the statutory mandates, with the

result that the parole was void. (447

So.2d 743, 751-752) However, the Court of

Appeals went further and found that the

parole was also defective in that:

"...It is apparent from the

face of the record that Ellard

ll

did not have suitable

employment in self-sustaining

employment, and was not free

from being a public charge,

which are mandatory

requirements before parole can

be granted. ..." (474 So.2d

743, 752)

Finally, the Court of Appeals ruled that

the parole issued to Ellard was nothing

more than a conditional interstate prison

transfer. The Court wrote:

",...There is no statutory

provision specifically

authorizing the Board to parole

a prisoner to a detainer. If

the Board desires to release a

prisoner to another state for

the purpose of serving a

Sentence in that state, it is

apparent that the proper method

is by conditional transfer

12

under § 15-22-24(i).[3] If the

Board in the instant case

sought to grant Ellard more

than a conditional transfer,

its action was in violation of

the statute and was void.

Regardless of how the Board

characterized its action, .

Ellard obtained nothing more

than a conditional interstate

transfer. ..." (474 So.2d 743,

753)

Respondent Ellard then sought and

was granted review in the Alabama Supreme

Court. The State Supreme Court did not

3 Section 15-22-24(i) reads:

"(i) The board shall have the power,

authority, and jurisdiction to

conditionally transfer a prisoner to the

authorities of the federal government or

any other jurisdiction entitled to his

custody to answer pending charges or

begin serving a sentence in response to a

properly filed detainer from the other

jurisdiction. Such conditionally

transferred prisoner shall remain in the

legal custody of the warden of the

institution from which he was

transferred. Should any such

conde sonad ly transferred prisoner

satisfy a etainers against him prior

to completion of his Alabama sentence,

said priosner shall not be released from

custody without further order of the

board of pardons and paroles." (See

Appendix C; emphasis supplied)

13

question anything in the lower courts'

opinions but decided a broader question:

Whether the Alabama Board of Pardons and

Paroles is authorized to revoke an

erroneously issued parole. (Ex parte

Ellard 474 So.2d 758 [Ala, 1985])

Obviously, a parole issued in violation

of the statutes and which is for that

reason void, would, at a minimum, be an

erroneously issued parole. The Alabama

Supreme Court decided the issue in the

affirmative, but held that the parolee

had the right to due process.‘ The State

41n applying its rule of law to this

case, the Supreme Court wrote:

",...Although Ellard did not

have a constitutionally

protected liberty interest,

nevertheless, we recognize that

Ellard was entitled to a due

(cont. next page)

14

Supreme Court affirmed the lower court's

rulings. :

Respondent Ellard then sought review

by a petition fora writ of habeas corpus

in the United States District Court for

the Middle District of Alabama, under 28

U.S.C, Section 2254. (R. Vol. I, D.1;

Appendix "A".) On May 29, 1986, the

*Continued from page 14:

Process hearing. ..." (474

So.2d 758, 760)

If the Court was applying Federal

Constitutional law here, it was wrong.

Connecticut Board v. Dumschat, 452 U.S.

458, 69 L.Ed.2d 158, 101 S.Ct. 2460

(1981); Jago v. Van Curen, 454 U.S. 14,

70 L.Ed.2d 13, 102 S.Ct. 31 (1981) If

the Court was applying Alabama law, then

its ruling is binding as a matter of

State law, but the State Supreme Court's

finding that Ellard was accorded due

process, immediately following the above

quoted language is equally binding.

15

District Court denied the writ-on the

grounds that Ellard had no liberty

interest in the parole and therefore no

due process rights. (R. Vol. I, D l, pp-

23 & 24, Appendix "A") The finding that

there was no liberty interest was based

on the following findings by the

Magistrate, which were adopted by the

District Judge.

",.. At the outset, the

Magistrate finds that the

evidence unquestionably

demonstrates that during the

period of time involved, Richard

Mark Ellard has never been free

of prison environments, either

in Alabama or in Georgia. When

Alabama granted its parole,

Ellard did not enter the free

world weighted only with parole

conditions. When he went to

Georgia, he went into the

Georgia prison system and again

was not priviledged with

£ ree-world freedom which is one

of the purposes of parole. ..."

(Vol. I, D. 20, p- 4 Appendix

ea*, p. 15)

And,

16

",.-Ellard's contention of

possible freedom in the future,

if Georgia paroles him, since

Alabama has already paroled him

is farfetched and meritless.

