Appendix — Alabama Board of Pardons & Paroles v. Ellard

oe Super Oourt, U.S.

€7-849 =f FREED

NOV 23 1987

f JOSEPH F. SPANIOL, JR.

NO. : CLERK

4

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,

APPENDICES TO THE

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

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7300 Ss

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,

APPENDICES TO THE

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

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7300

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

APPENDIX E:

TABLE OF APPENDICES

ORDERS AND OPINIONS

OF THE UNITED STATES

DISTRICT COURT FOR

THE MIDDLE DISTRICT

OF ALABAMA-------------

OPINION AND ORDERS

OF THE UNITED STATES

COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT---

OPI NION--------------

ORDER ON APPLICATION

FOR REHEARI NG--------

STAY OF MANDATE------

RELEVANT ALABAMA

STATUTES---------------

DECISION AND OPINION

OF THE STATE TRIAL

MATERIALS FROM THE

ALABAMA BOARD OF

PARDONS AND PAROLES----

I. AT TIME OF SENTENCE

REPORT, PART I,

( PRE-PAROLE ) -------

II. AT TIME OF SENTENCE

REPORT, PART II,

( PRE-PAROLE ) -------

90

98

98

TABLE OF APPENDICES (CONT. )

III. PAROLE EVALUATION

( PRE-PAROLE )----~-~

IV. REPORT OF

INVESTIGATION

( POST-PAROLE ) ---~--

Vv. PRELIMINARY

PAROLE REVOCATION

HEARING (POST-

PAROLE )---------~-~

CERTIFICATE OF SERVICE----- 7777777

PAGE

111

115

129

138

ii

APPENDIX A

ORDERS AND OPINIONS OF

THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE

_ DISTRICT OF ALABAMA

Filed May 29, 1986

7 Clerk

U.S. DISTRICT COURT

MIDDLE DISTRICT OF ALA.

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

| NORTHERN DIVISION

RICHARD MARK ELLARD,

)

)

Petitioner, )

)CIVIL ACTION NO.

= )

ALABAMA BOARD OF PARDONS)

AND PAROLES; ET AL, )

)

Respondents. )

ORDER

In accordance with the Opinion

entered in the above-styled cause on this

date, it is

. ORDERED by this Court that the

Petition for Writ of Habeas Corpus filed

herein by Petitioner Ellard be, and the

same is hereby, dismissed with prejudice

with costs taxed against the Petitioner,

for which execution may issue.

DONE this 29th day of May, 1986.

/S/R. E. VARNER

UNITED STATES DISTRICT JUDGE

FILED

May 29, 1986

Clerk

U.S. DISTRICT COURT

MIDDLE DIST. OF ALA.

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICHARD MARK ELLARD,

Petitioner,

Vs. CIVIL ACTION NO.

)

)

)

)

)

)85V-1264-N

ALABAMA BOARD OF )

PARDONS AND PAROLES; )

ET AL, )

)

)

Respondents.

OPINION

This cause is submitted on (1) the

Petition for Writ of Habeas Corpus

seeking relief for the Petitioner,

Richard Mark Ellard, from a detainer

filed by the Alabama Department of

Corrections with the Georgia Board of

Corrections where he is conf ined?’ * (2)

the Recommendation and Corrected

Recommendation of the Magistrate thereon;

(3) the Petitioner's objections to the

Magistrate's recommendations; and (4) the

Respondents’ response to Petitioner's

objections. Based thereon, this Court is

of the opinion that the petition should

be denied.

The Court of Criminal Appeals of

Alabama in Ellard v. State, 474 So.2d 743

(Ala.Ct.of Cr.App. 1984), and the Supreme

Court of Alabama in Ex parte Ellard, 474

So.2d (S.Ct. Al. 1985), considered the

facts and law pertinent to the Ellard

case and, for various reasons, concluded

that Ellard'’s parole should have been set

aside by the Parole Board. Considerable

disagreement was voiced as to whether the

1/ The Magistrate's recommendation

mentions several problems which

Petitioner faces in this proceeding.

Ct

parole itself was void ab initio (because

of violation by the Parole Board of its

duties) or whether, while the parole

itself was valid initially, it could be

revoked because of error therein by the

Parole Board. Dissenting Justices took

the position that, under the law of

Alabama, the parole could legally not

have been revoked and that its revocation

was, therefore, without authority. In

short, the disagreements between the

dissenting and the majority opinions of

the Supreme Court of Alabama primarily

concerned the construction of the State

law of Alabama, a matter over which this

Court has no authority except for

constitutional reasons. The dissenters,

however, relying upon Morrissey Vv.

Brewer, 408 U.S. 471 (1972) and Bearden

v. Georgia, 461 U.S. 660, took the

position that revocation of a parole for

reasons other than a violation of parole

5

would be an act so arbitrary and

Capricious as to violate the due process

Clause of the United States Constitution.

Those cases, however, involved

terminations of freedoms being enjoyed by

the subjects. 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. These

Matters have been fully discussed by the

Magistrate and this Court adopts the view

of the Magistrate thereon. The majority

of the Supreme Court of Alabama and the

full panel of the Court of Criminal

- Appeals of the State of Alabama have, at

least implicitly, adopted that view.

Accordingly, this Court is of the

opinion that the Petition of Writ of

Habeas Corpus filed by Petitioner Ellard

should be denied.

An Order will be entered in

accordance with this Opinion.

DONE this 29th day of May, 1986.

/S/R. E. VARNER

-UNITED STATES DISTRICT JUDGE

FILED

May 6, 1986

Clerk

“ U.S. DISTRICT COURT

MIDDLE DIST. OF ALA.

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

—.--——_NORTHERN DIVISION

RICHARD MARK ELLARD,

Petitioner,

)

)

)

)

vs. )CIVIL ACTION NO.

)85V-1264-N

ALABAMA BOARD OF )

PARDONS AND PAROLES; )

ET AL,

)

)

Respondents. )

CORRECTED RECOMMENDATION OF THE

MAGISTRATE

The Recommendation of the Magistrate

filed May 2, 1986, is hereby corrected in

the following respects:

At the end of the first paragraph,

"resume" appears; the Magistrate strikes

the word "resume" and adds the word

"name."

In that section of the

Recommendation entitled "Due Process

Claim" where the words "subject to all of

the necessary restraints that inhere ina

prisoner," the Magistrate strikes the

work "prisoner" and substitutes the word

"prison." In all other respects, the

Recommendation is affirmed.

Done this 6th day of May, 1986.~

/S/M. LEWIS GWALTNEY

UNITED STATES MAGISTRATE

FILED

May 2, 1986

Clerk

U.S. DISTRICT COURT

MIDDLE DIST. OF ALA.

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICHARD MARK ELLARD,)

)

Petitioner, - )

)

vs. )CIVIL ACTION NO.

)85V-1264-N

ALABAMA BOARD OF )

PARDONS AND PAROLES; )

ET AL, )

)

Respondents. )

RECOMMENDATION OF THE MAGISTRATE

This court is presented in a

petition for the writ of habeas corpus

filed by Richard Mark Ellard, a prisoner.

He sueS as respondents the Alabama Board

of Pardons and Paroles (hereafter, the

Board), its individual members, and the

10

State of Alabama. It is established law

that in a petition for the writ of habeas

corpus brought pursuant to 28 U.S.C. 2254

by a state prisoner, the proper and only

respondent is his immediate custodian.

West v. Louisiana, 478 F.2d 1026 (5th

Cir. 1973); Wales v. Whitney, 114 U.S.

564 (1885); and Mackey v. Gonzalez, 662

F.2d 712 (5th Cir. 1981). But, insomuch

as the Magistrate concludes that there is

no merit to this petition, there is no

need to require an amendment to the

petition. The Attorney General for the

State of Alabama has made an appearance

in this case and has ably represented the

state's position and any state official

Ellard might resume.

In 1972, Ellard entered a plea of

guilty in the Circuit Court of Blount

County, Alabama, to a charge of murder in

the first degree and assault to murder,

ll

for which he received a life sentence and

twenty-years imprisonment, respectively,

to the charges. The vile, contemptible

sexual conduct Ellard forced upon his

victims before he killed one and

attempted to kill another is well

documented in the file here, but no

useful purpose would be served by

reciting them in this recommendation.

It further appears from the file

that subsequent to the disposition of

charges against him in Alabama, Ellard

was carried to the State of Georgia where

he entered a plea of guilty to a charge

of murder. His victim there appears to

have been a female carried from Alabama

to Georgia by Ellard and the

circumstances involving that victim

appear to have been similar to the

Alabama victims. The State of Georgia

imposed a life sentence to run concurrert

12

with the Alabama life sentence.

A recitation of dates as found from

this file are important only insofar as

to establish a framework within which the

Board dealt with Ellard. The Board's

actions triggered this lawsuit. Taken

from the file, it appears:

On March 2, 1981, the Board granted

Ellard a parole and turned him over to

the State of Georgia who had placed

detainer with the Alabama authorities.

In granting Ellard a parole, the

Board issued to him its certificate of

parole.

Subsequent to the granting of the

parole, public opinion appears to have

been brought against the Board for their

actions to the extent that on April 16,

1981, the Board requested the Attorney

General for Alabama to render an official

opinion as to whether or not the Board

13

had the authority to rescind, revoke,

nullify, and void a grant of parole which

had been legally issued and executed in

Ellard's action.

On April 17, 1981, the Attorney

General issued an opinion advising the

Board that it had the authority.

On April 17, 1981, the Board

declared Ellard delinquent as a technical

violator under a provision of his parole

conditions.

After Ellard had been placed in the

jurisdiction of the State of Georgia, the

Governor of Alabama entered into an

agreement with the Governor of Georgia

whereby Ellard was returned to Alabama to

face revocation of parole by the Alabama

Board. On July 15, 1982, the Board

ordered the revocation of the certificate

of parole after conducting a hearing.

Ellard was then returned to the Georgia

14

officials requesting that Ellard be

returned to the Alabama prison system if

he should be released in Georgia.

Ellard commenced state court action

against the Board. He stated in the

Circuit Court of Montgomery County,

Alabama, which court held that pursuant

to Alabama law the parole which had been

Granted Ellard was void ab initio. Ina

long, exhaustive opinion, the Alabama

Court of Criminal Appeals held that the

Board had acted not in accordance with

the authority granted to the Board by

Alabama law. That court affirmed the

judgment of the Circuit Court. Appeal

was taken to the Alabama Supreme Court

Where in a five to four decision the

Alabama Supreme Court held that the Board

had the authority to revoke Ellard's

parole because the Board had made an

error in considering Ellard's eligibility

15

for parole. Accordingly, Ellard has

exhausted his state remedies.

In his petition for habeas corpus

presented to this court, Ellard raises

two federal questions. First, he claims

that the Alabama procedure afforded him

denied him due process and, secondly,

that the procedures had denied him equal

protection of the law.

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,

Wither 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

free-world freedom which is one of the

purposes of parole.

16

A reading of Ellard's petition for

the writ of habeas corpus presented to

this court, Ellard's theme appears to be

that since Alabama has paroled him and if

Georgia paroles him, which may be a

possibility, he would then enter the free

world weighted with only conditions of

parole imposed by two sovereigns, Alabama

and Georgia, because Alabama had already

granted him a parole. By revoking his

parole, Alabama has now denied him that

expectation.

The parties have freighted this

file extensively with pleadings, briefs,

and documents. The petitioner appears to

argue that Alabama had no right to revoke

his parole because among other things he

had never violated any of the conditions

of parole imposed upon him by Alabama

and, further, that the proceedings of the

Alabama Parole Board were unconstitu-

tional because Alabama law does not

provide the Board with subpoena powers so

that witnesses could be subpoenaed to

appear before the Board.

The State of Alabama comes closer to

arguing what the Magistrate considers to

be the simple issue in this case and that

is whether or not under federal law,

Richard Mark Ellard was entitled to the

protection of due process when the Board

cevoked a parole whcih, in the opinion of

the Magistrate, had ill-advisedly been

Granted to Ellard. It is the opinion of

the Magistrate and his conclusion that

the circumstances of this case show

Ellard was not entitled to any federal

due process protection.

18

ue Process Claim

Petitioner relies on Morrissey v.

Brewer, 408 U.S. 471 (1972), as the basis

for his due process claim. Such rettance

is misplaced. Morrissey is sharply

distinguishably from the instant case.

The factual settings are entirely

different.

Morrissey clearly holds that a

measure Of due process must be afforded a

parolee who is charged with parole

violation because the parolee was

engaging in conditional liberty. He

could be gainfully employed, free to be

with family and Cetéais, tnd to form the

enduring attachments of normal living.

Ellard, on the other hand, has always

been confined either in Alabama or

Georgia prison systems and is, thus,

subject to all of the necessary

restraints that inhere in a prisoner.

See Greenholz, itc. v. Inmates, etc., 442

U.S. 1 (1979); Gaqnon v. Scarpelli, 411

U.S. 78 (1973) (probation revocation).

Ellard's contention of possible

freedom in the future, if Georgia paroles

him, since Alabama has already paroled

him, is farfetched and meritless.

In Thomas v. Sellers, 691 F.2d 487

(llth Cir. 1982), the appellate court

examined Alabama's parole system and

ruled that it does not contain any

language that mandates parole as was

found in Greenholz. Further, that when

the statute is framed in discretionary

terms, there is not a liberty interest

Created.

The Magistrate finds that there is

no merit to Ellard's due process claim.

20

Equal Protection of Laws

Although Ellard claims that he was

denied equal protection of the laws, the

Magistrate finds there is no merit to

this claim. Concluding as I have that he

was not entitled to any due process in

the revocation of his parole, I find that

the Board has not violated any equal

protection right. Thomas v. Sellers,

Supra, provides that Alabama's parole

Statute is framed in discretionary terms

and there is no liberty interest created.

Absent any flagrant or unauthorized

action by the parole board, the

discretionary power vested in the board

will not he interferred with by the

federal courts. I find no flagrant or

unauthorized action by the Alabama

Pardons and Paroles Board in this case.

Accordingly it is,

_

RECOMMENDED that the petition for

the writ of habeas corpus be denied and

that this case be dismissed.

Done this 2nd day of May, 1986.

