# Opposition Brief — Shoemaker v. Kellogg

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 907

## Text

NO. 94-1964

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

JOHN W. SHOEMAKER, ET AL.,
Petitioners,

Vv.

GLENN S. KELLOGG; LANI R. SMITH; JOHN STAMPER;
LAWRENCE DESSENBERG; ROBERT DONLEY; MICHAEL JONES;
MICHAEL KARHOFF; DANIEL SCHREIBER,
on behalf of themselves
and all others similarly situated,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

DAVID H. BODIKER #0016590
State Public Defender

THOMAS R. WETTERER, JR. #0020980
/ ssistant State Public Defender
Counsel of Record

KENNETH R. SPIERT # 0038804
Assistant State Public Defender

Ohio Public Defender Commission
8 East Long Street - 11th floor
Columbus, Ohio 43215

(614) 466-5394

COUNSEL FOR RESPONDENTS

TABLE OF CONTENTS
PAGE NUMBER
RA REE, AME NIUE OIE akeinie ce kadnpe sosindcusursids varudasedseieseantinmtgsedsteitanidnbédaneuimbainaentbuvepite ii
PETITIONERS’ QUESTIONS PRESENTED FOR REVIEW ................:cscssssssesressssesseseees 2
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Pees Fre Gre Te CEI WHERE prrisiccnesnevnsesescsacinncackeanruepbaubolicssarsengineashateseosaninnl 10
a sien das ccna ss cated nadadhi ten However, the Sixth Circuit Court of Appeals
granted partial relief on the basis of Respondents’ ex post facto claim.* The court

identified a subclass against which the new rule could not be applied, i.e., those mem-

? See § 5120:1-1-21 of the Ohio Administrative Code ("O.A.C. § 5120:1-1-21"), reproduced in the Appendix
at A-30. The Sixth Circuit Court of Appeals determined that the effective date of the rule is September 1,
1992. Further, effective October 6, 1994, Petitioners also amended § 2967.15 of the Ohio Revised Code
(“O.R.C. § 2967.15"), the statute governing parole revocations in Ohio. O.R.C. § 2967.15(B) now denies
the right to a parole revocation hearing to any “parolee, furloughee, or other releasee who is convicted of
or pleads guilty to any offense committed while on parole, furlough, or other release”. O.R.C. § 2967.15(B)
is reproduced in the Appendix at A-31.

* Respondents have filed a petition for writ of certiorari in Case No. 94-9509 challenging the resolution of
the due process issue.

“The court did not specifically address the effect of the recent amendment to O.R.C. } 2967.15 (B). See
section |, A, 2, infra, as to the prejudicial impact of this amendment on parolees in Ohio.

Z.

bers of the class whose initial offenses were committed prior to the effective date of the
new rule and whose parole is subject to revocation under the new rule.

On February 28, 1995, the Sixth Circuit Court of Appeals issued an order revis-
ing its January 9, 1995 opinion by striking certain language.” This order also denied
the parties’ petitions for rehearing.® The mandate issued on March 8, 1995. The Dis-
trict Court entered its order executing the mandate on March 22, 1995. Respondents
moved to alter to amend this order on April 3, 1995 and said motion is pending before
the court. On May 3, 1995, Petitioners filed a motion for relief from judgment to deter-
mine the effect of this Court’s decision in Califomia Department of Corrections v. Mo-
rales, _US.___, 115 S.Ct. 1597 (1995), upon the Sixth Circuit’s mandate herein.
This motion is also pending before the District Court.

B. CLARIFICATION OF MISLEADING PORTIONS OF PETITIONERS’ STATEMENT OF THE CASE.

Petitioners’ Statement of the Case is misleading in the following respects. First,

Petitioners state that the Sixth Circuit Court of Appeals sustained the mootness finding

* Thus, the opinion appearing at A-1 of Petitioners’ petition does not refiect the final version of the court's
opinion. See the published opinion reproduced herein at A-1.

* Respondents’ petition for rehearing beseeched the court to address specifically their Challenge to the due
process rationale utilized by the District Court and the Court of Appeals. Respondents also requested a
ruling on a res judicata issue which was briefed but neither addressed nor resolved by the court’s January
9, 1995 opinion. The due process issue is the subject of Respondents’ petition for writ of certiorari in Case
No. 94-9509

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as to the entire class. Petition, 4. This is not so. The conclusion that the new rule may

not be applied against the identified subclass means that the new law is a nullity as to

that subclass. The original claims of the identified subclass cannot be rendered moot

by a nullity. Their claims present a live controversy; otherwise, the Sixth Circuit's man-
| date granting the subclass declaratory and prospective injunctive relief would be
| meaningless.

