# Appendix — Alabama Board of Pardons & Paroles v. Ellard

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 981

## Text

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

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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

125

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

126

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0443%3A2. Public record. Not legal advice.