/S/M. LEWIS GWALTNEY

UNITED STATES MAGISTRATE

CIVIL ACTION NO. 85-H-1264-N

ORDER

The Clerk of the Court is ORDERED to

file the Recommendation of the Magistrate

and to serve by mail a copy thereof on

the parties to this action. The parties

are DIRECTED to file any objections to

the said Recommendation within a period

of thirteen (13) days from the date of

mailing to them. Any objections filed

must specifically identify the findings

in the Magistrate's Recommendation

objected to. Frivolous, conclusive, or

22

general objections will not be considered

by the District Court.

Failure to file written objections

to the proposed findings and

recommendations in the Magistrate's

report shall bar the party from a de novo

determination by the District Court of

issues covered in the report accepted or

adopted by the District Court except upon

grounds of plain error or manifest

injustice. Nettles v. Wainwright, 677

F.2d 404 (Fifth Cir. 1982). See Bonner

v. City of Prichard, 661 F.2d 1206 (llth

Cir. 1981, en banc), adopting as binding

precedent all of the decisions of the

former Fifth Circuit handed down prior to

the close of business on September 30,

1981.

Having reviewed the tapes and

Original records, I conclude that they

are adequate for purposes of review.

Parties planning to object to this report

and recommendation but unable to pay the

fee for a transcript of the record are

advised that a judicial determination

that transcription is necessary is a

prerequisite to payment of the fees by

the United States.

Done this 2nd day of May, 1986.

/S/M. LEWIS GWALTNEY

UNITED STATES MAGISTRATE

24

APPENDIX B

OPINION OF THE COURT OF APPEALS

824 F.2D 937-948

RICHARD MARK ELLARD,

Petitioner, Appellant,

Vv.

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 State of Alabama,

Respondents - Appellees.

No. 86-7438.

United States Court of Appeals,

Eleventh Circuit.

August 19, 1987.

Appeal from the United States District

Court for the Middle District of Alabama.

Before FAY and KRAVITCH, Circuit

judges, and MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge: —~

At issue in this appeal is whether a

prisoner who has been paroled by one

State directly into the custody of

256

another state has a constitutionally

protected liberty interest in the first

state's grant of parole. The district

court concluded that, because such a

prisoner has not been released into

society, the grant of parole does not

Create a liberty interest protected by

the Due Process Clause of the fourteenth

amendment. We reverse and remand to the

district court for an evidentiary

hearing.

1. BACKGROUND

In 1972, appellant, Richard Mark

Ellard, pleaded guilty in Alabama to one

count of first degree murder and one

count of assault with intent to murder.

He was sentenced to life in prison on the

murder charge and to a concurrent 22-year

1. The details of Ellard's crimes are

set forth in Ellard v. State, 474 So.2d

743, 746 (Ala. Crim. App. 1984), aff'd

on other grounds sub. nom. Ex Parte Ellard,

474 So.2d 758 (Ala. 1985).

26

sentence on the assault charge. In 1976,

Ellard pleaded guilty in Georgia to

another murder charge.! He was given a

life sentence to run concurrently with

the Alabama sentences. After the Georgia

sentence was imposed, Ellard remained in

custody in the Alabama prison system.

In 1981, the Alabama Board of

Pardons and Parole granted Ellard parole

and released him into the custody of the

State of Georgia to serve his life

sentence there. Following a burst of

public outrage at the parole decision,

the Parole Board requested Alabama

Attorney General Charles Graddick to

provide an opinion on whether the Board

validly could revoke a parole that was

"legally issued" but that operated only

to release the parolee directly into the

custody of another state to serve a

pending sentence there. Graddick

97

informed the Board that in his opinion

the decision to grant Ellard parole was

based upon incomplete information and

thus was in violation of Alabama law.

He concluded that the Board therefore was

authorized to reconsider its decision to

Grant Ellard parole. The Board, relying

on this opinion, declared Ellard in

technical violation of his parole and had

him returned from Georgia. After

conducting an evidentiary hearing, the

Board revoked Ellard's parole. Ellard

subsequently was transferred back to

Georgia to serve out his sentences

there.

Ellard commenced state proceedings

in Alabama to have the parole revocation

reversed. The Alabama Court of Criminal

Appeals found that the initial parole

decision was based upon incomplete

information, was not in accordance with

28

the Parole Board's authority under

Alabama law, and thus was void. Ellard

v. State, 474 So.2d 743 (Ala. Crim. App.

1984). In affirming, the Alabama: Supreme

Court relied on a completely different

rationale. That court concluded in a 5-

to-4 decision, that the Parole Board has

the inherent authority to reconsider and

rescind a grant of parole so long as "the

prisoner is accorded his due process

rights." Ex parte Ellard, 474 So.2d 758,

763 (Ala. 1985).

Ellard subsequently filed a petition

for habeas corpus in federal court. The

district court, adopting the recommenda-

tions of the magistrate, concluded that

because Ellard never had been teleased

f rom hic leon confines, he did not have a

liberty interest and thus "was not

entitled to any federal due process

protection." The court rejected as

29

"farfetched and meritless" Ellard's

contention that the grant of parole by

Alabama created a liberty interest by

increasing his chances of eventual

freedom should Georgia eventually grant

him parole. The court also summarily

rejected Ellard's claim that the Board

denied him equal protection by treating

him differently than all other parolees.

II. A LIBERTY INTEREST?

The Due Process Clause of the

fourteenth amendment to the United States

Constitution provides that no state

"shall deprive any person of life,

liberty, Or property without due process

of law." Although "[l]awful imprisonment

necessarily makes unavailable many rights

and privileges of the ordinary citizen,”

prisoners nevertheless “may claim the

protections of the Due Process Clause."

Wolff v. McDonnell, 418 U.S. 539, 555-56,

30

94 S.Ct. 2963, 2974, 41 L.Ed.2d 935

(1974). Yet, “the fact that prisoners

retain rights under the Due Process

Clause in no way implies that these

rights are not subject to restrictions

imposed by the nature of the regime to

which they have been lawfully committed."

Id. at 556m 94 S.Ct. at 2975.

Consequently, prisoners “retain only a

narrow range of ... liberty interests"

protected by the Due Process Clause.

Hewitt v. Helms, 459 U.S. 460, 467, 103

S.Ct. 864, 869, 74 L.Ed.2d 675 (1983).

Those liberty interests of prisoners

that are protected by the fourteenth

amendment “arise from two sources-the Due

Process Clause itself and the laws of the

State." Hewitt v. Helms, 459 U.S. 460,

466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675

(1983). For a protected interest to

arise from the Due Process Clause itself,

there must be in "the nature of the

interest” some qualities that are

inherently deserving of protection. See

Morrissey v. Brewer, 408 U.S. 471, 482,

92 S.Ct. 2593, 2601, 33 L.Ed.2d 484

(1972). Due to “the necessary withdrawal

Or limitation of many privileges and

rights” that results from lawful

incarceration, Price v. Johnson, 334 U.S.

266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed.

1356, protected interests that arise

purely from the Due Process Clause are

restricted to "the most basic liberty

interests in prisoners." Hewitt v. Helms,

459 U.S. at 467, 103 S.Ct. at 869. Thus,

the Constitution itself does not

guarantee either parole, Greenholtz

v. Inmates of the Nebraska Penal and

Correctional Complex, 442 U.S. l, 7, 99

S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979),

32

Or good-time credit for satisfactory

behavior, Wolff v. McDonnell, 418 U.S.

539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d

935 (1974), nor does it protect against

either the transfer from one prison to

another, Meachum v. Fano, 427 U.S. 215,

96 S.Ct. 2632, 49 L.Ed.2d 45l (1976), or

"administrative segregation" within a

particular prison, Hewitt v. Helms,

Supra. Once an individual has been

released into society under the

constraints of either parole or

probation, however, the resulting

freedom, "although indeterminate,

includes many of the core values of

unqualified liberty” and thus inherently

"falls within the protection of the

Fourteenth Amendment." Morrissey v.

Brewer, 408 U.S. at 482, 92 S.Ct. at 2601

(parole); Gagnon v. Scarpelli, 411 U.S.

778, 93 S.Ct. 1756, 36 L.Ed.2d 656

33

(1973) (probation); see also Vitek -v.

Jones, 445 U.S. 480, 493, 100 S.Ct. 1254,

1264, 63 L.Ed.2d 552 (1980) (involuntary

confinement for criminal conviction that

its imposition must be according to

Strictures of Due Process Clause).

In considering whether Ellard's

parole by the State of Alabama into the

custody of the State of Georgia created a

constitutionally protected interest, the

district court examined primarily the

nature of the interest immediately

Created by the grant of parole. See

Morrissey Vv. Brewer,, 408 U.S. at 483, 92

S.Ct. at 2601. Concluding that Ellard

has not received any liberties because of

the parole and [that] the possibility of

future liberty is speculative," the court

decided that Ellard's parole did not

Create a protected liberty interest.

If the nature of the liberty created

by the parole were the only basis for

determining that the interest deserves

protection by the Due Process Clause, we

might be inclined to agree with the

conclusion of the district court. AS we

have noted, however, a liberty interest

may also arise from state laws. See,

e.q- Hewitt v. Helms, supra;

Vitek v. Jones, 445 U.S. at 488, 100

S.Ct. at 1261 (1980); Whitehorn v.

Harrelson, 758, F.2d 1416, 1422 (llth

Cir. 1985). This occurs when a state

Places “Substantive limitations on

official discretion." Olim v. Wakinekona,

461 U.S. 238 at 249, 103 S.Ct. 1741 at

1747, 75 L.Ed.2d 813 (1983). Thus, for

example, although "the Constitution

itself does not guarantee good-time

credit for satisfactory behavior while in

prison," once a state has "created the

right to good time” and has established

35

standards for its revocation, "the

prisoners's interest has real substance"

and falls within the protections of the

fourteenth amendment. Wolff v.

McDonnell, 418 S.Ct. at 557, 94 S.Ct. at

2975. Similarly, although the mere

possibility of parole provides simply "a

hope that is not protected by due

process," a state might create by statute

"an expectancy of release [that] ... is

entitled to some measures of

constitutional protection." Greenholtz,

442 U.S. at ll, 12, 96 S.Ct. at 2105,

2106 (1079); see also Vitek v. Jones, 445

U.S. at 489, 100 S.Ct. at 1262 (liberty

interest against transfer to mental

hospital created by “objective -

expectation, firmly fixed in state law

and official penal complex practice").

As was correctly noted in the

Magistrate's report adopted by the

district court, the Alabama parole statute

frames the Parole Board's authority in

discretionary terms, and thus does not

Create for Alabama prisoners a protected

liberty interest in the expectation of

parole. See Thomas v. Sellers, 691 F.2d

487 (llth Cir. 1983). We are not here

confronted, however, with a claim that a

liberty interest in parole arises from

the mandates of the statute itself.

Rather, the issue is whether a liberty

interest arose from state law as a result

of the Parole Board's decision to

exercise its discretionary authority to

Grant parole to Ellard. We must

determine, then, whether having exercised

this discretionary authority, the Parole

Board was constrained by "substantive

limitations" on its authority to rescind

a parole decision. See Olim v.

Wakinekona, 461 U.S. at 249, 103 S.Ct. at

1747.

27

In arguing that the Board's grant of

parole to Ellard did not create a

constitutionally protected liberty

interest, the State claims that the

parole granted to Ellard was simply a

"transfer" to another state's prisons.

The State concedes that Ellard

technically received a "parole," 2 but

contends that the existence of a liberty

interest should depend upon the substance

of the action and not upon the words or

form used to accomplish it. This

argument, however, Simply begs that the

question whether a liberty interest is

Created by state law. Contrary to the

ZSomewhat contradictorily, the State also

-. urges us to accept the conclusion by the

Alabama Court of Criminal Appeals that

the Parole Board was without the

statutory authority to do any more than

transfer Ellard to the custody of another

state. See Ellard v. State, 474 So.2d at

752-753 As we discuss in note 8, infra, .

this conclusion implicitly was rejected

by the Alabama Supreme Court. 474 So.2d

at 759-60.

22

state's contentions, words and from do

matter. Indeed, they are the essence of

a substantive liberty interest created by

State law. As the Supreme Court has made

Clear, where a claimed liberty interest

does not arise from the Due Process

Clause itself, "([t]he ground for any

constitutional claim, if any, must be

found in statutes or other rules defining

the obligations of the authority charged

With exercising" the claimed liberty

interest. Connecticut Bd. of Pardons v.

Dumschat, 452 U.S. 458, 465, 101 S.Ct.

2460, 2465, 69 L.Ed.2d 158 (1981). The

Due Process Clause, in short, prohibits

the states from negating by their actions

rights that they have conferred by their

words-3 the states of course, may elect

SIf, as the State contends, words and

form did not matter, the Supreme Court

could not have concluded in Greenholtz,

supra, that the language of the

challenged state statute created a

39

not to con’er rights, such as parole,

that are not inherent in the

Constitution. But once a state does

choose to confer such a right, the

prisoner's interest has “real substance,"

and the right can be revoked only under

the limitations imposed by the Due

Process Clause. Wolff v. McDonnell, 418

U.S. at 557, 94 S.Ct. at 2975; see Vitek

v. Jones, 445 U.S. at 490-91, 100 S.CT.

at 1262-63.

Here, by the State's own concession,

Ellard formally was granted "parole"

under Alabama law. Despite the

Footnote continued from page 39

constitutionally protected interest in

parole, nor could the Court similarly

have concluded in Wolff v. McDonnell,

Supra, that the state statute alone

created a constitutionally protected

liberty interest in good-time credits.

If substance rather than language were

the sole touchstone for the existence of

a liberty interest, the Court in these

cases would have looked only to the

actions of the states.

40

State's arguments to the contrary,

Ellard's release into the custody of

another state does not minimize the fact

that, under Alabama law, this event

placed substantive limits on the state's

authority to return him to an Alabama

prison. Although the Alabama prison

System retains "legal custody" over

parolees, prisoners granted parole are

entitled "to go outside of prison walls

and enclosures" under conditions

prescribed by the Parole Board. Ala.