Second, Petitioners devote three paragraphs of their petition to the fact that the
conclusion of the January 9, 1995 opinion contained a phrase (“and also a parole viola-
tion offense conviction”) which was entirely inconsistent with the rationale and language
of the court’s ex post facto discussion in the body of the opinion, i.e., part Ill, C of the
opinion. Petition, 4-5. Petitioners thereby suggest that the court, itself, was confused as
to its holding and its reasons therefor. This characterization is wholly inaccurate and
misleading. The phrase in question appears nowhere in the text of part Ill, C of the
opinion. Kellogg v. Shoemaker, 46 F.3d 503, 509-10 (6th Cir. 1995). Nothing in the
court's ex post facto discussion suggests that the date of the violation conviction is
relevant to the ex post facto analysis in any way. In fact, the only mention of the sub-
sequent violation offense in the court’s opinion is in the context of clarifying that the
date of the initial crime, rather than the violation, is the critical date for ex post facto
purposes. Kellogg, 46 F.3d at, 510, n. 6. The inclusion of the phrase in the conclusion
of the opinion was clearly anomalous and mistaken. The court recognized this fact in
its February 28, 1995 Order when it corrected the mistake while, at the same time, it

rejected Petitioners’ plea to revisit this issue on rehearing.

As to the February 28, 1995 Order denying the petitions for rehearing, Petition-

ers criticize the court because it “declined to elaborate further on its ex post facto
analysis.” Petition, 5. This criticism is unfair because it erroneously implies that there
was a need to elaborate on the ex post facto analysis in the January 9, 1995 opinion.
Part Ill, C of the opinion, however, is unambiguous and requires no further elaboration.
Moreover, it is unfair for Petitioners to criticize the court’s refusal to countenance Peti-
tioners’ attempt to exploit the incongruity in the conclusion of the opinion so as to allow
Petitioners to revisit on rehearing an issue which had already been fully briefed, argued,
and resolved. Petitioners’ petition for rehearing consisted solely of arguments which
had already been made in their merit brief. Accordingly, there was no reason for the
court to elaborate on its ex post facto analysis.

Third, the petition omits any reference to Petitioners’ amendment of O.R.C. §
2967.15, effective October 4, 1994. As amended, O.R.C. § 2967.15(B) deprives any
parolee of the right to a revocation hearing where the parolee has been “convicted of or
pleads guilty to any offense committed while on parole” (emphasis added). This new
statute is much broader than O.A.C. § 5120:1-1-21, which mandates summary revoca-
tion only for parolees who are convicted of an offense which requires sentencing the
parolee to Petitioners’ custody, i.e., a felony conviction.

The new statute requires Petitioners to summarily revoke parole even for minor
misdemeanor offenses committed while on parole. A conviction, for example, for violat-
ing a municipal ordinance prohibiting spitting on a sidewalk must result in returning the
parolee to prison and revoking his or her parole without a hearing. Throughout the

history of the Ohio parole system, traffic and misdemeanor offenses have been treated,

-8-

at most, as technical parole violations.’ Persons charged with technical parole viola-

tions have always been entitled to the rights enumerated in Morrissey, 408 U.S. 471,
and its progeny. Only persons convicted of felonies committed while on parole were
subject to the PVR revocation process. See former O.A.C. § 5120:1-1-19(A). Thus,
O.R.C. § 2967.15(B) fundamentally alters the parole revocation system in Ohio.’ The
critical point for the purposes of the instant petition is that, under the ex post facto
analysis proposed by Petitioners, all parolees convicted of minor misdemeanor offenses
while on parole must be returned to prison and must have their paroles revoked with-
out a hearing regardless of whether their initial offense was committed prior to the ef-

fective date of the new statute.

’ Prior to the amendr it, a parolee’s supervising officer normally would not treat traffic and minor misde-
meanor offenses as violations warranting revocation. Rather, the officer would impose lesser sanctions
involving closer supervision of the parolee.