---"(Ibid, p.6); Appendix "A",

p. 19)

The District Judge wrote:

",..Where, as here, the Petitioner

has not received any liberties

because of the parole and the

possibility of future liberty is

purely speculative, this Court is

~not of the opinion that a liberty

interest is at stake. ..." (Vol. I,

D.23, p.2; Appendix "A", p. 6)

From the District Court's order

denying the writ, appeal was prosecuted

to the United States Court of Appeals for

the Eleventh Circuit. On August 19,

1987, a divided panel of the Court of

Appeals reversed the District Court's

Order. Ellard v. Board, 824 F.2d 937

(llth Cir. 1987); Appendix "B".

Where the District Court had found

that Respondent Ellard had no

constitutionally protected liberty

17

interest, since the parole never effected

his release to the free world, two judges

of the Court of Appeals found a liberty

interest on the basis that: (1) Liberty

interest is a matter of form, so that

anything called "parole" creates a

liberty interest. "...[words and form]

are the essence of a substantive liberty

interest created by state law. ..." (824

F.2d 937, 943; Appendix "B", page 38) (2)

Although Ellard was never released to the

free world, he was released from the

physical custody of Alabama's prisons

(note 4, 824 F.2d 937, 943; Appendix "B",

page 40) (3) The Alabama Supreme Court

had ruled that Ellard had the right to a

due process hearing, (See note 4, pages

14-15, above). (824 F.2d 937, 944) |

Ellard's claim that, if the parole

had remained in eekick, we would have

been released, if Georgia had ever

paroled him, had been rejected by the

| 18

State Courts on the grounds that Alabama

law did not authorize such an abdication

of responsiblity by the Alabama Parole

Board. See pages 12-13, above. The

District Court found as facts that this

claim was "...farfetched and meritless...

-" and "...purely speculative... ." See

page 17, above. Yet, the Court of

Appeals in a footnote adopted the legal

and factual basis of Ellara's claim.

(Note 6, 824 F.2d 937, 944, Appendix "B",

_ page 42)

Finally, the heart and soul of the

Court of Appeals opinion was a

determination that, once a state created

anything called "parole," the questions

of the nature of parole, the meaning of

parole statutes, the circumstances under

which a parole may be revoked and the

validity of state parole are all matters

of Federal Constitutional Law. On the

19

basis of such a determination, the Court

of Appeals proceeded to revise on a

wholesale basis the interpretation of the

Alabama statutes and on almost every

point reject the State Court inter-

pertation. For example: As noted

in the preceding paragraph, where the

State Courts ruled that the Parole Board

was not authorized to abrogate its

authority in paroling a prisoner into the

custody of another state, the Court of

Appeals, ignoring § 15-22-24(i); note 3,

page 13), above, found that this was the

necessary effect of an Alabama parole.

Many of the gross deficiencies in the

materials before the Board at the time of

the parole, which the State Courts found

to render the parole void ab initio as a

matter of state law (See page 11, above),

the Court of Appeals found to be mere

details, the lack of which did not

violate state law (824 F.2d 937, 948-949,

20

Appendix "B", pages 65-68) In remanding

the cause to the District Court, the

Court of Appeals did not limit the issues

to be decided to whether Ellard had been

accorded proceederal process incident to

the nullification of the parole and

whether there was substantial evidence in

support the State Court findings, but

Ordered the District Court to review the

reletive merits of the state

determination. (824 F.2d 937, 949,

Appendix "B", page 68)-

Judge Fay submitted a vigorous

dissent. (824 F.2d 937, 949; Appendix

"B", pages 68-70)

Your Petitioners applied for

rehearing, suggesting in banc consid-

eration, but the same was denied on

September 24, 1987. The mandate is now

Stayed November 24, 1987. (Appendix "B",

pages 80-82)

21

STATEMEK? OF THE FACT

I.

IN RE: LIBERTY INTEREST

It is undisputed that the parole

transferred Respondent Ellard from

Alabama's prisons to Georgia's prisons

but never effected his release to the

free world nor changed the rate at which

he served his concurrent life sentences.

This has been found as a fact by every

Court which has reviewed this case

including the U. S. Court of Appeals.

II.

IN RE: THE DEFICIENCY IN THE

MATERIALS BEFORE THE BOARD AT

THE TIME OF THE PAROLE

The following deficiencies in the

materials before the Board at the time of

the Parole were found by the State Courts

to be such a departure from state law as

to render the parole void. The U. S.

Court of Appeals held many of them to be

mere details which did not violate state

law.

A. Under the Board's duty to obtain

a "...complete statement of the crime.