Code § 15-22-26 (1975). The parole

statute provides for the return of a

4Because Ellard was released from the

custody of the State of Alabama, the

State's reliance on Jago v. Van Curen,

454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13

(1981) (per curiam), is misplaced. In

Van Curen, the habeas petitioner was

informed that he would be granted parole,

but the parole decision was rescinded

before the parole went into effect.

Here, although Ellard has not been

released from prison, his parole from the

Alabama prison was effected by his

transfer to Georgia.

41

parolee to prison only if the parolee

violates the»conditions of parole, Ala.

Code § 15-22-32, of if the parole is

deemed void due to the failure of the

parole board to follow the statutory

requirements in granting parole, see Ala.

Code § 15-22-40. Nowhere does the

statute expressly or impliedly provide

the Parole Board the unlimited authority

to revoke a parole that has been granted.°

Indeed, the statute specifically states

that "the limitations and restrictions on

the powers of the board or the members

thereof shall be strictly construed."

20f course, if such authority were

provided, the Due Process Clause would

prohibit its exercise at least to

prisoners paroled into society. See

Morrissey v. Brewer, 408 U.S. 471, 475,

482, 92 S.Ct. 2593, 2597, 2601, 33

L.Ed.2d 484 (1972) (holding that parolee

has a liberty interest despite express

Statutory provision authorizing

revocation of parole at any time).

4A?

Ala. Code § 15-22-38. See Ex parte

Ellard, 474 So.2d at 766, (Emby, J.,

dissenting) (noting statutory

restrictions on Parole Board's

authority). In view of the statutory

restrictions on the authority of the

Parole Board to revoke a parole, we

conclude that Ellard had a constitutionally

protected liberty interest. §

©The restrictions on the Parole Board's

authority to revoke a parole also

require us to reject the State's

contention that Ellard's claim became

moot upon his transfer back into the

custody of Georgia following the

revocation of his parole. Under the

terms of the transfer, Ellard would be

returned to the custody of Alabama should

he ever receive parole from his Georgia

sentence. If his Alabama parole is

reinstated, however, Ellard would be

entitled to release into society upon

parole by Georgia. Hence, Ellard clearly

retains an interest in challenging the

revocation of his Alabama parole. See

Jago v. Van Curen, 454 U.S. at 21 n. 3,

36 S.Ct. at 36 n. 3; cf. 347, 348, 46

L-Ed.2d 350 (1975) (per curiam) (habeas

petition challenging parole procedures

rendered moot by petitioner's "complete

release from supervision").

43

These statutory provisions

notwithstanding, the State contends that

the Alabama Supreme Court upheld the

Board's actions under the rationale that

the Board has the inherent authority to

"rescind its actions" once "it determines

that it has made a mistake in carrying

out its duties." Ex parte Ellard, 474

So.2d at 763. This interpretation of the

Board's authority, the State contends, is

a matter of state law that is binding on

this court. Certainly, as the state

suggests, the construction of a state's

laws by its own courts may be of benefit

in determining whether the laws create a

constitutionally protected liberty

interest. See Greenholtz, 442 U.S. at

44

12, 99 S.Ct. at 2106.7 Here, however,

the decision by the Alabama Supreme Court

does not compel a decision that Ellard

had no liberty interest in his parole.

To the contrary, implicit in the Alabama

Supreme Court's majority opinion are the

assumptions that Ellard in fact was

granted a parole and that this event

‘On the other hand, the question whether

state laws create a federally protected

right never could depend exclusively on

the construction of those laws by a state

court. Cf. Logan v. Zimmerman Brush Co.,

455 U.S. 422, 432, 101 S.Ct. 1148, 1156,

71 L.Ed.2d 265 (1982) (rejecting state

court's decision that statute did not

Create property interest where result

"would allow the State to destroy at will

virtually any state-created property

interest"). A state court's

interpretation of a statute might be so

inconsistent with the statute's language

and history that the state court decision

itself would be a “wholly arbitrary and

irrational" action in violation of due

process. See Martinez v. State of

California, 444 U.S. 277, 282, 100 S.Ct.

553, 556, 62 L.Ed.2d 481 (1980); cf.

Douglas v. Buder, 412 U.S. 430, 432, 93

S.Ct. 2199, 2200, 93 S.Ct. 52 (1973)

(finding due process violation in

"unforeseen" construction of state law to

justify rescission of probation).

created a liberty interest sufficient to

trigger the procedural components of the

Due Process Clause.

The Alabama Supreme Court made clear

that the legal issue was “whether a

parole board can revoke a parole." 474

So.2d at 762. This statement of the

issue necessarily assumes that, under

State law, a parole was granted.8

Moreover, the court expressly stated that

a parole could be revoked only if “the

prisoner is accorded his due process

cights.” Id. at 763. Again, this express

limitation of the Board's ability to

revoke parole necessarily assumes that a

liberty interest was created by the grant

SBy so defining the issue, the Alabama

Supreme Court implicitly rejected the

conclusion of the Alabama Court of

Criminal Appeals that the Parole Board

was without authority to grant a prisoner

parole into the custody of another state.

See 474 So.2d at 752-753.

46

of parole to Ellard.?

7The state supreme court majority did

State that "Ellard did not have a

constitutionally protected liberty

interest." 474 So.2d at 760. This

statement, however, was based exclusively

on the majority's conclusion that the

State "parole statutes do not create a

‘liberty interest’ that cannot be

revoked.’ Id. at 759. Yet, as noted

previously, the issue presented is not

whether the statute itself creates a

liberty interest, but whether a liberty

interest was created by the action of the

Parole Board in granting parole to

Ellard. Although the Alabama Supreme

Court majority did not specifically

address this issue, the majority's

conclusion that “Ellard was entitled to a

due process hearing,” id at 760, 763,

necessarily assumed that a liberty

interest arose from the grant of parole.

Indeed, in considering whether the

Parole Board could reconsider and revoke

Ellard's parole, the majority gave no

consideration to the fact that Ellard had

not been released into society but into

the custody of another state. Rather,

the court analyzed the question in terms

of whether the Board could reconsider any

parole that had been granted, regardless

of whether the parolee was released to

another prison system or into society at

large. The State does not question that

a prisoner who has been paroled into

society has a constitutionally protected

liberty interest in parole. See

Morrissey V. Brewer, Supra.

The Alabama Supreme Court did not

conclude that, under state law, the grant

of parole to Ellard did not place

substantive limitations on the authority

of the Parole Board to rescind the

decision. Rather, the court merely

determined that, in spite of the

substantive limitations on the Parole

Board's authority to reconsider a grant

of parole, the Board's revocation of

Ellard's parole did not violate the Due

Process Clause.19 This conclusion

regarding the scope of the protection of

the Due Process Clause, however, concerns

a matter of federal law of which the

1V¥in determining that the Parole Board

had the authority to revoke Ellard's

parole, the majority of the Alabama

Supreme Court did not consider the

language, structure, or history of the

Alabama parole statute. Instead, relying

exclusively on Tracy v. Salamack, 572

F.2d 393 (2nd Cir. 1978), which upheld

the revocation by the state of New York

of work release for various classes of

48

federal courts have the authority, and,

indeed, the obligation, to make an .

independent determination. See, e.g.,

Vitek v. Jones, 445 U.S. at 490-91, 100

S.Ct. at 1262-63.

III. WHAT PROCESS IS DUE?

A.

Our determination that Ellard has a

protected liberty interest in parole does

not end our inquiry. Ellard contends

that his parole must be reinstated

because the Due Process Clause permits a

revocation of parole only if there is a

+’Pootnote continued from page 48

offenders, the majority first concluded

that the Due Process Clause does not

prohibit a state parole board from

‘ reconsidering and revoking a parole that

has been issued. Ex parte Ellard, 474

So.2d at 762. From this conclusion, the

majority then reasoned that the Alabama

Parole Board "was not powerless to

rescind its actions." Id. at 763. The

court's resolution of the issue thus

turned primarily on the federal law

question of the scope of the protection

of the Due Process Clause, and not on the

State law question of the authority

Granted by the parole statute.

49

violation of a parole condition. The

State argues, however, that Ellard's

parolw was void as a matter of state law

and thus that its revocation, after a

hearing, was consistent with the

procedural mandates of the Due Process

Clause. The state claims, in essence,

that if Ellard did have a constitutional

protected liberty interest, he received

all the process that he was due.

It is now well established that when

a liberty interest arises ‘ih of state

law, the substantive and procedural

protections to he accorded that interest

is a question of federal law.

See Bearden v. Georgia, 461 U.S. 660, 665

n. 7, 103 S.Ct. 2064, 2069 n. 7, 76

L.Ed.2d 221 (1983); Vitek v. Jones, 445

U.S. at 490-91, 100 S.Ct. at 1262-63; cf.

So

Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 540-42, 105 S.Ct. 1487,

1492-93, 84 L.Ed.2d 494 (property

interest). Consequently, if Ellard was

Granted a valid parole, the substantive

constraints of the Due Process Clause

would permit the parole to be rescinded

only if Ellard violated a parole

condition. See Bearden v. Georgia, 461

U.S. at 665 n. 7, 103 S.Ct at 2069 n. 7;

Douglas v. Buder, 412 U.S. 430, 93 S.Ct.

2199, 37 L.Ed.2d 52 (1973) (per curiam).

This federal substantive limitation on

the authority of a state to rescind a

valid parole does not Suggest, however,

that the state could rescind an invalid

parole only upon the violation of a

parole condition. There is little doubt,

for example, that, consistent with the

Due Process Clause, a state could revoke

Sl

a parole that was mistakently granted to

the wrong individual. Likewise, the Due

Process Clause would not prohibit a state

from declaring void a parole that was

granted in clear violation of the state's

parole guidelines, where, as here, the

parole statute expressly provides for

such a contingency, see Ala. Code

§ 15-22-40. ae

In view of the authority of the

States under the federal constitutional

law to declare void an illegally granted

parole, the state contends here that the

question whether a parole in fact is void

is purely a matter of state law. Thus,

the state claims, the federal habeas

courts are bound by the decision by the

Alabama Court of Criminal Appeals that

Ellard's parole was void. We disagree.!1

Although the Constitution does not

52

prohibit a state from declaring void a

previously granted parole, the state's

authority to do so is limited by the

procedural and substantive requirements

of the Due Process Clause. If this were

not so, simply by declaring a parole void

a state could effectively escape the Due

Process Clause's restrictions regarding

the revocation of parole. Consequently,

before a state can declare a parole void,

the parolee must be accorded procedural

protections similar to those that apply

when a valid parole is to be revoked.

See Morrissey v. Brewer, 408 U.S. at

488-89, 92 S.Ct.

++wWe disagree also with Ellard's

‘contention that this decision of state

law was reversed by the Alabama Supreme

Court. In contrast to the court of

appeals’ conclusion that Ellard was only

transferred to Georgia, see footnote 8,

Supra, the issue of voidness was not.

implicitly or explicitly rejected by the

Supreme court majority.

53

at 2603-04 (suggesting minimum procedural

requirements that must accompany parole

revocation). Furthermore, the

substantive protections of the Due

Process Clause would permit a state to

declare a parole void only if a clear

departure from established statutory and

regulatory guidelines substantially

undermined the Parole Board's decision

"that the State's penological interests

do not require [continued] imprisonment."

See Bearden v. Georgia, 461 U.S. at

469-70, 103 S.Ct. at 2071.

B.

saennie the district court

dismissed Ellard's petition on the basis

of the pleadings, we have an insufficient

factual record upon which to determine

whether the state's nullification of the

parole satisfied the procedural and

substantive requirements of the Due

Process Clause. Consequently, we must

54

remand this case for the district court

to conduct an evidentiary hearing.12

Due to the novel legal questions posed by

Ellard's substantive due process claim,

however, we deem it appropriate to

provide some guidance for the district

court in evaluating the facts that are

likely to be presented.13

In evaluating the evidence

regarding the validity of Ellard's parole

+“In addition to his due process claims,

Ellard also challenged the rescission of

his parole on equal protection grounds.

In dismissing Ellard's habeas petition,

the district court, adopting the

magistrate's recommendation, concluded

that the viability of the equal

protection claim was dependent upon the

em ictence of a liberty interest. We need

not consider the validity of this

Getermination. In view of our conclusion

“that the grant of parole to Ellard did

Create a liberty interest, the district

court should reconsider the equal

protection claim on remand.

l3the standards for considering Ellard's

procedural due process claim are

adequately set forth in Morrissey v.

Brewer, Supra, and subsequent cases.

the district court should be mindful that

the issue to be decided is not whether

the court would have granted parole on

the basis of all the evidence presented,

Or even whether, on the basis of the

additional evidence, the Parole Board

acted wisely in declaring Ellard's parole

void. Rather, the issue is whether, as a

matter of state law constrained by the

Due Process Clause of- the federal

Constitution, the initial parole granted

to Ellard was void. As we have

indicated, the Due Process Clause

permits a state to declare a void only if

the parole was issued after a clear

departure from state law and this

departure substantially undermined the

determination whether the state's

penological interests would be served by

continued imprisonment. A state cannot,

consistent with the Due Process Clause,

declare a parole void simply on the basis

ceo

of additional information that was not

previously considered.

With these principles in mind, we

consider the reasons cited by the State

in support of its contention that

Ellard's parole was void. In upholding

the Parole Board's nullification of

Ellard's parole, the Alabama Court of

Criminal Appeals concluded that the

parole was void due to the failure of the

Parole Board to: (1) obtain and consider

certain evidence prior to granting the

parole as required by Ala. Code

§ 15-22-25; (2) consider the

"considerable evidence of public

opposition" to the parole; and (3) ensure

that Ellard have self-sustaining

employment as required by Ala. Code

§ 15-22-28(d). See 474 So.2d at 752.

Another ground for nullification that has

been asserted but was not relied upon by

the Alabama appeals court is that the

57

Parole Board failed, in violation of Ala.

Code §15-22-31, sufficiently to consider

the possibility that Ellard might “lapse

into criminal ways."14

Applying the principles previously

Stated, we have little difficulty in

rejecting as without merit all but the

first of the asserted grounds for the

nullification of Ellard's parole. The

Alabama parole statute nowhere instructs

the Parole Board to consider public

opposition in determining whether a

particular inmate is entitled to parole.