® Respondents advised the Sixth Circuit Court of Appeals of the amendment of O.R.C. § 2967.15 in their
“Additional Citation.” The court did not mention the new statute in its opinion. While the Sixth Circuit Court
of Appeals did not address the effect of the new statute on the instant litigation, there is no doubt but that
application of the rationale in the court's January 9, 1995 decision to the new statute would result in a
finding that retrospective application of the new statute would violate the Ex Post Facto Clause.

-9-

REASONS FOR DENYING THE WRIT

l. |THE GROUNDS SET FORTH IN THE PETITION ARE INSUFFICIENT TO WAR-
RANT GRANTING A WRIT OF CERTIORARI. THE DECISION BELOW IS
CONSISTENT WITH THIS COURT’S DECISION IN CALIFORNIA DEPARTMENT
OF CORRECTIONS V. MORALES, ___ U.S. , 115 S.Ct. 1597 (1995). THUS,
GRANTING THE PETITION AND REMANDING FOR FURTHER CC.!SIDERA-
TION IN LIGHT OF MORALES IS UNWARRANTED.

The questions presented for review in the petition fail to state sufficient grounds
to warrant this Court's exercise of its jurisdiction.* At bottom, Petitioners’ claims can be
reduced to two assertions: (1) in their first question presented for review, Petitioners
assert that the Sixth Circuit Court of Appeals failed to follow the ex post facto analysis
set forth in Collins v. Youngblood, 497 U.S. 37 (1990); and Califormia Department of
Corrections v. Morales, _ U.S. __, 115 S.Ct. 1597 (1995); and (2) in their second
question presented for review, Petitioners argue they should be permitted to revive a
defense which the District Court rejected as specious, which Petitioners waived by fail-
ing to cross-appeal, and which the Sixth Circuit had no opportunity to review due to
Petitioners’ waiver. As demonstrated below, both of these assertions are groundless
and fail to warrant this Court’s granting the writ of certiorari.

Preliminarily, it is noteworthy that Petitioners waived several opportunities to en-
sure that the Sixth Circuit Court of Appeals would have the benefit of this Court's reso-

lution of Morales, 115 S.Ct. 1597, when it decided this case. On October 12, 1994, Re-

spondents filed their “Additional Citation” in which they advised the Sixth Circuit Court of

* Petitioners do not assert that this case presents an issue on which there is a conflict among the circuits
Nor do they assert that there is a conflict between the decision below and that of any state court of last
resort. Petitioners do not, and cannot, aliege that the case involves a question which has not been re-
solved by this Court. Petitioners likewise do not atternpt to demonstrate that the proceedings before the
Sixth Circuit Court of Appeals were such that they warrant the exercise of this Court's supervisory jurisdic-
Jon

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Appeals and Petitioners that this Court had recently granted review in Morales, id

Moreover, Respondents’ counsel raised the matter at oral argument before the Sixth
Circuit and the court entertained a brief colloquy on Morales during Respondents’ ar-
gument. At no time did Petitioners move for a stay pending this Court's decision in Mo-
rales. Nor did Petitioners move the Court of Appeals to recall the mandate after this
Court rendered the Morales decision. The fact that the court decided this case without
sua sponte ordering a stay, coupled with Petitioners’ failure to request a stay, indicates
that-+the parties and the court unanimously concluded that the issues in Morales are
easily distinguishable from those in the instant case. Certainly, Petitioners’ inaction in
the face of the proceedings in Morales speaks louder than the belated pleas in their
petition before this Court.

Respondents demonstrate below that the decision of the Sixth Circuit is consis-
tent with the analysis applied by this Court in Morales. Application of the new rule ret-
rospectively to members of the identified subclass” will result in the effect prohibited by

the Ex Post Facto Clause, i.e., it will increase the time spent in prison on the initial

"The term “identified subclass” refers to the subclass of the plaintiff class against whom the Sixth Circuit
Court of Appeals determined application of the new rule is barred by the Ex Post Facto Clause. The sub-
class consists of those class members whose initial crimes were committed before the effective date of
the rule and who are subject to parole revocation under the rule. See Kellogg v. Shoemaker, 46 F.3d 503,
509-10 (1995)

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crime’ where the sentence for the new offense is stayed, suspended, modified, va-

cated, or has expired. Petitioners’ contrived readings of the opinion below and of this

Court’s decision in Morales are unavailing. There is, then, no reason justifying a grant

of certiorari and referral back.