-+-" and "...the circumstances or such

Crime. ..." (Section 15-22-25; Code of

Alabama, 1975, Appendix "C"):

At the time of the parole the Board

knew that Respondent Ellard had killed

Charlotte Parks and attempted to kill

Nancy Conn by beating them with a heavy

instrument. The Board's knowledge of

possible sexual impropriety by Ellard

consisted in the statement "...Ellard

admits having sexual intercourse with

this girl [i.e. Mrs. Parks]..." (Appendix

"E", page 107) and a passing reference in

a copy of a report to the Georgia Parole

Board, relating to Ellard's Georgia

murder, that Ellard had "...abducted two

23

victims in Alabama and had raped each

victim before murdering one and

attempting to murder the other. ..."

(See Ellard v. Board, 824 F.2d 937, 949

———- ——

[llth Cir., 1987]; Appendix "B", page 67)

However, the Board did not know:

1. That Ellard had abducted the

women at about 1:00-a.m. and from then

until well into the daylight hours, he

repeatedly raped Mrs. Parks, forcibly

sodomized both women, and forced them to

perform sex acts on each other.

(Appendix "E", pages 124-127)

2. That Ellard first tried to

murder the the women by asphyxiating them

with automobile exhaust fumes in the

trunk of his car. (Ibid, page 128)

3. That Ellard had permanetly

on Ff

maimed Mrs. Conn by severing her fingers

and blinding her in one eye. (Ibid, pages

128-129)

24

4. That in addition to beating her,

Ellard had stabbed Mrs. Parks some

fifty-eight times. (Ibid, page 130)

5. That Ellard had mutilated the

body of Mrs. Parks by pulling almost all

of her long blond hair out by the roots,

after beating and stabbing her. (Ibid)

B. Under the Board's duty to obtain

available reports of the prisoner's,

",..mental and psychiatric condition and

history..." (§ 15-22-25, Appendix "C"):

The Board did not have any such reports

before it at the time of the parole.

However, the State mental hospital had

examined Ellard prior to his sentence in

1971 and produced a report indicating a

strong and growing desire for violent

sexual activites. The report states:

"... He (Ellard) does say that

he feels he has to perform more

daring acts in order to get

this feeling (the feeling in

his stomack and chest) and that

25

he is afraid of what he might .

do if he had another chance’.

---" (Appendix E, page 132)

This report was avilable at the time of

the parole. (Ibid, page 131)

c. Under the Board's duty to

obtain a "...complete criminal record of

such prisoner. ..." (§ 18-22-25, Appendix

al hal

The Board knew that Ellard had

murdered and raped Mrs. Parks and

attempted to murder Mrs. Conn, that he

had abducted a female university student

in Birmingham, had taken her to Georgia

and murdered her in 1971, and that he had

escaped from prison in 1977. However,

the Board did not know:

l. That while awaiting trial in

1971, Ellard had offered a fellow

prisoner $500.00 to kill Mrs. Conn, the

surviving prosecuting witness. (Appendix

"E", page 142)

26

2. That while awaiting trial in

1971, Ellard had escaped from the county

jail. (Ibid, page 143)

3. While on escape in 1977, Ellard

procured a pistol, attempted to highjack

a truck, stole a car, and attempted to

cash a stolen government check.

(Ibid, pages 133-135)

SUMMARY OF THE ARGUMENT

1. A common practice among the

states is to use parole to transfer

prisoners, who are under sentence in

Other jurisdictions, to such other juris-

dictions. There are many advantages to

this arrangement for prisons, parole

boards and prisoners. However, if ‘such

prisoners obtain a liberty interest in

such paroles, the paroles could not be

reviewed without meeting due process

requirements, which would mean transfer-

27

ring prisoners from state to state.

Therefore, the question of liberty

interest in an interstate prison transfer

by parole is of great importance.

Although this Honorable -Court has never

had occasion to address this issue, this

Courts’ decisions clearly demonstrate

that liberty interest is a not matter of

form as held by the Court of Appeals, but

a matter of substance. Compare Morrissey

v. Brewer, (408 U.S. 471, 33 L.Ed.2da 484,

92 S.Ct. 2593 [1972]) with Jago v. Van

Curen, (454 U.S. 14, 70 L.Bd.2da 13, 102

S.Ct. 31 [1981]). The definition of

liberty interest as set out in Morrisey

v. Brewer (408 U.S. 471, 477 and 481-482,

33 L.Ed. 484, 492 and 494-495), includes

no factors relevent to interstate prison

transfers. This Honorable Court has

consistently refused to find anything of

constitutional significance in inter-

28

state prison transfers. E.g., Olim v.

Wakinekona, 461 U.S. 238, 75 L.Ed.2d 813,

103 S.Ct. 1741 (1983) There is simply no

liberty interest created by a parole

which does not effect a prisoner's

release to the free world. Jago v. Van

Curen, above.