The failure of the Board to consider

public opposition in this case

14this rationale was one of two grounds

Stated by Attorney General Graddick in

cecommending that the Parole Board revoke

Ellard's parole. The other rationale

Stated by the attorney general was that

in granting the parole the Board relied

upon files that were insufficient under

Ala. Code § 15-22-25. In revoking the

parole, the Board indicated only that it

did so in accordance with the opinion of

the attorney general.

58

" )

thus could not constitute a deviation

from established parole guidelines.

Similarly without foundation is the

conclusion by the Alabama Court of

Criminal Appeals that the Parole Board

improperly failed to ensure that Ellard

would be employed. The Alabama parole

Statute prohibits granting a parole

unless a majority of the Parole Board

determines that the parole candidate

"will be suitably employed ... or will

not become a public charge.” Ala. Code

§ 15-22-28(d) (emphasis added).

Consequently, the parole could be deemed

invalid only if incarceration in another

state constituted a "public charge” under

the terms of the parole statute. Such a

construction of the statute, however,

effectively would preclude parole into

the cus tody of another state. As

previously noted, the Alabama Supreme

Court, in assuming that Ellard was

granted a parole, implicitly rejected

such a construction.

Nor can Ellard's parole be deemed

void due to the Parole Board's alleged

failure to consider whether Ellard might

"lapse into criminal ways." Section

15-22-3l(a) of the Alabama Code

authorizes the revocation of a parole

where either a parole officer or a member

of the Parole Board has “reasonable

cause" to believe that a parolee “has

lapsed, or is probably about to lapse,

into criminal ways." This section,

however, expressly applies only to

"paroled prisoner,” and thus cannot serve

as a basis for concluding that a parole

was granted in violation of established

state guidelines.15

tT

This does not suggest, of course, that

the Board's alleged failure to consider

the possibility of a lapse into criminal

ways is entirely irrelevant in judging

60

a

The only remaining basis for

conducting that Ellard's parole was void,

then, is that the Parole Board failed to

comply with the requirements of Ala. Code

§ 15-22-25 that the Board obtain certain

information prior to granting a parole.

In determining that the Board did not

comply with this provision, the Alabama

Court of Criminal Appeals noted,

specifically, that the Board failed to

obtain and consider: (1) a pre-sentence

psychological report-made of Ellard in

1971, (2) evidence of misconduct and

criminal activity while Ellard was on

escape in 1977, and (3) an escape in

1971. The State also contends in its

brief before this court that the files

Fgotncte continued from page 60

the validity of a parole. Rather, any

evidence regarding the likelihood of

lapse should be considered in determining

whether the Parole Board acted in

violation of its duty under Ala. Code

§ 15-22-25. See infra.

relied upon by the Parole Board in

granting Ellard parole contained an

inaccurate and incomplete account of his

crimes.

From the limited record before -

us, it appears that the failure of the

Parole Board to consider the pre-sentence

psychological report was a departure

from the established parole guidelines.

The Alabama parole statute requires the

board to acquire from each parole

candidate "information as complete as may

be obtainable," including any existing

availabe reports on the candidate's

"psychiatric condition and history." Ala.

Code § 15-22-25(a); cf. Sellers v.

Thompson, 452 So.2d 460, 463 (Ala. 1984)

(statute does not require Parole Board to

Order a psychiatric evaluation where .a

report does not exist). “The report at

issue apparently was both "existing" and

"available" within the terms of the

62

statute, since, according to the Alabama

Court of Criminal Appeals, it was in the

files of the State Department of

Corrections. 474 So.2d at 752.

Less evident from the record before

us, however, is whether the absence of

this report substantially undermined the

Parole Board's determination that the

State's penological interests would not

be served by Ellard's continued

imprisonment in Alabama. Among the

factors that may be relevant to this

determination are the thoroughness of the

psychological evaluation, the lapse of

time between the evaluation and the

parole determination, evidence that was

before the Parole Board regarding

Ellard's rehabilitation, and the

continued accuracy of the report as an

indication of Ellard's psychological

63

ae 3

state at the time his parole was issued.16

In contrast to that of the

psychological report, the omission of the

Other alleged new evidence does not

readily appear to have been so clearly

a departure from the parole guidelines.

The Alabama Court of Appeals apparently

concluded that the absence of the certain

evidence concerning Ellard's escapes in

1971 and 1977 rendered legally

insufficient the “complete” investigation

of Ellard's "social and criminal history"

that is required by Ala. Code

§ 15-22-25((b) before a parole can issue.

The Due Process Clause, however, does not

+Sat the evidentiary hearing, Ellard

Should be permitted, if he desires, to

introduce evidence challenging the

accuracy of the 1971 psychological report

at the time of his parole. Cf. Morrisey

v. Brewer, 408 U.S. at 489, 92 S.Ct. at

2604 (procedural due process requires

that parolee may introduce evidence in

parole revocation hearing). The State

similarly should be permitted to present

evidence supporting the validity of the

report.

64

permit such an expansive reading of the

statute to serve as a basis for declaring

the parole void. The pre-parole

investigation of Ellard contained a full

account of Ellard's prison record,

including the fact that he escaped for a

Seven-month period in 1978 until he

recaptured in Arizona while attempting to

uSe an altered money order. When this

report was conducted, Ellard's file

already contained a pre-sentence report

detailing the relevant facts of his life

prior to beginning his prison term.

Particularly in view of the pre-sentence

report then in Ellard's file, the

pre-parole report cannot be deemed

legally insufficient merely because it

might have been more complete. Such a

construction of the statute would enable

the State to render void any parole by

the simple expedient of producing

additional information that previously

65

was not considered. This, as was

previously ‘noted, the Due Process Clause

does not permit. Consequently, the

absence of the additional evidence

regarding the escapes can be considered a

departure from established state parole

guidelines only if the district court

finds that the information was contained

in "existing available records" that the

Parole Board would have been required to

obtain pursuant to Ala. Code

§ 15-22-25(a). Cf£. Sellers v. Thompson,

Supra.

The details of Ellard's crimes

require.a similar finding before their

absence in the parole determination can

be deemed a departure from established

State guidelines. Section 15-22-25(a)

requires that the Parole Board must

obtain certain information, including "a

complete statement of the crime for which

[the parole candidate] is then sentenced,

66

[and] the circumstance of such crime."

Although the Alabama Court of Criminal

Appeals did not refer to the

incompleteness of the account of Ellard's

crimes in upholding the Parole Board's

nullification of the parole, the State

now contends that this was one of the

factors that rendered the grant of parole

invalid. As with the pre-parole

investigation, however, the information

of Ellard's crimes contained in his

parole file cannot be deemed so

incomplete as to be legally insufficient.

Contrary to the State's contention, a

pre-sentence report contained in the file

did not give the false impression that

Ellard's crime begans as a friendly

encounter; the report clearly indicates

that Ellard "threatened them with a knife

and made them get into his car." Nor,

despite the State's assertions, did

Ellard's parole file inaccurately inform

67

the Parole Board that Ellard's victims

consented to sexual actions. Although

the Alabama pre-sentence report stated

only that "Ellard admits having sexual

intercourse" with the murder victim, a

report in Ellard's file that had been

prepared by Georgia parole authorities

accurately stated that Ellard had

"abducted two victims in Alabama and...

raped each victim before murdering one

and attempting to murder the other." As

with the information regarding the

escapes, the report of Ellard's crimes

might have been more complete. The

parole file, however, did inform the

Board that Ellard had forcibly abducted

his victims and sexually assaulted them

prior to brutally murdering one and

attempting to murder another. Thus, as

with the escape evidence, the absence of

a more detailed account of the crimes

cannot be considered a departure from

68

—

State guidelines unless the information

was contained in "existing available

records" that the Board should have

obtained pursuant to Section 15-22-25(a).

If the district court does find

that the additional information was in

existing records that the Parole Board

should have considered, the court must

determine whether the absence of the

evidence substantially undermined the

Parole Board's decision to grant Ellard

parole. In making this determination,

the court should consider factors similar

to those previously stated in connection

With the psychological report.

IV. CONCLUSION

For the foregoing reasons, the

judgment of the district court, is

REVERSED, and the case is REMANDED with

instructions. FAY, Circuit Judge,

dissenting:

69

Most respectfully I dissent. [In the

first instance, I do not believe being

transferred from a jail in one state to a

jail in another state grants one the

freedom discussed in Morrissey, Gaynon or

Vitek. In the second instance, the

Alabama Court of Criminal Appeals has

ruled that the decision of the Parole

Board was made without the information

required under Alabama law. This

decision was affirmed, on different

grounds, by the Alabama Supreme Court.

Under these circumstances I would find

that the petitioner had no liberty

interest and affirm the ruling of the

district court.

TO argue, as does the majority .

opinion, that because the Alabama law

places restrictions on the authority of

the Parole Board to revoke a parole the

petitioner has a constitutionally

protected liberty interest is circular

70

reasoning. Alabama law declares that the

decision of the Parole Board was voia i¢

based upon incomplete information

required by the statutory scheme. Ala.

Code § 15-22-40. It appears to me that

the majority is now asking the federal

district court to do exactly what has

been done by the Alabama state courts.

If the decision of the Parole Board was a

nullity under Alabama law there existed

no liberty interest and chive can be no

claim of denial of due process.

71

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 86-7438

RICHARD MARK ELLARD

Petitioner-Appellant

V.

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 STATE OF ALABAMA

Rés pondents-Appellees

Appeal from the United States District

Court for the Middle District of Alabama

on petition(s) for rehearing and

suggestion(s) of rehearing in Banc

Opinion August 19, 1987, 11 Cir., 198 ’

F.2d (September 24, 1987)

Before FAY and KRAVITCH, Circuit Judges,

and MORGAN, Senior Circuit Judge

PER CORIAM:

(X) The petition(s) for Rehearing are

DENIED and no memeber of this panel nor

Other Judge in regular active service on

the Court having requested that the Court

be polled on rehearing in banc (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing In Banc are

DENIED.

{Irrelevent Part of Form deleted]

72

ENTERED FOR THE COURT:

/S/PHYLLIS KRAVITCH

United States Circuit Judge

zs e£+ e &

IN THE UNITED STATES COURT OF APPEALS

POR THE ELEVENTH CIRCUIT

NO. 86-7438

RICHARD MARK ELLARD

Petitioner-Appellant

V.

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 STATE OF ALABAMA

Res pondents-Appellees

Appeal from the United States District

Court for the Middle District of Alabama

ORDER:

[Irrelevant part of form deleted]

(X) The motion of appellees Alabama Board

of Pardons and paroles, et al for (X)stay

() recall and stay of the issuance of the

Mandate pending petition for writ of

certiorari is GRANTED to and including

November 24, 1987, the stay to continue

in force until the final disposition of

the case by the Supreme Court, provided

that within the period above mentioned

there shall be filed with the Clerk of

this Court the certificate of the CLerk

of the Supreme Court denying the writ, or

upon expiration of the stay granted

73

herein, unless the above mentioned

certificate shall be filed with the Clerk

of this Court within that time.

{Irrelevent Part of form deleted]

ENTERED FOR THE COURT:

/S/PHYLLIS KRAVITCH

United States Circuit Judge

74

APPENDIX C

RELEVANT ALABAMA STATUTES

CODE OF ALABAMA, 1975

TITLE 15.

CRIMINAL PROCEDURE.

CHAPTER 22.

PARDONS, PAROLES AND PROBATION.

Article 2.

Pardons and Paroles.

§15-22-20. Board of pardons and paroles -

Creation; appointment,

qualifications, oath, terms of

office, compensation and

removal of members; filling of

vacancies; chairman; quorum;

members not to hold other

offices.

(a) There shall be a board of pardons

and paroles which shall consist of three

75

members, but no two members of such board

shall be residents of the same

congressional district.

(b) Any vacancy occuring on the board,

whether for an expired or unexpired term,

shall be filled by appointment by the

governor, with the advice and consent of

the senate, from a list of three

qualified persons nominated by a board

consisting of the chief justice of the

Supreme court as chairman, the presiding

judge of the court of criminal appeals

and the lieutenant governor. The

nominating board shall as soon as

practicable after a vacancy occurs,

whether for an expired or unexpired term,

meet and select by majority vote the

names of three persons to be submitted to

the governor. It shall immediately

thereafter submit its nominations to the

governor, who shall make his appointment

from such list within 10 days thereafter.

Appointments made at times when the

senate is not in session shall be

effective ad interim. Any appointment

made by the governor while the senate is

in session must be submitted by him to

the senate not later than the third

legislative day following the date of the

appointment; any appointment made while

the senate is not in session shall be

submitted not later than the third

legislative day following the reconvening

of the legislature. In the event the

senate fails or refuses to act on the

appointment within five legislative days

after its submission, the appointment

shall be void, and the person whose name

was thus submitted shall not thereafter

be reappointed. In the event an

76

appointee is not confirmed by the senate,

the nominating board shall make three

nominations; one of them shall be

appointed, and his appointment shall be

submitted to the senate as provided in

this section. The nominating and

appointing procedure required in this

section shall be continued and followed

until an appointment is made and

completed.

(c) Members of the board shall be

appointed for terms of six years

commencing on July 1 in the years 1953,

1955 and 1957, and shall serve until

their successors shall have been

appointed and shall have gualified. Any

person appointed to fill the vacancy for

an unexpired term shall vacate the office

upon the expiration of that unexpired

term.

(d) The governor shall designate one of

the members as chairman, and such

chairman shal preside at sessions of the

board.

(e) Each member shall take the

constitutional oath of office and shall

be subject to impeachment for any of the

causes specified in section 173 of the

Constitution; and the procedure in cases

of impeachment shall be in the manner

provided by section 175 of the

Constitution; provided, however, that in

the event the governor shall determine

that any member of the board shall have

become incapacitated by reason of

physical or mental disability or illness

to the extent that he cannot efficiently

perform the duties of his office, he

shall direct the attorney general to

proceed to the determination of that

77

issue in an inquisition proceeding

instituted by him in the circuit court of

Montgomery county, Alabama. [In the event

the issue is determined in such court

against the board member, the_court shall

declare the office vacant, and the same

shall be vacated and a successor

appointed, as provided in this section.

(f£) Two members of the board shall

constitute a quorum for the transaction

of the official business of the board.