A. THE STATUTE AT ISSUE IN MORALES, 115 S.CT. 1597, IS SUBSTANTIVELY DIFFERENT
FROM THAT IN THE INSTANT CASE. ACCORDINGLY, MORALES |S INAPPOSITE AND DOES
NOT WARRANT GRANTING REVIEW OR REMAND.

The most critical distinction between Morales, 115 S.Ct. 1597, and the instant
case consists in the differences between the statutes scrutinized therein. Morales in-
volved an amendment to a statute governing the frequency with which a very limited
class of inmates is permitted to appear before the parole board, after the initial parole
suitability hearing, for a determination whether the inmate is suitable for release prole."”
The Court repeatedly emphasized that the statute did not modify “the standards for fix-
ing a prisoner's initial date of ‘eligibility’ for parole”, and that it did not modify the stan-
dards for determining an inmate’s “‘suitability’ for parole and setting his release date”.
Morales, id. at 1602. See also id. at 1602 (the statute “simply ‘alters the method to be
followed’ in fixing a parole release date under identical substantive standards.”); and id.

at 1604 (“The amendment has no effect on the date of any prisoner's initial parole suit-

ability hearing; it affects the timing only of subsequent hearings.”).

"The term “initial crime” is a term of art which the Sixth Circuit Court of Appeals used to refer to “the
crime from which the inmate has been paroled. It does not refer to the subsequent violation while on pa-
role.” Kellogg, 46 F.3d at 510, n. 6.

"7 In an effort to convince this Court to grant review, Petitioners distort the analysis and result in Morales.
For example, Petitioners describe Morales as reviewing a statute which modified parole eligibility stan-
dards. See section |, A, 1, infra.

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The crucial consideration in this Court’s analysis was whether the “amendment

will have any effect on any prisoner’s actual term of confinement.” Morales, id. at 1604:
also, see id. at 1605 (“Such a prisoner's ultimate date of release would be entirely unaf-
fected by the change in the timing of suitability hearings.”); and id. at 1602, n. 3 (“After
Collins [v. Youngblood, 497 U.S. 37, (1990),] the focus of the ex post facto inquiry is ***
on whether any such change *** increases the penalty by which a crime is punish-
able.”). Since the amendment merely altered the method to be followed in establishing
a release date, but did not modify the substantive standards for establishing that re-
lease date, the Court concluded that retrospective application of the amendment was
not barred by the Ex Post Facto Clause. /d. at 1602.

O.A.C. § 5120:1-1-21 differs from the amendment at issue in Morales in the fol-
lowing important respects. First, O.A.C. § 5120:1-1-21 regulates parole revocation pro-
ceedings rather than parole release suitability proceedings. The decision to revoke pa-
role directly implicates the concerns behind the Ex Post Facto Clause because it
amounts to imposition of additional punishment for the initial crime. Second, O.A.C. §
5120:1-1-21 will have the direct and immediate effect of increasing the actual terms of
confinement for some members of the identified subclass. Finally, enactment of O.A.C.
§ 5120:1-1-21 modified the substantive standards for determining whether parole should
be revoked. These distinguishing features not only demonstrate why the Sixth Circuit
Court of Appeals found an ex post facto violation in this case, but also that this conclu-

sion is consistent with Morales.

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1. UNLIKE THE AMENDMENT AT ISSUE IN MORALES, 115 S.CT. 1597, O.A.C. § 5120:1-1-
21 INVOLVES THE DECISION TO REVOKE PAROLE AND IMPOSE ADDITIONAL CONFINEMENT
FOR THE INITIAL OFFENSE. THIS DETERMINATION DIRECTLY IMPLICATES THE CONCERNS
EMBODIED IN THE Ex Post FACTO CLAUSE AS CONSTRUED IN MORALES.

As a point of departure, it is vital to recognize that the decision to revoke parole
constitutes the imposition of additional punishment for the initial crime. This is patently
clear in the technical parole violation context. It is equally true in the PVR context,
notwithstanding that a new sentence has been imposed. The new sentence punishes
the new criminal conduct and is not coextensive with the parole revocation. As the Dis-
trict Court held, “Moreover, Moody v. Daggett, 429 U.S. 78 (1976), made clear that a
parolee’s incarceration on an entirely new charge is not coextensive with the revocation
of his parole.”** May 27, 1993 Opinion and Order, 7. The confinement for the parole
violation is independent of the new sentence. If the new sentence is terminated in
some way, as demonstrated in section |, A, 2, infra, the revocation decision will prevent
the parolee’s release.

