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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 981

## Text

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.

57

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

59

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0443%3A1. Public record. Not legal advice.