(g) The members of the board shall

devote their full time to their official

duties and shall hold no other office of

profit during their incumbency.

(h) The annual compensation of the

chairman and each associate member of the

board of pardons and paroles shall be

such amount as is provided by law. Such

salaries shall be paid in equal

installments from the state treasury in

the same manner that salaries of other

state officers are paid. (Acts 1939, No.

275, p- 426; Code 1940, T. 42, §$§1, 1(3);

Acts 1951, No. 599, p. 1030; Acts 1953,

No. 822, p. 1105; Acts 1957, No. 195, p.

254; Acts 1967, No. 51, p. 378, § 1; Acts

1971, Mo. 71, p. 333, $ 1.)

§15-22-23. Same - Meetings; action after

notice.

(a) Meetings of the board of pardons and

paroles shall be held at the call of the

chairman or as may be determined by the

board.

(b) No pacdon, parole, remission of fine

or forfeiture or restoration of civil and

political rights shall be granted or

Ordered except in an open public meeting

78

of the board after due notice of the

meeting shall have been given to each

member of the board in such manner as the

board may direct. (Acts 1939, No. 275,

p. 426; Code 1940, T. 42, $4; Acts 195l,

No. 599, p. 1030.)

§15-22-24. Same - Duties generally;

annual report; badge and

pistol of probation and parole

officer included in retirement

benefits; representation of

applicant by state official.

(a) The board of pardons and paroles,

hereinafter referred to as "the board,"

shall be charged with the duty of

determining what prisoners serving

Sentences in the jails and prisons of the

state of Alabama may be released on

parole and when and under what

conditions. Such board shall also be

charged with the duty of supervising all

prisoners released on parole from the

jails or prisons of the state and of

lending its assistance to the courts in

the supervision of all prisoners placed

on probation by courts exercising

criminal jurisdiction and making such

_investigations as may be necessary in

connection therewith, of determining

whether violation of parole or probation

conditions exist in specific cases,

deciding, in the case of parolees, what

action should be taken with reference

thereto, causing, in the case of

probationers, reports of such

investigations to be made to the judges

of the courts having jurisdiction of the

probationers and of aiding parolees and

79

probationers to secure employment. It

shall also be the duty of the board to

personally study the prisoners confined

in the jails and prisons of the state so

as to determine their ultimate fitness to

be paroled.

(b) Between October 1 and December 31 of

each year, the board shali make a full

report of its activities and functions

during the preceding year, and such

report shall be prepared in

quadruplicate, with one copy thereof

lodged with the governor, one filed in

the office of the secretary of state, one

filed in the office of the department of

archives and history, and one copy

retained in the permanent records of the

board. é'

(c) The board may accept grants,

devices, bequests or gifts and make

expenditures therefrom for the operations

of the board and not individually as

board members.

(d) The board shall have the power and

authority to enter contracts to

accomplish the objectives of the board.

(e) The board may adopt policy and

procedural guidelines for establishing

parole consideration eligibility dockets

based on its evaluation of a prisoner's

prior record, nature and severity of the

present offense, potential for future

violence, and community attitude toward

the offender.

(f£) Any »erson who, at the time of his

retirement, is employed by-the board of

‘pardons and paroles as a probation and

parole officer, shall receive as part of

his retirement benefits, without cost to

him, his badge, and pistol.

(g) The board is hereby authorized and

empowered to promulgate rules and

80

regulations to establish a program that

will authorize the board to expend state

moneys not to exceed $250.00 per year for

awarding recognition incentive awards for

outstanding employees.

(h) No state official shall appear or

Otherwise represent an applicant before

the board for any consideration or thing

of value unless said official was counsel

of record for the applicant during a

trial or hearing in the regular judicial

process that led to said applicant's

present status; however, no state

official shall be prohibited from

appearing without consideration before

‘the board or board panel on behalf of an

applicant.

(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

conditionally transferred prisoner

Satisfy all detainers against him prior

to completion of his Alabama sentence,

said prisoner shall not be released from

custody without further order of the

board of pardons and paroles.

(j) The board and its agents shall have

the power and authority to administer

Oaths and affirmation, examine witnesses

and receive evidence on all matters to

be considered by the board. (Acts 1939,

No. 275, p. 426; Code 1940, T. 42, $5;

81

Acts 1951, No. 599, p. 1030; Acts 1982,

No. 82-153, §4.)

§15-22-25. Investigation and report on

sentenced prisoner's social

and criminal records.

(a) As to each prisoner sentenced and

received in the jails and prisons of the

State of Alabama, it shall be the duty of

the board of pardons and paroles, while

the case is still recent, to cause to be

obtained and filed information as

complete as may be obtainable at that

time with regard to each such prisoner.

Such information shall include a complete

Statement of the crime for which he is

then sentenced, the circumstances of such

crime, the nature of his sentence, the

court in which he was sentenced, the name

of the judge and district attorney and

copies of such probation reports as may

have been made as well as reports as to

the prisoner's social, physical, mental

and psychiatric condition and history.

It shall be the duty of the clerk of the

court and of all probation officers and

Other appropriate officials to send such

information as may be in their possession

Or under their control to the board upon

request. The board shall also at that

time obtain and file a copy of the

complete criminal record of such prisoner

that may exist. When all such existing

available records have been assembled,

they shall be presented to the board or

to some officer designated by it, who

shall determine whether any further

investigation of such prisoner is

necessary at that time and, if so, the

82

nature of such investigation, and the

board shall thereupon order it to be

made. Such investigation shall be made

while the case is still recent, and the

results of it with all other information

shall be filed in the office of the board

SO as to be readily available when the

parole of such prisoner is being

considered.

. (b) The board shall not act on any

application or case until a complete

investigation of the prisoner's social

and criminal record has been made by a

parole officer and a written report

thereof made a part of the prisoner's

file. (Acts 1939, No. 275, p. 426; Code

1940, T. 42, $6; Acts 1951, No. 599,

$1030.)

§15-22-26. Standards for release of

prisoners on parole.

No prisoner shall be released on parole

merely as a reward for good conduct or

efficient performance of duties assigned

in prison, but only if the board of

pardons and paroles is of the opinion

that there is reasonable probability

that, if such prisoner is released, he

. will live and remain at liberty without

violating the law and that his release is

not incompatible with the welfare of

society. 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

83

expiration of the maximum term specified

in his sentence or until he is fully

pardoned. (Acts 1939, No. 275, p. 426;

Code 1940, T. 42, §7; Acts 1951, No. 599,

p. 1030.) -

§15-22-27. Pardon or parole of person

having death sentence commuted

to life imprisonment.

(a) Any person whose sentence to death

has been commuted by the governor to life

imprisonment shall not thereafter be

eligible for a pardon unless sufficient

evidence is presented to the board of

pardons and paroles to satisfy it that

such person was innocent of the crime for

which he was convicted, the board votes

unanimously to grant such person a

pardon, and the governor concurs in and

approves the granting of the pardon.

(b) Any person whose sentence to death

has been commuted by the governor to life

imprisonment shall not be eligible for a

parole from the board of pardons and

paroles until he shall have served at

least 15 years of such life sentence, and

any parole granted contrary to the

provisions of this subsection shall be

void.

(c) This section shall not be construed

to deny any person whose sentence of

death has been commuted to life

imprisonment the right to apply to the

courts of this state for such remedy as

such person is entitled to under the laws

of Alabama. (Acts 1951, No. 804, p.

1401, $$l, 2.)

84

§15-22-27.1. Parole of persons convicted

of certain felonies or

attempts and having been

previously convicted of

felonies or attempts

resulting in serious

physical injury.

Any person convicted of any act, or

attempt to commit the act, of murder,

rape, robbery or assault with a deadly

weapon, the commission of which directly

and proximately resulted in serious

physical injury to another and the

commission of which follows. within five

years a previous conviction of another

felony, Or attempt thereof, resulting in

serious physical injury to another, shall

upon conviction serve such Sentence as

may be imposed without benefit of parole,

notwithstanding any law to the contrary.

(Acts 1977, No. 639, p. 1087.)

§15-22-27.2. Parole of persons sentenced

to life imprisonment upon

second convictions of Class

A felonies.

In all cases where a criminal defendant

‘has been convicted of a Class A felony

committed after a previous conviction of

another Class A felony, and such second

conviction results in a sentence to

imprisonment for life, he shall not be

eligible for parole. (Acts 1977, No.

640, p. 1088.)

85

specify in writing the conditions of his

parole, and a copy of such conditions -

shall be given to the parolee. A

violation of such conditions may render

the prisoner liable to arrest and

ceimprisonment.

(b) The board of pardons and paroles

shall adopt general rules with regard to

conditions of parole and their violation

and may make special rules to govern

particular cases. Such rules, both

general and special, may include, among

Other things, a requirement that:

(1) The parolee shall not leave the

state without the consent of the board;

(2) He shall contribute to the

Support of his dependents to the best of

his ability

(3) He shall make reparation or

restitution for his crime;

(4) He shall abandon evil

associates and ways; and

(5) He shall carry out the

instructions of his parole officer and

in general so comport himself as such

officer shall determine. (Acts 1939,

No. 275, p. 426; Code 1940, T. 42, §9;

Acts 1951, No. 599, p. 1030.)

$15-22-38. Duties of board mandatory;

powers strictly construed.

The duties imposed upon the members of

the board of pardons and paroles by this

article are mandatory, and the

limitations and restrictions on the

powers of the board or the members

thereof shall be strictly construed.

(Acts 1951, No. 599, p. 1030.)

§15-22-39. Penalty for oy gars Or

failing to perform duty.

Any member of the board of pardons and

paroles who knowingly or willfully

neglects or fails to perform any duty

enjoined upon him by the provisions of

this article is guilty of a felony and,

upon his conviction, shall be punished by

imprisonment in the penitentiary for not

less than one nor more than five years,

and any offense as defined by section

36-10-14 by a member of the board shall

also be a felony and be punishable as

provided in this section. (Acts 195l,

No. 599, p. 1030.)

§15-22-40. When pardon, etc., null and

void.

Any pardon, parole, remission of a fine

or forfeiture or restoration of civil and

political rights granted, ordered or made

contrary to the provisions of this

article shall be null and void and shall

have no force or effect. (Acts 1951, No.

599, p. 1030.)

89

APPENDIX D

DECISION AND OPINION

OF THE STATE COURT TRIAL COURT

[ UNREPORTED]

IN THE CIRCUIT COURT OF

MONTGOMERY COUNTY, ALABAMA

RICHARD MARK ELLARD, )

)

Petitioner, )

)CIVIL ACTION NO.

Vs. cv 82-1216-K

)

STATE OF ALABAMA, )

et al., )

)

Respondents. )

This cause comes before this Court

on Petition for Writ of Certiorari filed

herein by petiti@#ec Richard Marck Ellard

ceguesting this Court's review of the

actions of the Alabama Board of Pardons

and Paroles relative to the parole of

said petitioner. Following a careful

consideration of the records submitted

90

. —

and briefs of learned counsel, it is the

opinion of the Court that the following

findings and Order should be entered.

Richard Mark Ellard was sentenced on

May 9, 1972 to a term of life plus twenty

(20) years in the state penal system for

the offenses of murder in the first

degree and assault with intent to murder.

He became eligible for parole in 1980 and

was evaluated for that purpose in

December of that year.

Following a parole hearing in early

1981, and with the consent of two of the

three members of the Alabama Board of

Pardons and Paroles, a certificate of

parole was issued to Ellard on March 2,

1982. Ellard was then transferred to the

Georgia penal system where he was to

complete serving another life sentence

for murder in the first degree. While

incarcerated in Alabama, the State of

Georgia had an active detainer on

Ellard.

The evaluation report contained in

the Parole Board's file indicated that

Ellard would become eligible for parole

consideration in Georgia in May of 1981.

In April of 1981, the Parole Board

served Ellard with a notice of violation

of condition eight of his parole and

stated as grounds therefor "new

information". Attached to the notice was

a detailed statement as to the nature of

the "new information" relied upon. A

probable cause hearing was held on May

14, 1981 after which the matter was

ceferred to the Parole Board for a full

revocation hearing.

A hearing was held before the Board

on July 7, 1982 and a notice of

revocation was issued on July 15, 1982.

The revocation notice stated as grounds

92

for the Board's actions "Attorney

General's opinion, 4-17-81" and "New

Evidence."

Title 15, Chapter 22, Article 2 of

the Code of Alabama (1975) contains the

statutory provisions relative to the

granting of pardons and paroles in the

State of Alabama. Those duties and

obligations as set forth in the Code are

mandatory and the limitations and

restrictions applicable to the Board are

to be strictly construed. §15-22-38.

The exclusive authority to grant

paroles in Alabama is vested in the

Alabama Board of Pardons and Paroles.

§15-22-36. In granting paroles, the

Board is limited in its authority by the

statutory provisions of Title 15, Chapter

22, Article 2 of the Code. Minimum

standards for release on parole are

stated in §15-22-26, and §15-22-29 sets

93

forth minimum standards for conditions of

parole once an inmate is released.

It cannot be argued that a Parole

Board may rescind a parole that has been

legally issued nor can it revoke a parole

without a good cause. Generally, paroles

are revoked due to violations of the

conditions of parole as set forth by the

Parole Board under the auspices of

§15-22-29. |

Before the Parole Board may act on

an application for parole, it is required

that a complete investigation of the

prisoner's social and criminal record be

made by a parole officer and written

findings be submitted to the prisoner's

file which presumably will be placed

before the Board. §15-22-25(b). Without

such report, the Board is prohibited from

acting on any application submitted to

it.

94

In §15-22-40, it is provided that

any parole issued in violation of the

statutory provisions of Title 15, Chapter

22 is null and void and without effect.

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.

It is the opinion of this Court that

the Alabama Board of Pardons and Paroles

failed to fulfill its statutorily

mandated function in the issuance of the

Ellard parole and for that reason and

pursuant to §15-22-40, the parole issued

to Ellard was void ab initio.

It is the further opinion of this

Court that the Alabama Board of Pardons

and Paroles is vested with the authority

to promulgate procedural guidelines for

the review of the propriety of the

granting of the initial parole under the

provisions of §15-22-37.