The decision to revoke parole entails two components. The first component is
the revoking authority's decision to re-confine the parolee to an additional term of im-
prisonment on the initial crime because of the parole violation. The second component
is the revoking authority's determination of how much additional confinement for the ini-
tial crime is warranted by the parole violation. In other words, the parole revocation
decision amounts precisely to the imposition of additional punishment for the initial
crime, the key factor in the ex post facto analysis in Morales, 115 S.Ct. 1597. This

feature was lacking in the amendment at issue in Morales. Presumptively, a law which

"? Petitioners did not appeal this adverse determination and have waived any Challenge thereto

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mandates the imposition of an additional prison term in parole revocation proceedings

is far more likely to implicate the concerns behind the Ex Post Facto Clause than a
statute which merely modifies the frequency with which an inmate is considered for pa-
role release suitability.
In this regard, the Petition consistently mischaracterizes the amendment re-
viewed in Morales. Petitioners repeatedly assert that the statute in Morales modified
parole eligibility standards and that Morales clarified the ex post facto implications of
such changes. Petitioners then erroneously equate parole eligibility proceedings with
parole revocation proceedings for ex post facto purposes. Referring to Morales, id. at
1602, n. 3, Petitioners state:
Accordingly, the Court discredited totally the premise that a
change in parole eligibility rules, by virtue of a possible ef-
fect upon the prisoner’s opportunity for early release, should
be equated ipso facto with a retrospective increase in pun-
ishment prohibited by the ex post facto clause. (Emphasis
added.)

Petition, 9."

As indicated above, the amendment reviewed in Morales had nothing to do with
the standards for establishing parole eligibility. While the amendment changed the pro-
cedures for determining an inmate’s suitability for release, it left untouched the stan-

dards for becoming eligible for parole. The statute did not retroactively terminate a

prisoner's parole eligibility, it only reduced the frequency of suitability hearings. This

“ See also Petition, 11 (“As the Court made clear in Morales, a change in parole eligibility rules cannot
be considered ipso facto to effect an increase in punishment for the purposes of the ex post facto clause.”
(emphasis added)); and Petition, 13 (“Unlike parole eligibility rules, a change in parole revocation proce-
dures cannot in any way increase the amount of time an inmate must serve before obtaining release on
parole.” (emphasis added)).

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Court carefully pointed out at several points in its decision that the case does not in-

volve a change in parole eligibility. Morales, id. at 1602 (“The amendment had no effect

ree

on the standards for fixing a prisoner's initial date of eligibility for parole, or for de-

termining his ‘suitability’ for parole and setting his release date *** .”); and id. at 1604.
Petitioners overlook the significant, substantive difference between parole eligi-

bility and suitability for release on parole. Serious ex post facto implications attach to

changes in parole eligibility matters. Warden v. Marrero, 417 U.S. 653, 663 (1974).

These implications were not addressed in Morales, notwithstanding Petitioners’ asser-

tions otherwise. Even more serious ex post facto implications attach to modifications in

parole revocation proceedings, because revocation of parole constitutes imposition of
additional punishment for the initial crime. Morales clearly does not address these
more serious issues.

2. O.A.C. § 5120:1-1-21 WILL HAVE THE DIRECT AND IMMEDIATE EFFECT OF INCREASING
THE ACTUAL TERMS OF CONFINEMENT FOR SOME MEMBERS OF THE IDENTIFIED SUBCLASS,
UNLIKE THE AMENDMENT AT ISSUE IN MORALES, 115 S.CT. 1597.

As indicated supra, the crucial fact for ex post facto purposes under Morales,

115 S.Ct. 1597, and Collins, 497 U.S. 37, is whether the new law will have any effect on

any prisoner's actual term of confinement. Morales, id. at 1602, n. 3, 1604, and 1605.

O.A.C. § 5120:1-1-21, when applied retrospectively, unquestionably will have the direct

and immediate effect of increasing the actual terms of confinement for some members

of the identified subclass.