Given the importance’ of this issue

and the inconsistency between the

decision of the Court of Appeals and

those of this Honorable Court, the writ

should issue.

2. The power of the states to

interpret their own laws has been a

keystone to federalism for two hundred

years. Concern for federalism, as well

as concern for avoiding divergent

interpretations of laws, has led to a

universal policy of respecting the

interpertation placed on a jurisdiction's

laws by the courts of that jurisdiction.

29

Parole is a creature of state law.

While recognizing this, the Court of

Appeals ruled that once a state created

any right called "parole," it had

exhausted its descretion in the matter.

The nature of parole, the validity of a

given parole and whether it vested in a

person are all matters of Federal

Constitutional law, according to the

Court of Appeals. In so ruling, the

Court of Appeals ruled contrary to the

controlling authorities of this Honorable

Court on the effect of state law on the

nature of parole. E.g., Greenholtz v.

Inmates, 442 U.S. 1, 60 L.Rd.2d 668, 99

St.Ct. 2100 (1979); Connecticut Vv.

Dumschat, 452 U.S. 458, 69 L.Ed.2d 158,

101 S.Ct. 2460 (1981) In rejecting the

State Court interpretations of Alabama's

parole statutes, the Court of Appeals

ruled contrary to a two-hundred year old

30

policy of this Honorable Court, holding

that State Court interpretations of state

statutes are binding on the Federal

Courts. E.G., Posadas de P.R. Asso. v.

Tourism Co. P.R. 478 U.S. , 92

L.Ed.2d 266, 279, 106 S.Ct. 2968,

2975-2976 (1986) The writ should issue

to review the Court's action.

ARGUMENT

I.

DOES A PAROLE WHICH MERELY

TRANSFERS A CONVICT-PRISONER

FROM ONE STATE'S PRISONS TO

ANOTHER STATE'S PRISONS CREATE

A CONSTITUTIONALLY PROTECTED

LIBERTY INTEREST?

A NOVEL QUESTION DECIDED

INCONSISTENTLY WITH PRIOR

_ DECISIONS OF THIS HONORABLE

COURT.

This is an extremely important

question for the federal and state parole

31

and prison authorities, for prisoners

under sentences in different jurisdictions

and for the public, which is extremely

concerned about crimes committed by

paroled prisoners. It is not at all

unusual for a convict to be under charges

Or sentences from several different

jurisdictions. There are various ways

that such convicts can be made available

to another jurisdiction for trial or

service of sentence,-but there are

several advantages, to both governments

Sone indication of public concern over

parole is the growing number of law suits

brought by victims of parolees against

parole authorities. See, for example,

Martinez v. California, 444 U.S. 277, 62

L.Ed.2d 481, 100 S.Ct. 553 (1980); Payton

v. United States, 679 F.2d 475 (5th Cir,

Unit "B", 1982); Sellers v. Thompson, 452

So.2d 460 (Ala, 1984); and Taitt v.

United States, 770 F.2d 890 (10th Cir,

1985).

32

and prisoners, in doing this by parole.

These advantes grow out of the fact that

a parolee, whether released to the free

world or transferred to another prison,

continues to serve his sentence. Thus,

where a state paroles a prisoner to

another state's detainer, the prisoner

continues to serve the first state's

sentence, while burdening neither the

prison facilities nor the esxole

apparatus of that state. From the

prisoner's point of view, such an

arrangement can be advantagous in various

ways.® If such interstate prisoner

STt is difficult to identify what

advantages accrued to Respondent Ellard

as a result of the parole. His Georgia

life sentence is concurrent with his

Alabama life sentence. His rate of

service before the parole, during the

parole and after its nullification was

the same. The parole only affected the

place of service, which remains the same

after the nullification of the parole.

33

transfers by parole create liberty

interests in the prisoners, then, if the

need arises to review a parole, the

parolee would have to be accorded

procedural due process. Morrissey v.

Brewer, 408 U.S. 471, 33 L.Ed.2d 484, 92

S.Ct. 2593 (1972). This would mean

transporting the prisoner from one state

to another, perhaps a considerable

distance. Laying aside the cost of such

transportation, there would be

considerable risk of escape by the

convict. These concerns would make the

the states hesitant to use parole for

interstate prison transfers.

While this question is novel, in

that this Honorable Court has never had

occasion to address the liberty interest

issue in the context of an interstate

prison transfer by parole, this Honorable

34

Court's decisions clearly show that such

paroles create no liberty interest. This

was the conclusion reached by the State

Courts and the District Court. Finding

no liberty interest, the District Court

declined to review the procedures by

which Respondent Ellard's parole was

nullified.