Based upon the foregoing and after

consideration of the record on

submission, it is therefore,

ORDERED, ADJUDGED and DECREED that:

The actions of the Alabama Board of

Pardons and Paroles of July 15, 1982 in

the matter of Richard Mark Ellard is due

to be and is hereby affirmed.

96

_

DONE this 3lst day of August, 1983.

/S/H. MARK KENNEDY

H. MARK KENNEDY

CIRCUIT JUDGE

Charles A. Graddick

Joseph G. L. Marston, III

Ralph I. Knowles

Ira A. Burnim ~

97

APPENDIX E

MATERIALS FROM THE ALABAMA BOARD OF

PARDONS AND PAROLES

I.

AT TIME OF SENTENCE REPORT, PART 1

SEPTEMBER 18, 1972

( PRE-PAROLE )

* © ££ 2 4

Form No. 2

STATE BOARD OF PARDONS AND PAROLES

MONTGOMERY

REPORT OF INVESTIGATION

Received

September 21, 1972

State Board of

Pardons and Parcle

At time of Sentence xX

Pre-Parole

Name Richard Mark ELLARD

Number 105, 115 County Blount

Alias None Age, Race & Sex W M-26

Days in Jail

Offense Murder First Degree

Assault WI to Murder

Sentence Life

20 years

91

Judge L.P. Waid D.A: Charles Robinson

Address 1440 Ginger Street

Gardendale, Alabama

Date of Conviction 5-9-72

LEGAL HISTORY:

1. Previous Offenses and Holdovers:

No previous arrest in Blount County,

however subject admits to several traffic

arrests by both Birmingham Police

Department and State Troopers in

Birmingham and Jefferson County during

the past several years. This will have

to be verified by Jefferson County

Probation Office.

2. PRESENT OFFENSE: Case No. 9551

-Murder First Degree. On September 4,

1971, Richard Mark Ellard killed

Charlotte Parks in an abandoned isolated

area in Blount County, Alabama. Both

Parks and Ellard were Jefferson County

residences. They according to the

Subject and a statement from Mrs. Conn

had met at a bar in Birmingham and

Subject was drinking. Ellard, Charlotte

Parks and one Nancy Conn drove to this

area in Blount County where Ellard beat

Miss Parks to death with what apparently

was a heavy sharp metal instrument or

tool. Ellard admits having sexual

intercoucse with this girl prior to this

offense. Ellard has related of his own

free accord, after being informed of his

rights and his right to remain silent and

consult an attorney that he had been

99

working day and night for some three or

four days practically without any sleep

and had been drinking beer off and on for

three or four days. Ellard relates that

all the details were spotty and confusing

and he had periods of time that he did

not remember everything. Ellard was

indicted by the October 1971 Grand Jury

for First Degree Murder. He subsequently

plead guilty and on advice of his

counselor and was sentenced to life

imprisonment.

Case No. 9553 -Assault with intent to

murder. This offense occurred at the

same time and same place as the above

murder, case 9551. All of the details

are identical with the exception, of

course, of the victim Mrs. Nancy Conn.

Nancy Conn and Charlotte Parks both were

picked up (forced by subject, who

threatened them with a knife and made

them get in his car) in the Birmingham

area and taken in his car to the above

mentioned site of the two offenses. Mrs.

Conn was beaten with a heavy instrument

Or tool until she was apparently

unconscious and left for dead. However,

she subsequently came to and was able to

alert a resident in this area, after she

had been in a semi-conscious state for a

period of two days, when this resident

came to dump garbage. Mrs. Conn had

memorized Ellard's tag number, and the

arrest was a result of this. Ellard was

indicted by the Blount County Grand Jury

on AWIM Mrs. Nancy Conn in Owtober 1971.

He subsequently plead guilty on May 9,

1972, and was sentenced to 20 years in

the State Penitentiary.

100

SOCIAL DATA:

(All items not verified, subject was a

resident of Jefferson County and had

never lived or worked in Blount County.)

1. Family Situation:

A. Parents: Father, Ralph Odgen

Ellard, deceased, November 1964.

M-DC 9-22-72

Reportedly had a good reputation and

at the time of his death was a

foreman for a house moving company.

He died of lung cancer.

Mother, Evelyn O'neil Brown

Ellard, 1440 Ginger Street,

Gardendale. Clerk at the Millinery

Supply Company in Birmingham.

Presently in good health.

B. Siblings:

Katherine Ellard Ankeny, age 37,

3713 Franklin Drive, Anniston; Judy

Ellard (Albert) Brown, age 35,

Gardendale. No brothers.

C. Offender:

1. Childhood: Ellard was born

in Birmingham, Jefferson County,

Alabama, and lived there all of

his life, with the exception of

the time he was in the military

101

service, and other short periods

of time. He attended local

schools and lacked 1/2 credit

graduating from Phillips High

School in Birmingham, when he

quit in 1965. After this he

worked various odd jobs and went

into service on January 17, 1968,

and reportedly was Honocably

Discharged, December 5, 1969.

His reported highest rank was

Specialist Pive. He served in

Thailand and Viet Nam

approximately 10 1/2 months.

2. Marital Status: Ellard has

been married two times. In

February of 1967 he married

Jennie Kirkland, a Birmingham

Girl. They were divorced in May

of 1970 in Jefferson County.

In April of 1971, he married

Brenda Darden McNail, age 23, a

Birmingham girl and divorced her

in July of 1971. Brenda, his

second wife, had one child by a

previous marriage. However,

subject and neither of his wives

had any children of their own.

2. Health: Ellard relates that he is in

excellent health and he appears to be.

There are no indications of any physical

difficulties. This individual always

held his composure, was very friendly,

maintained an excellent personality, was

not withdrawn or over-talkative. He

appeared to have average emotional

Stability and possibly was somewhat above

average intellectually.

102

3. Education: As previously stated,

Ellard lacked 1/2 credit completing high

school, however he subsequently obtained

high school equivalent in military

service and later attended Jefferson

State Junior College in Jefferson County

and the University of Alabama,

Birmingham. He had approximately two

years in both of these colleges (not

verified).

4. Employment History: This

individual's employment pattern is

somewhat blurred. Most of his work,

since finishing high school has been in

the military service, or part time work

while attending college. At the time of

this offense, he was working for a Reeves

Gulf Station on Highway 31, as a manager.

He had previously worked for a Nelco

Service Company and other part time jobs.

He has no trade or skill.

5. Economic Status: Ellard has nothing

of economic value other than his own

personal belongings.

CHURCH, CLUBS AND COMMUNITY ACTIVITIES:

Ellard has never belonged to any

religious organization. He has related

that he did have preference of Baptist

church. He has been a member of the

Gorgus Literary Society of Phillips High

School. Ellard reads a lot and is

somewhat talented artistically, as he

enjoys painting and drawing.

103

Factors Contributing to Offender's

Delinquency: Of course, this is

impossible to determine. There quite

probably is some collation of subject's

lack of sleep and rest. His continued

use Of amphetamines and alcoholic

beverages at and before the time of the

offense. He has however, had no previous

indication of any serious problems

relative to violence in his early life or

from the information that I have

available.

Due to the extreme serioucness of

these offenses I would highly suggest

that a more detailed report be compiled

by the Jefferson County Office relative

to past history, especially school,

previous offenses, employment, reputation

and associates, etc.

Dated this the 18th day of September

September, 1972.

/S/ FRANK M. FENDLEY

Frank M. Fendley

Oneonta Office

II

AT TIME OF SENTENCE REPORT, PART 2

November 7, 1972

( PRE-PAROLE )

zs ekeekekt

Form No. 2 Received

November 9, 1972

Probation & Parole

Office

PRELIMINARY

Pre-Parole At time of Sentence xx

Name Richard Mark Ellard

Number #105, 115 County Blount

Alias None Age, Race & Sex WM-26

Days in Jail

Offense Murder list Degree

Assault WI to Murder

Sentence Life/20 years

Judge L.P. Waid

Address 1440 Ginger Street

Gardendale, Alabama

Date of Conviction 5/9/72

LEGAL HISTORY:

1. Previous Offenses and Holdovers:

105

BIRMINGHAM PD 8-20-65 RD $25 Fine & CC

FULTONDALE PD 12-25-68 RSS $15 Fine & CC

PRESENT OFFENSE:

The Present Offense was submitted by the

Oneonta Office.

SOCIAL DATA:

FAMILY SITUATION:

Parents: Father, Ralph Odgen Ellard,

died in November of 1964. Mr. Ellard had

an excellent reputation in the New

Georgia area at the time of his death and

was a Foreman for a house moving company.

He died of lung cancer. Mother: Elaine

Oneil Brown Ellard, lives at 1440 Ginger

Street, Gardendale, Alabama. She is the

Owner and operator of the Millinery

Supply Company in North Birmingham. She

is presently in good health. Mrs. Ellard

Speaks very highly of Mark and states

that she was sure he was under the

influence of narcotics or was temporarily

insane when he committed the present

offense. Mrs. Ellard has an excellent

reputation in the New Georgia area and in

the vicinity of her home in Gardendale.

SIBLINGS:

Katherine Ellard Ankeny, age 37 lives at

3713 Franklin Drive, Anniston, Alabama.

Judy Ellard (Albert) Brown, age 35, lives

in Gardendale. She is a Dental

Technician Over on southside. Judy has

an excellent reputation as well as does

her husband Albert.

oe ee ns ST eee ee pee eee

SENN WHE PENSE TIN EE Sm

OF FENDER:

Ellard was born in Birmingham, Jefferson

County, Alabama, and has lived there all

his life with the exception of the time

he was in military service and other

short periods of time. Ellard was reared

in a six room frame house in the New

Georgia area by his parents. There was

no problems during his childhood.

MARITAL STATUS:

Eliard married Jennie Kirkland Ellard

Andrews February 10, 1967. They were

divorced May 7, 1970. The divorce was

granted to Mrs. Andrews under the grounds

of cruelty. No children were born to

this union. Mrs. Andrews does not feel

Ellard would be a threat to society.

Ellard would become violent if pushed too

far.

On April 5, 1971, Ellard married Brenda

Darden McNail, age 23, and divorced her

on July 23, 1971. Brenda had one child

by a previous marriage. She is presently

employed by Scott Supply Company,

Birmingham, Alabama, and lives at 619

llth Street Southwest. She stated Ellard

was a good husband and was no threat to

society.

11-9-72 M & DC

HEALTH:

Ellard is in good health both physically

and mentally. The mother of Ellard

stated Ellard was insane at the time of

the present offense or on drugs. She

States he never showed any sign of

insanity prior to the present offense.

107

EDUCATION:

Ellard liked one half a credit completing

Phillips High School in 1965. He had an

average there of a D+ or C-. After he

entered military service he obtained his

high school equivalency in the service.

He attended Jefferson State Junior

College, Jefferson County, for a period

of two years and was in his senior year

at the University of Alabama, Birmingham,

Alabama. While in Junior College he did

not apply himself to his limit. After

returning from service he made a lot

better grades at the University of

Alabama in Birmingham. No disciplinaries

were listed at Phillips High School.

EMPLOYMENT HISTORY:

Mr. Bice of Nesco Service Company, 3813

First Avenue North stated that Ellard

worked for him for a period of five years

off and on. He stated Ellard was an

exceptional employee and if and when

Ellard were paroled he would consider him

for re-employment.

Mc. ReeveS, Owner and operator of Reeve's

Gulf Service Station, Highway 31 North,

Birmingham, Alabama, reported Ellard .had

worked for him a good deal of time off

and on. He stated Ellard was an

excellent employee and he would gladly

rehire him if given a chance.

ECONOMIC STATUS:

Ellard owns nothing nor does he owe

anything.

108

ens

MILITARY STATUS:

Subject entered the United States Army on

January 18, 1968, and received an

Honorable Discharge on December 5, 1969.

He attained the rank of SP/5. His Army

Serial Number is US 53845679.

CHURCH, CLUBS AND COMMUNITY ACTIVITIES: _

According to Ellard's statement to Mr.

Fendley he does not belong to any

religious organizations. Elliard's mother

claims he belonged to the Mt. Carmel |

Baptist Church, New Georgia Community.

One of the elder's in the Mt. Carmel

Baptist Church, New Georgia, stated

Ellard and his family quit attending

their church and moved to another church

when Ellard was approximately 14 years of

age. There was no mention in the

Phillips High School records of Ellard

having been a member of the Gorgus

Literary Society. Ellard is talented as

an artist, still paintings.

REPUTATION AND COMMUNITY ATTITUDE:

Neighbors in the New Georgia Community or

in the immediate vicinity of 4913

Lewisburg Road, North Birmingham, stated

they could not understand how Ellard had

committed the crime he had committed.

They further stated that Ellard and his

family were quiet, reserved people and

did not associate much with anyone. One

of the church workers who had worked in

the Mt. Carmel Baptist Church with Ellard

until he was age 14 had this comment to

make, “he was quiet, sensitive and liked

pretty things." She stated he was an

Obedient child.

109

One person who had known Ellard from

childhood claimed he had masochistic

tendencies which were described by this

person as follows: "When he was a child

he would pull legs off of bugs." This

person is the only person out of ten

references in the New Georgia area who

knew Ellard who had anything to say of

this nature. When other references was

specifically asked about him having

sadistic tendacies, none of them stated

he had any tendencies of this sort. The

person who stated he had sadistic

tendencies volunteered his comments.

ZS/WINFRED O. SMITHSON

WINFRED O. SMITHSON

PAROLE AND PROBATION

SUPERVISOR

110

LP Ng ROSE ENT YF TRIE Te LM Tn Se re ee

Pes |

PAROLE APPRAISAL

December 8, 1980

(PRE-PAROLE )

2 2&2 © 2 ®

STATE OF ALABAMA

BOARD OF PARDONS AND PAROLES

Prison Holman

Set Date 2/81

Earliest Parole Date

Name Ellard, Richard Mark

Number 105115

ce. Blount

RSA WM-34

PAROLE PLAN: SSN 424-69-6671

Home: During interview, Ellard requested

that he be paroled to the Georgia

Department of Offender Rehabilitation.

Records indicate that Ellard will be

eligible for parole consideration in that

State during May, 1981.