Former O.A.C. § 5120:1-1-19, the law in effect when the members of the identi-

fied subclass committed their initial offenses, provided that:

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(A)(1) In the event a releasee is convicted and sentenced
on a new felony under Ohio law, it shall be conclusively pre-
sumed that Administrative Regulation 5120:1-1-12 has been
violated. In such cases, as applicable, the parole revocation
hearing will be confined to the determination of mitigating
circumstances.

eee

(D) If at the hearing it is found by substantial evidence con-

sidering the record as a whole, that the alleged violation has

been >roved and that mitigating circumstances, if any, do

notr <e revocation inappropriate, release shall be revoked

by th °arole Board.

(E) the hearing panel, in its discretion, determines that

revoc. of release is inappropriate even if the alleged

violation as been proved, the inmate shall be released to

his former status, provided, however, that in the discretion of

the Parole Board the terms and conditions of release may

be modified *** .
Under this rule, members of the identified subclass could avoid revocation by establish-
ing sufficient mitigating circumstances to satisfy the panel that revocation would be in-
appropriate. The subclass members also were entitled to enjoy the panel’s exercise of
its discretion not to revoke parole.

O.A.C. § 5120:1-1-21 terminates these rights. It deprives the revoking authority
of any discretion to find that mitigating factors render revocation inappropriate and to
order the parolee restored to parole. It also deprives the parolee of the right to a
meaningful hearing on mitigation. By terminating these rights, O.A.C. § 5120:1-1-21 will
increase the term of confinement some subclass members will serve on their initial
crimes. The subclass members who will be prejudiced are those who are able to se-

cure release from the new sentence and who would otherwise be restored to parole,

but for the parole revocation under O.A.C. § 5120:1-1-21.

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There are many situations under Ohio law in which a PVR may secure release

from the sentence for the new offense, e.g., by being granted probation, shock proba-
tion, or an appeal bond, or by securing correction, modification, or vacation of the sen-
tence by way of direct or collateral review. In addition, the new sentence could simply
expire. See, e.g., State ex rel. Jackson v. Denton, 5 Ohio St.3d 179 (1983) (where
Petitioners revoked a PVR’s parole without a mitigation hearing even though the trial
court granted probation on the new offense knowing the defendant was on parole at the
time of the offense). It is precisely in situations where the new sentence is suspended,
modified, or vacated that mitigating circumstances are most likely to exist.

Under former O.A.C. § 5120:1-1-19, a PVR who presented sufficient mitigation
could be released from prison and restored to parole. O.A.C. § 5120:1-1-21 has extin-
guished that possibility. By doing so, the new rule will cause such PVRs to be confined
on the initial sentence for a longer time than they would have been under the former
rule. This is exactly the “effect” the Court in Morales recognized as prohibited by the Ex
Post Facto Clause. Morales, 115 S.Ct. at 1603; Collins, 497 U.S. at 43; accord Beazell
v. Ohio, 269 U.S. 167, 171 (1925) (“the constitutional provision was intended to secure
substantial personal rights against arbitrary and oppressive legislation”). The amend-
ment in Morales survived scrutiny under the Ex Post Facto Clause because it did not

result in such additional confinement for the initial crime.

’ This scenario will occur more frequently as a result of the amendment to O.R.C. § 2967.15. Vast num-
bers of parolees will be returned to prison for minor misdemeanor offenses which may not even result in a
term of confinement at all. Similarly, many PVRs will be returned to a state penal institution for misde-
meanor convictions in which they were sentenced to time served in the local jail or where their local jail
sentences have already expired by the time they are conveyed to prison for the parole revocation.

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3. ENACTMENT OF O.A.C. § 5120:1-1-21 MODIFIED THE SUBSTANTIVE STANDARDS FOR
DETERMINING WHETHER PAROLE SHOULD BE REVOKED IN PVR CASES.

The amendment construed in Morales, 115 S.Ct. 1597, is also distinguishable on
the basis that, as the Court repeatedly stated, the amendment did not alter the stan-
dards for determining parole eligibility or parole suitability. Likewise, it did not modify
the substantive standards for fixing a parole release date. O.A.C. § 5120:1-1-21, how-
ever, effectuated a substantive change in the standards for determining whether parole
should be revoked in PVR cases. In other words, the new rule changed the substantive
standards for determining whether additional confinement for the initial crime is war-
ranted by the parole violation.