“The Court of Appeals held that

liberty interest is a matter of form.

The Court expressly so held at 829 F.2d

937, 942-943 (Appendix "B", pages 37-38),

and throughout the opinion the language

shows an understanding that "parole"

means “liberty interest." Yet, this

Honorable Court's cases on liberty

interest have involved a variety of

processes, including commutation,’ good

Tconnecticut v. Dumschat, 452 U.S. 458,

69 L.Ed.2d 158, 101 S.Ct. 2460 (1981).

35

time,® parole? and probation.19 In none

of these cases did this Court pay the

slightest attention to the name given to

the process. The liberty interest issue

rose or fell, not on words or form but on

substance, i.e., what was intended to be

accomplished and what was accomplished.

This point is best illustrated by

comparing Morrissey v. Brewer, (408 U.S.

8wolff v. McDonnell, 418 U.S. 539, 41

L.Ed.20 935, 94 S.Ct. 2963 (1974).

9Morrissey v. Brewer, 408 U.S. 471, 33

L.Ed.2d 484, 92 S.Ct. 2593 (1972);

Greenholtz v. Nebraska, 442 U.S. 1, 60

L.Ed.2d 668, 99 S.Ct. 2100 (1979); Jago

v. Van Curen, 454 U.S. 14, 70 L.Ed.2d 13,

102 S.Ct. 31 (1981); Board of Paroles v.

Allen, 482 U.S. , 96 L.Ed.2d 303, 107

S.Ct. 2415 (1987). |

l0Gagon v. Scarpelli, 411 U.S. 778, 36

L.Ed.2d 656, 93 S.Ct. 1756 (1973);

Douglas v. Buder, 412 U.S. 430, 37

L.Ed.2d 52, 93 S.Ct. 2199 (1973); Bearden

v. Georgia, 461 U.S. 660, 76 L.Ed.2d 221,

103 S.Ct. 2064 (1983).

471, 33 L.Ed.2d 484, 92 S.Ct. 2593

[1972]) with Jago v. Van Curen, (454 U.S.

14, 70 L.Ed.2d 13, 102 S.Ct. 31 [1981]).

Morrissey and Van Curen received

processes with the same name: “parole”.

The purpose of the paroles was the same:

To conditionally release the respective

parolees to the free world. If liberty

interest arises out of form, either both

Morrissey and Van Curen had liberty

interests or neither had a liberty

interest. Yet, this Court found a

liberty interest in Morrissey but none in

Van Curen. Why? Morrissey's parole was

put into effect, and he was actually

released to the free world, but Van

Curen's parole was rescinded before he

was actually released. In Jago v. Van

Curen, above, this Honorable Court held

that until and unless the parolee is

37

actually conditionally released to the

free world, there is no liberty interest.

Liberty interest is a matter of

substance, not form.

The Court of Appeals also found that

the instant parole created a liberty

interest, because the Alabama Supreme

Court held that Ellard had the right to

due process incident to the nullifcation.

See note 4, page 14-15, above. This

analysis is the exact reverse of the

analysis followed by this Honorable Court

in caSe after case. This Court has

always found due process rights flowing

from liberty interest, not vice versa.

The Court of Appeals refused to

follow this Honorable Court's teaching in

Jago v. Van Curen, above, because under

the parole, Ellard was released from the

physical custody of Alabama's prisons

in order to enter Georgia's prisons. See

note 4, 824 F.2d 937, 943; Appendix "B",

page 40. The question is then, whether a

liberty interest comes into being when a

paroled prisoner is released from prison

Or when such a prisoner enters the free

world. In a parole to the free world,

this issue would normally be moot, since

the two events occur simultaneously, but

this is not the case with a parole to a

detainer.

What is the nature of liberty

interest, in the case of parole? In

Morrissey v. Brewer, above, this

Honorable Court discussed this point at

some length. Morrissey involved a parole

to the free world. In discussing the

purpose of such a parole, this Court

wrote:

"...[Parole's] purpose is to

help individuals reintegrate

39

into society as constructive

individuals as soon as they are

able, without being confined

for the full term of the

sentence imposed...." (408

rp 471, 477, 33 L.Ed.2d 484,

492).

The obvious purpose of a parole toa

detainer is to transfer a prisoner to

another prison. On the nature of a

parole to the free world this Court

wrote,

"...-The essence of parole is

release from prison, before the

completion of sentence, on the

condition that the prisoner

abide by certain rules during

the balance of the

sentence...." (Ibid.)