Job:

Program Report Req. Date

lll

PENDING CASES:

HOLDOVERS: 1/24/78-Dept. of Offender

Rehabilitation, Atlanta, Georgia-Murder.

(Ellard has a Life sentence which was

Ordered to run concurrent with the

Alabama Life sentences.)

IPO APPRAISAL

Parole Recommended: Yes XX No

/S/THOMAS TARO 12/8/80

Signature Date

On 5/9/72 Ellard was sentenced to Life

plus 20 for Murder I and AIM.

On 12/29/77 Ellard was received at

Kilby after being recaptured from a

Draper escape which occurred on 5/31/77.

On 2/3/78 Ellard was transferred from

Kilby to Holman as a close custody

inmate. On 3/17/78 his custody was

ceduced from close to medium and he was

assigned to Holman population. On 5/1/78

he was approved for training in the

cabinet making school. Since that time,

Ellard has remained in the trade school

program and is described as an inmate

having a very good training and conduct

cecord, both in school and within the

prison compound. On 7/29/80 Ellard was

approved for IGT status. On 9/22/80

after graduating from the cabinet school,

Elleard was transferred into the

upholstry school for further training.

During interview, Ellard stated he is

serving his first prison term and has

never been on parole or probation. Rules

112

and regulations of parole were explained.

Ellard described himself as a cabinet

maker, due to learning this trade while

in prison. Ellard further stated that

prior to coming to prison he had

completed 3 years of college in the

Birmingham area.

Ellard appears to be in good health

standing 5'10" and weighing 155 lbs.

During interview, he exhibite@ a good

attitude and attempted to show a great

deal of remorse concerning the present

offenses for which he is presently

Serving. Ellard attempted to defend his

actions by stateing that at the time of

the present offense, he was taking both

amphetimines and drinking and does not

remember what happened. During this

interview, Ellard describes himself as

being totally drug free since being in

prison and states that he has not

received drug counseling and does not

feel it would be necessary for him to

continue his drug free activities. In

looking at Ellard's prison record, it

appears that he has been an exceptional

inmate except for his escape from the

Draper facility.

ee eS Wey nee * =m

DISCIPLINARY RECORD PAST TWO YEARS:

Disciplinaries:

ie Eta ip enzo Ly alee

ETRE Ll AIS SALON ph aah Se abt pith Song

5/31/77-Draper-Escape-Recap 12/28/77-Lost

18 months GT. (During interview, Ellard

Stated he was arrested in Pheonix,

Arizona, while attempting to use an

altered money order.)

3 nines Sia tae

: retea

5/16/80-10 months 2 days GT approved for

restoration by the commissioner.

113

WARDEN'S REPORT

Parole Recommended: Yes xX No

/S/C. E. JONES

Warden

REASON:

BOC

12-16

PB Focm 521, Rev. 3/80

114

IV

REPORT OF INVESTIGATION

APRIL 24, 1981

( POST-PAROLE )

‘ zx kerk

STATE BOARD OF PARDONS AND PAROLES

Montgomery, Alabama

pea eed SDP a ie

Received

April 28, 1981

2 State Board of

= Pardons and Parole

Name Richard Mark ELLARD

Number 105,115

County Blount

Alias None

Age, Race & Sex WM

Days in Jail

Offense Murder lst/Assault With Intent

to Murder

Sentence Life/20 yrs

Judge I. P. Waid

Address 1440 Ginger st., Gardendale Al

Date of Conviction 5-9-72

115

Atty.

D-A. Charles Robinson

SSN:

Drivers License State and Number

FBI No.

LEGAL HISTORY:

1. Previous Offenses and Holdovers:

In addition to the charges contained in

this report subject was sentenced to a

term of life imprisonment in Douglas

County Georgia for the offense of Murder

lst, said sentence to run concurrent with

the sentence in the cases detailed below.

For purposes of this investigation the

details in Blount County cases #9551

Murder lst and case #9553 Assault With

Intent to Murder have been combined:

DETAILS:

On 9-4-71 at approximately 1:00 a.m. two

white females, Charlotte Parks and Nancy

Conn, parked at a location between First

Avenue and Second Avenue North, llth

Street, Birmingham, Alabama. They had

pulled in next to a vehicle with a white

male inside. This man was parked on the

right side of the victim's car. Nancy

Conn who was on the passenger side stated

her window was rolled half way down. The

man later identified as Richard Mark

Ellard got out of his vehicle, walked

over to thier car and leaned in the

window and asked them did they know what

time it was. Ms. Conn states that she

116

es we tee. ee ©

answered no but that it was around 1:00.

He also asked were they going into that

morgue, referring to a night club. Ms.

Conn states that she answered in the

affirmative and that she then turned back

toward her companion, Charlotte Parks.

Ms. Conn states that as she did so Ellard

stuck a knife through the window and up

to her throat, telling her not to move or

he would cut her fucking off. Ms. Conn

states that after a moment or so the

subject got in the car beside her and

made Charlotte Parks lock her door, take

the keys out and put them in her purse.

Ellard then apparently took both purses.

After sitting in the car for a few

moments Ellard then forced the victims to

get into his car with all three in the

front seat. He started the vehicle and

after circling the office lounge in front

of which they had been parked several

times he proceeded North out of town on

Highway 31. Ms. Conn states that Ellard

made Charlotte Parks get down on the

floorboacd on the right side of the car

so she could not be seen.

When the vehicle had turned off the main

highway Ellard told Charlotte Parks to

undress which she did until she was

completely nude. After going down this

secondary paved road for a time Ellard

apparently turned off on a dirt road and

proceeded until he came to what Ms. Conn

states was an old mine shaft. Subject

turned into the shaft road and stopped in

a wooded area. At this point both Ms.

Conn and Parks were made to get out of

the car. At this time Ms. Conn states

that she pleaded with Ellard at this time

not to make her undress due to the fact

117

that she was having her period and

couldn't therefore, she only undress down

to her panties. Ms. Conn stated that

Ellard then made them go to the rear of

the car and either sit or stand beside

One another. Ms. Conn states that Ellard

kept calling Charlotte Parks blondie and

her mama. She states at this point

Ellard began playing with Charlotte

Parks’ breast and body and also told her

to play with Charlotte which she said she

was forced to do. This playing

apparently involved playing with

Charlotte Parks’ breast and vagina. Ms.

Conn states at this time the subject did

not talk a great deal other than to tell

her what to do. She states that at this

time he also made her perform oral sex on

him and continue to perform this oral sex

until she got sick. She states that once

She got sick he would then grab

Charlotte's head and forced Charlotte

down on him and make her perform the same

act until she got sick. Ms. Conn further

stated that this went on for a

considerable length of time. Ms. Conn

further stated that while the oral sex

was going on that Ellard made her place

her fingers in his rectum and much the

Same as he had forced her tc do to

Charlotte Parks. Ms. Conn further states

that following the oral intercourse which

both she and the victim, Parks, were

forced to perform that he then raped

Charlotte. The method of cape was that

Ms. Parks was required to get up on the

trunk of the car in such a position as to

be directly in front of Ellard while he

performed intercourse on her.

118

es

= 4 . ice

en —S ys ee ee

Ms. Conn states that while they were at

this first location that Ellard did not

undress and simply unzipped his pants in

the front. Following the assaults at

this location they were allowed to put

their clothes back on with the exception

of, in Ms. Conn's case her bra and panty

hose. After they were dressed again both

victims’ hands were tied behind their

backs and they were put back in the car

in the front seat. She further stated

that Charlotte parks had become somewhat

histerical at this time and that Ellard

Slapped her at least three or four times.

Ms. Conn also stated when interviewed

that during the thirty to forty minutes

that they were traveling this time that

Ellard forced her to perform oral sex on

him as they were driving down the

highway. After driving for the above

length of time Ms. Conn stated that they

pulled off on another highway for about

an hour then turned on to a dirt road and

stopped again in a wooded area. At this

time Ellard took both victims out of the

car, took all of his cloths off and again

sexually assaulted Charlotte Parks. She

stated that during all this time there

was little or no conversation on the part

of Ellard other than the fact that when

they were trying to plead eith him to let

them go and not to hurt_them, he

continually told them to shut up. Ms.

Conn states that following this latest

attack on Ms. Parks subject acted a

little bit more normal and seemed like he

was listening to their pleas to not hurt

them and let them go. She states,

however, that after seemingly thinking

about it for a few minutes he told them

that he had to get rid of them since if

he did no body would know who had none

119

it. At this time he began taking some

acticles out of the trunk of the car and

in preparation of making them get back

in. Ms. Conn states at this time she

memorized the tag number of the vehicle

which was 1A-46204. She states that it

was daylight and had been for some time

at this last location. Once back in the

vehicle subject apparenly rode around for

a short length of time after which he

Stopped and told them he was going to go

to sleep for a while. During the time

they were in the trunk this last time Ms.

Conn states the Charlotte Parks kept

chewing on the panty hose around her

hands until she had bitten them in two

and then she untied Ms. Conn. They

apparently rode around quite a while on

major highway and then again over some

bumpy roads and then he stopped and Ms.

Conn states she saw a little green hose

come through a hole in the trunk and the

car was started. She states that at this

time she pushed the hose back down the

hole. She states that after this Ellard

came back to the rear of the car and saw

the hose had falled to the ground, cursed

about that, then pushed the hose back up

in the hole. When Ms. Conn pushed it

back down again he apparently cut her

left index finger and small finger with a

knife. At this time the victim stated

that they tried to kick the back seat out

so they could get some air and at that

time Ellard came and unlocked the trunk

and took them out. She states that he

had changed clothes, at this time was

wearing a pair of faded ragged shorts and

a pair of sandles. As he took them out

of the car he had a what Ms Conn termed a

hugh stick in his hand and he began

beating her on the head with the stick.

After hitting her with the stick both

victims were then placed back in the

trunk and they began driving again. Ms.

Conn states that she passed out and that

the next thing she knew they had stopped

and he opened the trunk again and at this

time took her out of the car with

Charlotte holding on to her and pleading

for him not hurt them again. He pushed

Charlotte back into the trunk and closed

it. Ellard then carried the Conn victim

down to the small pond and held her head

under water until she passed out.

Investigation by the Sheriff's Department

of Blount County reveals that apparently

following the attempted drowning of Nancy

Conn subject was dragged to the edge of a

large dirt embankment and thrown over the

embankment by Ellard. In so far as can

be determined by Ms. Conn she thinks

this occurred at about 10:00 a.m. in the

morning. Ms. Conn laid in the location

Where she was thrown for the remainder of

Saturday and on into Sunday morning at

Which time she finally gained enough

strength to get back up the embankment

and move approximately eighty yards from

Where she had been thrown down the

embankment. At this time she was found

by a Mr. Earnest White who had come to

the old Strip mine area to dispose of

some garbage. ‘

In her interview with this officer and

her statement at the time of the offense

Ms. Conn stated that when she woke up she

was lying at the feet of the body of

Charlotte Parks who was dead at that

time. The exact time of death of

Charlotte Parks was not fixed in the

autopsy report, however, the autopsy

ceport is significant for a number of

points are as follows: With the

exception of lacerations or scratches

which could have been caused by rocks or

briars, there were a total of fifty-eight

lacerations or punctures on the victim's

chest, under her left breast, the nipple

of her right breast, the left flank of

the abdomen, and on both sides of the

neck, as well as a large number of

superficial lacerations across the middle

of the abdomen which varied from 3/8"

long to 3" long. The cause of death

according to postmortum examination was

the result of shock and hemorrage as well

as cardiac failure following several stab

wounds to the area of the left chest

which penitrated the heart and lungs. At

the time of this report no photographs,

if found, will be included in a followup

report.

It was also noted from the postmortum

that the victim's hair was missing except

for hair on her forelock and at the

temples. When Ms. Conn was interviewed

for purposes of the details above she

stated that Charlotte Parks had a full

head of hairc when she last saw her alive,

however, had been wearing a hairc peace.

Ms Conn was emphatic, however, in stating

that Charlotte had long blonde hair. It,

therefore, appears that the victim's hair

was either cut off or pulled out at some

during or after her death.

EVALUATION OF OFFENDER

PERSONAL HISTORY:

For information regarding subject's

personal history see at time of sentence

investigation dated 9-18-72 and at time

of sentence investigation prepared by the

Birmingham Office, date unknown. Most of

the information contained in that report

appears to be valid and current.

However, this officer obtained a copy of

a psychological report which was

performed on Ellard prior to his sentence

which is included as an enclosure to this

report. This psychological which I note

was not a vart of subject's parole board

file appears to contain some significant

background data regarding sexual deviancy

on the part of this inmate. In view of

the fact that the report is or will be

included in a final report, I will

include only exerpts. On 11-30-71 this

subject was admitted to Ward 9 East at

the Bryce Mental Hospital for the

purposes of a lunacy commission analysis.

It is noted that Ellard stated to the

doctor that the reason he was here was

because he had these moods which he said

he had at the time of his charges which

he described as depression. In the

interview Ellard admitted that dating

back to the time he was approximately

twenty-one years of age he had been

exposing himself to women and states this

gave him an excited feeling in his chest

which he stated to the doctor he was

unable to describe. This report goes on

to illustrate other points that Ellard

admitted such as masterbating in public,

exposing himself in public and peeping in

windows, etc. It is notable that inmate

admitted to the counseler at that time

that he had abducted these girls whom he

did not name in the interview and forced

them into his car and that he admitted to

having intercourse with the young pretty

one. He further stated that this did

lead to the thrill that he wanted in his

stomach and chest which he had described

as being pleasing to him in his previous

sexual deviances. Apparently, in an

effort to gratify this feeling in his

stomach and chest he had the girls

perform different acts on themselves and

had them to perform oral sex on him.

Ellard at that time admitted that this

didn't do anything for him and that he

tied them up, drove them around and had

them go through the same act again. This

seems to follow almost exactly the

statement made by the victim, Ms. Conn.