Under the rule in effect when the members of the identified subclass committed
their initial crimes, the standard for determining whether to revoke parole in PVR cases
was a discretionary one and permitted restoration to parole notwithstanding the parole
violation. Former O.A.C. § 5120:1-1-19(A), (D), and (E). Specifically, the standard for-
merly applied was that parole would be revoked except where the panel, in its discre-
tion and after a meaningful mitigation hearing, determined that mitigating circumstances
rendered revocation inappropriate. Kellogg, 46 F.3d at 509.

Enactment of O.A.C. § 5120:1-1-21 fundamentally changed the prior standard by
mandating that Petitioners revoke parole in every PVR case, regardless of any mitigat-
ing factors in a particular case. The new rule provides, in pertinent part:

(A) The adult parole authority shall revoke the release of
any releasee who is recommitted to the department of re-
habilitation and correction to serve a sentence imposed

upon him by any court in Ohio for an offense he committed
while on any release granted by the adult parole authority

eee

-19-

(B) This revocation shall be accomplished by the issuance
of minutes by the adult parole authority after it has verified
that the sentence was imposed for an offense that occurred
while the prisoner was under release status.

Enactment of this rule constituted imposition of a mandatory revocation standard
where a discretionary one previously existed."© Petitioners have no legal alternative
but to revoke parole in PVR cases. The rule eliminates the right to a mitigation hearing
and to the panel’s exercise of discretion to restore a PVR to parole in light of the mitigat-
ing circumstances. Further, the court below recognized that Petitioners enacted the
new rule for the precise purpose of imposing a new standard for revoking parole in PVR
cases:
Thus, the agency can “declare” a parolee to have been
convicted of a subsequent violation while on a parole to be a
“violator” either by administrative rule, or through an individ-
ual hearing. The agency has chosen to address these
cases by administrative rule *** .

Kellogg, 46 F.3d at 507-08.

Petitioners assert that, “the substantive standards for determining whether parole
should be revoked were not altered by the rule change.” Petition, 13. This assertion
defies reason. O.A.C. § 5120:1-1-21 clearly reflects the codification of Petitioners’
judgment that parolees who commit felonies while on parole must always have their pa-

role summarily revoked regardless of any mitigating factors which may exist in an indi-

vidual case and regardiess of whether, for example, the new sentence is overturned on

© This is similar to the change which the Court found violated the Ex Post Facto Clause in Lindsey v.
Washington, 301 U.S. 397 (1937). There, the statute modified the sentencing standard from one which
allowed imposition of a fifteen (15) year sentence to one which required a fifteen (15) year sentence.
See Dobbert v. Florida, 432 U.S. 282, 300 (1977) (“[U}nder the new law it was the only sentence he could

-20-

EEE SLT Ce

appeal or suspended by the trial court.'” This new standard is clearly at odds with the

provisions of former O.A.C. § 5120:1-1-19.
Additionally, Petitioners argue that the revocation standards have not changed
because, “even under the old rule, inmates who were convicted of crimes committed
while on parole were conclusively presumed to be parole violators.” Petition, 13. Peti-
| tioners are mixing apples with oranges. Under both the new and former rules, there is a
| conclusive presumption of a parole violation. See Gagnon v. Scarpelli, 411 U.S. 778
(1973). This standard has not changed. What has changed is the standard applied to
the next step of the revocation decision, i.e., whether the violation warrants revocation

or some lesser sanction.

Petitioners also assert that “Respondents argued from the outset that the PVR
revocation process under the old rule resulted in the revocation of parole in every case
in which the PVR was found to have been convicted of a felony while on parole.” Peti-
tion, 13, n. 4. That is, Petitioners attempt to prove that enactment of O.A.C. § 5120:1-1-
21 worked no change in the revocation standards because the results of the “hearings”
under the former rule and those obtained under the new rule are identical."® This ar-

gument fails to prove that the legal standards have not changed; it only establishes

have received, while under the old law the sentencing judge could in his discretion have imposed a much
shorter sentence.”).

"’ Petitioners admitted under questioning at oral argument below that, even where a PVR's new conviction
is reversed on appeal, Petitioners will not restore the PVR to parole, but will retain the PVR in custody until
the PVR can obtain release through further litigation, e.g., by filing a state habeas corpus action.