Notice, it is the release from prison,

generally, not the release from a

particular prison. On the nature of the

constitutionally protected interest

Created by a parole to the free world

(i.e., liberty interest), this Court

wrote: |

",..We turn to an examination

of the nature of the interest

of the parolee in his continued

40

liberty. 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 pean able to return

to society an unction as a

responsible, self-reliant

person. Subject to the

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... 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...." (408 U.S. 471,

481-482, 33 L.Ed.2d 484,

494-495); emphasis supplied)

41

Obviously, not one consideration

mentioned by this Honorable Court has the

Slightest relevance to a prisoner who is

paroled from one state's prisons to

another state's prisons. If liberty

interest is a matter of substance, then

its substance is release into society,

not release from one prison to another.

The substance of a parole from one

state's prisons to another is an

interstate prison transfer. This

Honorable Court has consistently rejected

suggestions of constitutional rights in

prisoners arising out of inter-state

prison transfers. E.g., Olim v.

Wakinekona, 461 U.S. 238, 75 L.Ed.2d 813,

103 S.Ct. 1741 (1983); Ponzi v.

Fesseadea, 258 U.S. 254, 66 L.Ed. 607, 42

S.Ct. 309, 22 A.L.R. 879 (1922). If

liberty interest is a matter of

substance, then no such interest arises

42

from a parole which simply transfers a

prisoner from one state's prisons to

those of another state.

The case which comes closest on the

level of substance to the instant case is

the one which the State Courts and the

District Court followed but which the

Court of Appeals refused to follow: Jago

v. Van Curen, above. The parole in Jago

was to the free world, like that in

Morrissey, rather than to another state's

prisons, but this Honorable Court

rejected the parolee's claim to a hearing

incident to a nullifcation of his parole.

The reason for the rejection was that the

parolee was never actually released to

the free world. Like the parolee in

Jago, Respondent Ellard never reached the

free world under the instant parole and

43

therefore, he never obtained a liberty

interest.

Given the wide spread use of parole

for interstate prison transfers, the

question of whether such paroles create

liberty interest will have to be

addressed at some point. The Eleventh

Circuit has addressed it in this case and

decided it in a manner which is in

irreconcilable conflict with this

Honorable Court's decisions and opinions

on both liberty interest and interstate

prison transfers. The issue is clearly

presented in this case on the basis of

undisputed facts. It is respectfully

submitted that in the interests of

constitutional uniformity and certainty,

the writ should issue in this case to

review this novel question.

44

THE VALIDITY gs STATE PAROLE

IS A STATE LAW QUESTION.

THE DECISION AND OPINION OF THE

ELEVENTH CIRCUIT CONFLICTS WITH

THE CONTROLING DECISIONS OF

THIS HONORABLE COURT.

The basic issue here is: To what

extent do state parole statutes, as

authoritatively construed by state

courts, control the nature of parole

rights and the validity of the granting

of such rights? The importance of this

issue is obvious. Federalism has been

the keystone to American Constitutional

Law for two hundred years. If the States

have no say over the meaning of their

laws, there is little or nothing of

federalism left. Beyond the concerns for

constitutional form, there is the obvious

problem of divergent interpretations of

state statutes. The Eleventh Circuit

ruled that "...the construction of a

45

state's laws by its own Courts may be of

benefit...." (824 F.2d 937, 944;

Appendix “B", page 43), but state

agencies and officials need more than

help in understanding the laws under

which they operate and which they

enforce--they need to know precisely what

are their authority, duties, and

responsibilities. This need is just as

great in the case of citizens. Unless

state court interpretations of state laws

are authoritative, they are little more

than traps for those who rely on them.

In recognition of these concerns this

Honorable Court, the highest judicial

authority in the nation, has consistently

held itself bound by state court

interpretations of state law; the federal

circuits and other courts have, in

applying the laws of other jurisdictions,

looked to the judicial determinations of

those jurisdictions for the proper

46

interpretation,and Congress has limited

federal habeas corpus actions by state

prisoners, such as the instant

proceeding, to applications: "...on the

ground that he is in custody in violation

of the Constitution or laws or treaties

of the United States...." 28 U.S.C.

Section 2254(a).11

llfhis statute has been universally held

to bar federal review of state court

interpretations and applications of state

law. E.g., Engle v. Isaac, 456 U.S. 107,

119, 71 L.Ed.2d 783, 795, 102 S.Ct. 1558

(1982); Mendiola v. Estelle, 635 F.2d

487, 489 (5th Cir, 1981); Grace v.

Butterworth, 635 F.2d l, 4 (lst Cir,

1980); Coombs v. Tennessee, 530 F.2d 695,

698 (6th Cir. 1976); cert. den., 425 U.S.