Most notably to this officer in reviewing

this report of psychological is a

statement on the last page which states

that "He (Ellard) does says that he feels

he has to perform more daring acts in

Order to get this feeling (the feeling in

his stomach and chest) and that he is

afraid of what he might do if had another

chance. Note: The parenthisis are mine

and are not a part of the quote. It-is

notable that the time subject was being

interviewed for this lunacy commission he

had previously victim Sandra D. Swisher

whom he apparently kidnapped from the

University of ALabama campus, Birmingham,

in June 1971 and whose body was

subsequently found near a reservoir in

Douglas County, Douglasville, Georgia on

11-15-71. It is also notable that from

what I have been able to learn about that

offense the victim died from stab wounds

and was disposed of near a reservior or

124

pond much the same as the two victims in

this case. Although this officer says no

claim to being a psychologist, there are

two sexual deviant terms which might

apply in this case. One is triolism

which is the sexual deviancy known as an

exhibitionist or a voyeurism as indicated

by the exposing himself, masterbating in

public and being a peeping tom. The

second term is a piquerist or a sexual

deviancy known as piquerism which

manifests itself by stabbing, maiming,

mutilating of victim. This deviaracy may

be indicated due to the number of stab

wounds and lacerations, the location of

laceration, i.e., the middle of the

chest, under the left breast, the nipple

of the right breast, the left flank of

the abdomen, the fact that the hair of

the head is missing in addition to a

large number of superficial lacerations

across the abdomen. ThesSe appear to be

indications that that might be the case

with Ellard. The point being that in my

opinion if such were the case based on

the psychological report, attached as an

enclosure, subject would probably pose a

high risk of recidivism.

Although during Ellard's 1977 Escape

from custody while confined at Draper

Prison this investigation has revealed no

clear indications that he did threaten

the victim, Nancy Conn. It does appear

that subject violated the law in a number

of ways which did not lead to his having

been charged with any offenses. Although

Ellard in so far as I can determine did

not escape with a fellow prisoner the

prisoner Eddie D. Anderson interviewed at

Mt. Meggs by this officer stated that he

was contacted on Ellard's behalf in an

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effort to obtain a pistol. It does

appear that Ellard must have obtained a

pistol from some source as he was

according to sources in the Hattiesburg,

Mississippi area involved in using a gun

in attempt to make a truck driver, Mr. A.

L. Saucier, take him to I-59 which is

Hattiesburg, Lamar County, Mississippi.

This attempt was unsuccessful as Mr.

Saucier according to newspaper accounts

refused to do what Eilard told him to do,

drove into a driveway and stopped at

which time Ellard apparently panicked,

got out of the vehicle and ran. tft also

appears evident from police reports and

accounts of Ellard‘'s escape during 1977

that he stole a 1972 Datson V210

automobile belonging to one Greggory

Yestadt- with whome he had been staying in

Mississippi. It is notable that Mr.

Yestadt was charged by Mississippi

authorities with Harboring a Fugitive,

however, disposition of those charges are

unknown. There were apparently no

charges of auto theft filed against

Ellard in this case as the vehicle in

question was recovered at 929 Valley

Ridge Drive by Birmingham Police Sgt. Al

Wallace. Information reveals that police

were told where to find this vehicle by

one Sheldon Perhase a local attorney who

refused to say how he had learned of the

car's whereabouts. In view of the fact

that none of the information detailed

above was contained in subject's Parole

Board file, it is felt this information

is such that although not charged with

any new offense while on escape the

circumstances are such that there appears

to be little doubt Ellard did violate the

law during the time he was on escape and

these actions coupled with his past

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history would tend to place his overall

prognosis and suitability for parole in

doubt.

It should be noted that a thorough review

of subject's present file both

institutional and Central Records file

reveals no adverse comments from

Department of Corrections personnel other

than one from John Nagle referring to the

holdover in effect by the Georgia

authorities. There is a memo in the file

that there are some charges (apparently

eluding to the severity of his offense)

which should be considered in determining

his suitability for IGT. Note: This is

also not in his Parole Board file but is

in his prison jacket. There are numerous

reconmendations from Department of

Correction officials that Ellard be

granted IGT and atesting to the fact that

he had been a model prisoner. On the

surface it appears that his file was not

significant when conpared with other

files I have seen regarding Murders

serving time. It also appears that

neither his prison jacket nor his Central

Records file makes any great emphasis on

the fact that inmate was a convicted sex

offender with a serious sexual offense to

his credit. This report reflects the

status of subject's investigation up to

this point. Any additional information

received will be added as a supplement.

Signed and dated at Talladega, AL, on the

twenty-fourth of April 1981.

127

/ZS/WALTER B. SMITH

WALTER B. SMITH

PROBATION AND PAROLE OFFICER

PB Form No. 1ll

128

PRELIMINARY PAROLE REVOCATION

HEARING

( POST-PAROLE )

x & & &

MAY 14, 1982

STATE BOARD OF PARDONS AND PAROLES

Montgomery, Alabama

INTEROFFICE COMMUNICATION

DATE: May 14, 1982

TO: The Board

FROM: Kenneth Law - Troy District

Supervisor

IN RE: Richard Mark Ellard

# 105,115

Blount County

Preliminary Parole Revocation Hearing

On May 1l, 1982, a preliminary parole

revocation hearing was held for Richard

Mark Ellard, #105,115, at Kilby

Correctional Facility, Montgomery,

Alabama. This defendant was represented

by legal counsel Ralph Knowles and Ira

Burnim. Prior notice of the charges and

of the date for the hearing had been

129

given to the defendant and his attorneys.

At the beginning of this hearing, the

hearing officer explained the purposes of

the hearing. They are: 1. to determine

whether or not probable cause existed in

the charges. In that the hearing would

be held in accordance with Morrissey v.

Brewer, 408-US-471, the minimum

requirements for revoking paroles were

read to the defendant. They are (a)

written notice of the claimed parole

violations; (b) disclosure to the parolee

of evidence against him; (c) opportunity

to be heard in person and to present

witnesses and documentary evidence; (4d)

the right to confront and cross-examine

adverse witnesses (unless the hearing

officer specificaily finds good cause for

not allowing confrontation); (e) a

neutral and detached hearing body such as

a traditional parole board, members of

which need not be judicial officers or

lawyers; and (f) a written statement by

the fact finders as to the evidence

relied on and reasons for revoking

parole. It was then explained that this

was not a hearing to determine his guilt

Or innocence and that the Parole Board

was not bound by my findings and

recommendation. It was also explained

that points that I might not have covered

at this hearing might be covered at the

later hearing.

You are Richard Mark Ellard, #105, 115.

This subject acknowledged that he was

Mack Ellard, #105, 115. On September 5,

1971, you were arrested by the Blount

County, Alabama, authorities and charged

with the offense of Murder lst Degree and

Assault to Murder. On May 9, 1972,

130

El

represented by legal counsel, you entered

a plea of guilty in the Circuit Court of

Blount County, Alabama, to Case #9551,

Murder lst Degree, at which time you

received a life sentence in the

penitentiary and Case #9553, Assault to

Murder, at which time you received a

sentence of 20 years in the

penitentiary.

On March 26, 1976, the records indicate

that you entered a plea of guilty to a

charge of Murder in the Douglas Superior

Court, Georgia, at which time you

received a life sentence.

On March 2, 1981, the Alabama Board of

Pardons and Paroles granted you parole to

a detainer from the State of Georgia.

You have been in the custody of either

Alabama or the Georgia authorities since

the date of your parole.

At this time the defendant's attorney,

Mr. Burnim, objected to the use of the

phrase “parole to a detainer”™ stating

that the word detainer should not be

used. I overruled this objection.

On April 16, 1981, the Alabama Board of

Pardons and Paroles, through its

Executive Director, David H. Williams,

requested the Attorney General of Alabama

to render an official opinion of whether

Or not the Parole Board had the power and

authority to rescind, revoke, nullify and

void a grant of parole which had been

legally issued and executed in favor of a

detainer warrant from another

jurisdiction but prior to actual release

131

of the prisoner from prison custody of

the community. (See exhibit #1.)

On April 17, 1981, the Alabama Attorney

General issued his opinion in the

affircmative (See exhibit #2).

On April 17, 1981, the Alabama Parole

Board declared you delinquent as a

technical violator under privisions of

parole condition #8 (See exhibit #4).

At this time the hearing officer made it

known to the defendant and his attorneys

that there were several charges or

allegations in the Notice of Parole

Violation that I would not try to cover

at this hearing. They were Item 2, Sec.

C, D, and E of Exhibit #4.

At this time Mr. Burnim made it known

that he would like to make several

motions to the hearing officer. His

first motion was to sequest the

witnesses. This motion was granted. Mr.

Knowles then questioned the subpoenaing

power of the Parole Board and hearing

officer. I explained to him we did not

have this power. He then objected to the

use of any hearsay evidence in the first

degree would be allowed. He then

objected to the Attorney General's

opinion of April 17, 1981, stating that

it was unconstitutional. This was

overruled at which time he introduced

exhibit #5 which was a motion to dismiss

proceedings. The hearing officer

explained to Mr. Knowles that he was not

qualified to rule on motions of this type

in a court of law was the vehicle for

132

————=_=_ ©.

this procedure. However, I made note of

his objections for the record.

Before going further with the hearing,

the hearing officer was asked by Mr.

Knowles what was the purpose of the

hearing or what was the hearing officer

looking for from the witness. I

explained to him that I would be looking

for any new or additional information not

available to the Parole Board at the time

of parole on March 2, 1981, that might

have a bearing on the outcome of this

parole had it been available to the

Board.

Prior to taking any further testimony, I

introduced Exhibit #3, a certificate of

Parole dated March 2, 1981,-which was

signed by Mr. Ellard, witnessed by J. D.

White, Assistant Warden at Staton Prison

dated February 27, 1981. This

Certificate of Parole contained the

conditions under which parole was

granted. Mr. Ellard acknowledged his

signature and the receipt of his copy of

this certificate.

The first witness was Mr. Elmo Graves,

Assistant Director, Board of Pardons and

Paroles. His testimony was for the

record and he testified that on April 2,

1982, he had visited Kilby Correctional

Pacility where he advised the defendant

of the charges against him and of his

rights. At that time the defendant

requested a pre-parole revocation

hearing. The hearing at the defendant's

request, was set for May 5, 1982, to

enable him to employ counsel. This

Pee oar be is reflected in Exhibit #4. The

defendant's attorneys then questioned Mr.

133

Graves in regards as to who initiated or

contacted Probation Officer Walt Smith to

complete the investigation after April

16, 1981, at which time Mr. Graves stated

that as Supervisor of Field Operations

for the State Board of Pardons and

Paroles, he contacted Mr. Smith.

At that time I again read from the record

as follows: On April 8, 1982, Mr.

Ellard, you requested, by letter that the

Parole Board pay the expenses of an

attorney, of your choice, to represent

you. On April 19, 1982, you were

notified by mail that the Board would be.

unable to employ an attorney of your

choice. Later, at your attorney's

request, this hearing was continued until

May 11, 1982, at 9:00 A.M., to be held in

the Kilby Institution.

The second witness, Mr. Walt Smith,

Probation Officer from Talladega,

Alabama, testified that after he had been

contacted by the Parole Board, he visited

Birmingham where he talked with Mrs.

Conn, the victim. He stated in essence

that Mrs. Conn informed him that she had

no direct evidence of Ellard stalking her

Other than things she had been told. Mr.

Smith then stated that he visited Blount

County where he talked with an informant

who had been assigned to the same cell

with Mr. Ellard in 1971. This informant

stated that Ellard had made threats

against the victim and that Ellard had

offered him $500.00 to do away with the

victim. Mr. Smith stated that this was a

reliable informant that had been used on

Other occasions. Mr. Smith also

testified that he had received reports

from law enforcement officers and

134

citizens in that area protesting the

parole of Ellard. The exact date of the

escape in 1971 was not known; however,

the defendant's attorneys acknowledged

that there had been an escape and that on

the following day Mr. Ellard had been

turned in by his attorney.

Before getting into the area of

additional evidence in regards to the

seriousness of the crime this subject's

attorney made it known that if the

evidence Mr. Smith gave was to be the

same as his report of 4/24/81 he would

submit this report for the record. This

report was submitted marked Exhibit #6.

It was admitted that this report will

contain information outlining details of

the offense that were not contained in

the preliminary investigation in March,

1972.

Mc. David H. Williams, Executive

Director, Board of Pardons and Paroles,

then testified that the Parole Board file

contained extensive protests that were

received after this individual's parole

of March 2, 1981. He further stated that

the Board had received numberous

complaints from the Attorney General

since that time. He also stated that the

Board had received a censure by the House

of Representatives of the State

Legislature. He then stated there were

numerous newspaper articles contained in

the file reflecting protest of this

parole.

At that time the defendant's attorneys

were asked did they wish to have any

witnesses. There were no witnesses;

however, they introduced Exhibits #7, #8,

135

#9, #10, #11, #12, #13, #14, and #15 for

the record. The substance of these

exhibits were reflected on the

individual's progress while in prison

prior to parole. The attorneys

emphasized that other than his escape in

1977, Ellard's prison record was good.

They also brought out that he was

cecommended for parole by the warden and

the institutional parole officer. It is

my understanding that these exhibits were

introduced to reflect that the parole

hearing had been conducted in accordance

with the law.

FINDINGS:

The purpose of this hearing was not to

determine the legality or

constitutionality of the return of Mr.

Ellard to the State of Alabama. It was

to insure due process and to determine

whether or not the evidence in this case

presented probable cause to the hearing

officer.

After hearing the testimony of the

witnesses and examining the evidence

submitted it is the hearing officer's

opinion that sufficient probable cause

exists to refer this case to the Parole

Board for further consideration. I find

probable cause in Sections l, 2, 2-a, 3,

3-a, 3-b, 3-c, 4, 4-a, 4-b, 4-c, 4-d, and

4-e of Exhibit #4.

Sections 2-c, 2-d, 2-e, and 3-d were not

examined at this hearing. This does not

indicate that no probable cause exists

but that, for-the purposes of this

hearing, these areas were not examined.

Section 2-d was considered as a part of

136

the overall evidence that has been noted

in the file.

Done this the 14th day of May, 1981, in

Troy, Alabama.

/S/ KENNETH LAW

KENNETH LAW

District Supervisor |.

State Parole & Probation Offices

209 County Court Hous

Troy, Alabama 36081

137

CERTIFICATE OF SERVICE

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

Assistant Attorney General of Alabama, do

hereby certify that I am a 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 the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 261 7300

138