954, 48 L.Ed.2d 198, 96 S.Ct. 1731. Bond

v. Oklahoma, 546 F.2d 1369, 1377 (10th

Cir, 1976). However, in the Eleventh

Circuit's view, the meaning and

application of state parole statutes is a

federal question. See also Coleman v.

Alabama, 827 F.2d. 1469 (llth Cir, 1987),

holding that federal habeas corpus lies

to vindicate a convict's alleged rights

under a state youthful offender statute.

47

The law is clear and it was

recognized by the Court of Appeals

(Ellard v. Board, 824 F.2d 937, 941 [llth

Cir, 1987] Appendix "B", page 31), that

the Constitution does not create a right

to parole. Connecticut v. Dumschat, 452

U.S. 458, 463-464, 69 L.Ed.2d 158, 164,

101 S.Ct. 2460 (1980); Greenholtz v.

Inmates, 442 U.S. 1, 7, 60 L.Ed.2d 668,

675, 99 S.Ct. 2100 (1979). Parole is a

Creature of state law. Once a liberty

interest has been created by state law

and become vested in a person, the

prohibitions of the Fourteenth Amendment

come into play. Once a state creates a

liberty incerest, it may not practice

invidious discrimination in granting or

withholding the right. Once such a right

vests in a person, he may not be deprived

of the right without due process of law.

This much is hornbook law.

48

However, which law, state or

federal, controls the issues of whether

the state law has created a right, the

nature of the right created, the

authority to grant the right to a person

and whether or not the right has vested

in a person? In most of the parole and

liberty interest cases which have come

before this Honorable Court, these issues

were undisputed, but in the instant case

these very issues have been the "bone of

contention" through more than four years

of litigation.

Eleventh Circuit ruled that once a

State creates a right called "parole,"

the state's discretion in the matter is

exhausted. The nature of the parole, the

authority to issue a parole and the

validity of a parole, all became matters

of Federal Constitutional law. For

example, the Alabama Legislature

49

created a special sort of parole, which

allows Alabama prisoners, who are under

sentence in other Jurisdictions, to be

paroled to such other jurisdictions, on

condition that they be returned to

Alabama, if they are released before the

expiration of their Alabama sentences.

Section 15-22-24(i); Appendix "Cc".

However, the Eleventh Circuit rejected

this (note 2, 824 F.2d 937, 945, Appendix

"B", page 36) and ruled that, as a matter

of federal law, the issuance of any

parole amounts to a ‘...decision that the

State's penological interests do not

require [continued] imprisonment." See

Bearden v. Georgia,(12] 461 u.s. 669-70,

l2pearden v. Georgia, (461 U.S. 660, 76

L.Ed.2d 221, 103 S.Ct. 2064 [1983]),

involved probation (an alternative to

imprisonment) not parole (a way of

serving a prison sentence). Its

relevance on this point to a parole to

another state's prison is hard to see.

50

103 S.Ct. at 2071...." (824 F.2d 937,

946 Appendix "B", page 53). Although the

Eleventh Circuit agreed with the state

courts that a void Alabama parole could

be nullified,13 the Court of Appeals

found that, if the parole was valid, it

could not be set aside for any reason,

except a violation of a condition.14

(824 F.2d 937, 945; Ibid, page 50). The

Alabama statutes (Appendix "C") on their

face place severe restraints on the

granting of parole, and the state courts

l3this was one of the few points on which

the Eleventh Circuit agreed with the

State Courts.

l4strangely, immediately after the

language guoted by the Eleventh Circuit

from Bearden, as set out in the previous

sentence we find: "...A probationer's

failure to make reasonable efforts to

repay his debt to society may indicate

that this original determination [that

the State's penological interest do not

<< imprisonment] needs reevaluation,

and imprisonment may now be required to

satisfy the State's interests...." {461

U.S. 660, 670, 76 L.Ed.2d 221, 231).

51

— | — -

held that these provisions compelled the

Board to review paroles, when it appeared

that the parole statutes had been

violated.15 The Eleventh Circuit decided

that what the state statutes really do is

place severe restrains on nullifying void

paroles. (824 F.2d 937, 942-943,

Appendix "B", pages 41-42, citing the

dissenting opinion in the Alabama Supreme

Court as authority.) Finally, many of

the gross deficiencies in information

outlined in the Statement of the Facts,

above, which the State Courts found

violated the state statutory mandates,

the Eleventh Circuit dismissed’ as mere

15"_...In fact, under such circumstances

it would be the duty of the Board to do

so. Mandamus would lie to compel it to

act... A failure to act could subject the

Board members to criminal sanctions...."

(Ellard v. State, (474 So.2d 743, 752)

details. (824 F.2d 937, 948). Thus, the

Eleventh Circuit Court of Appeals swept

away one of the last vestiges of

federalism--a state's sovereignty over

the meaning of its own laws. In so

ruling, the Court of Appeals, ruled

contrary to inumerable prior decisions of

this Honorable Court.

This Honorable Court has always

looked to state law for authority on the

nature of parole rights. Greenholtz v.

Inmates, above; Connecticut v. Dumschat,

above; Board v. Allen, 482 U.S. , 96

L.Ed.2d 303, 107 S.Ct. 2415 (1987).

These cases arose out of civil rights

actions under 42 U.S.C. Section 1983, and

there were no state cases construing the

53

State statutes.16 However, in each of

these cases this Court looked to the

State statute, not the Federal

Constitution, for the nature of the

interest created.

In following state law on the nature

of parole rights, this Honorable Court

simply followed a broader policy, which

it has consistently followed for two

hundred years: That state court

interpretations of state laws are binding

on the federal courts. Rather than

burden the record with a multitude of

authorities on this well recognized

point, we call the Court's attention to

the following samples from the last

16"...since respondents elected to

litigate their due process claim in

federal court, we are denied the benefit

of the Nebraska courts' interpretation

ooee" (Greenholtz 442 U.S. 1, 12, 60

e Ed.2d 668, 678).

54

twenty years: Posadas de P.R. Asso. V.

Tourism Co. of P.R., 478 U.S. e 932

L.Ed.2d 266, 279, 106 S.Ct. 2968,

2975-2976 (1986); New York v. Ferber,

note 24, 458 U.S. 747, 769, 73 L.Ed.2d

1113, 1131-1132, 102 S.Ct. 3348 (1982);

Illinois v. Vitale, 447 U.S. 410, 416 and

422, 65 L.Ed.2d 228, 236 and 239, 100

S.Ct. 2260 (1980); Adderly v. Florida,

385 U.S. 39, 46, 17 L.Ed.2d 149, 155, 87

S.Ct. 242 (1966). If this Honorable

Court has no authority to revise state

court interpretations of state law, as

this Court has always held, how could the

United States Court of Appeals have such

authority?

Parole as noted above, is a matter

of state law; but for state law, there

would be no parole at all. The Court of

Appeals' ruling that once a state has

decided to create a right called

55

"parole", it has exhausted its discretion

in the matter, is a radical and novel

departure from prior authorities. In

revising the state court interpretations

of Alabama's parole statutes, the

Eleventh Circuit ruled contrary to two

hundred years of precedent and appointed

itself the supreme parole authority for

the states of the Circuit. As a result

of the Eleventh Circuit's action, the

citizens and state agencies and officials

of the Southeastern United States have no

idea what reliance, if any, to place on

State court interpretations of state

laws. If the Court of Appeals erred in

this action, as we submit that it did,

the writ should issue to correct the

Court of Appeals‘ actions. If, on the

Other hand, the Court of Appeals decision

is correct, then the writ should issue to

clarify the matter and establish a new

56

national policy. If the Bicentennial of

the United States Constitution is to be

marked by abolishing the last remnants of

federalism, it ought to be done on a

nationwide scale and not limited to a few

poor southern states in the Eleventh

Circuit.

CONCLUSION

In conclusion, the Petitioners

respectfully submit that the decision and

opinion of the United States Court of

Appeals for the Eleventh Circuit, in

finding a liberty interest in the

Respondent, decided a novel question in a

manner inconsistent with the controlling

decisions of this Honorable Court and, in

revising the state court interpretation

of Alabama's parole statutes, ruled in

direct conflict with two hundred years of

precedent of this Honorable Court.

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Therefore, the Petitioners pray that the

writ issue to review the decision and

opinion of the Honorable Court of

Appeals.

Respectfully submitted,

DON SIEGELMAN

ATTORNEY GENERAL |

BY-

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR PETITIONERS

ADDRESS OF COUNSEL: |

OFFICE OF THE ATTORNEY GENERAL

ALABAMA STATE HOUSE

1l SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

58

CERTIFICATE OF SERVICE

I, Joseph F. L. Marston, III, an

Assistant Attorney General of Alabama, do

hereby certify that I ama member of the

Bar of the Supreme Court of the United

States and, as one of the Attorneys for

the Petitioners, I hereby certify on this

day of November, 1987, I did

serve the requisite number of copies of

the foregoing on the Attorney for Richard

Mark Ellard, Respondent, by mailing the

same to said Attorney, first-class

postage prepaid and addressed as follows:

Honorable Ralph I. Knowles, Jr.

Attorney at Law

P.O. Box 86

Tuscaloosa, Alabama 35402

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7300

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