*® Respondents established in their motion for summary judgment that Petitioners have never failed to re-
voke a PVR's parole. However, Respondents’ proof also demonstrates that Petitioners have never con-
ducted a PVR revocation hearing that comports either with the requirements of due process or with former
O.A.C. § 5120:1-1-19. Even though Petitioners represented to the court in Moss v. Patterson, 555 F.2d
137, 138 (6th Cir.), cert. denied sub nom., Kette v. Moss, 434 U.S. 873 (1977), that tney were providing
hearings to PVRs under former O.A.C. § 5120:1-1-19, and even though the court in Moss, id., specifically

-21-

that, by enacting the new rule, Petitioners legitimated a practice which was illegal under

the former rule.'® Petitioners’ illegal conduct in failing to satisfy the former standard

cannot prove that the former standard did not exist. It is, indeed, spurious for Petition-

ers to argue that their illegal conduct defines the legal standard in effect under the for-
mer rule.

It is obvious, then, that O.A.C. § 5120:1-1-21 establishes a new standard for de-
termining whether parole should be revoked in PVR cases. Likewise, this new standard
is more onerous than the standard under former O.A.C. § 5120:1-1-19. As a result of
the new standard, many subclass members will spend more time in prison for their ini-
tial crimes than they would have under the former rule. These factors clearly distin-
guish O.A.C. § 5120:1-1-21 from the amendment addressed in Morales, 115 S.Ct. 1597,
and just as clearly establish a violation of the Ex Post Facto Clause.

B. THE SixtH CirncuiT COURT OF APPEALS PROPERLY FOUND THAT RETROSPECTIVE
APPLICATION OF O.A.C. § 5120:1-1-21 VIOLATES THE Ex Post FACTO CLAUSE
BECAUSE SUCH APPLICATION WILL RESULT IN INCREASING THE AMOUNT OF TIME
MEMBERS OF THE IDENTIFIED SUBCLASS WILL SPEND IN PRISON ON THE INITIAL CRIME.

1. THE ANALYSIS BELOW.

The Sixth Circuit properly found that retrospective application of O.A.C. § 5120:1-

1-21 violates the Ex Post Facto Clause because such application will result in increas-

ing the amount of time members of the identified subclass will spend in prison. The

held that PVRs are entitled to due process in the revocation of their paroles, not a single constitutionally
adequate PVR revocation hearing has ever been conducted in Ohio.

® The District Court found that the procedures Petitioners actually applied under the former law failed to
satisfy the requirements of due process. May 27, 1993 Opinion and Order, 5-7. Petitioners did not cross-
appeal

-22-

court's analysis is straightforward and falls well within the contours of this Court's ex
post facto jurisprudence. See Kellogg, 46 F.3d at 509-10.

First, the court notes the traditional test for establishing an ex post facto viola-
tion: the law must (1) “be retroactive in application, and (2) ‘must disadvantage the of-
fender affected by it.” Kellogg, id. at 509, quoting Miller v. Florida, 482 U.S. 423, 430
(1987); accord Dobbert v. Florida, 432 U.S. 282, 294 (1977) (“It is axiomatic that for a
law to be ex post facto it must be more onerous than the prior law.”). The court also
notes the axiom that the focus of the analysis “is the time the offense was committed.”
Kellogg, id.; Weaver v. Graham, 450 U.S. 24, 30-31 (1981).

The court then addresses the “disadvantage” or “more onerous” prong of the
analysis. The court focuses on the substantive/procedural distinction because Petition-
ers argued that the rule was a mere procedural change. Applying Dobbert, 432 U.S. at
293, and Miller, 482 U.S. at 433, and upon finding that the new rule “affects substantive
rights,” the court concludes that “the new regulations may violate the Ex Post Facto
Clause for a portion of the plaintiff class.” Kellogg, id. Accord Collins, 497 U.S. at 45
(“While these cases do not explicitly define what they mean by the word ‘procedural,’ it
is logical to think that the term refers to changes in the procedures by which a criminal
case is adjudicated, as opposed to changes in the substantive law of crimes.”). Finally,
the court determines that the new rule is retrospective as to the subclass of PVRs “who
committed their initial crime before the new regulations came into effect but whose pa-
role revocation proceedings will be governed by the new regulations.” Kellogg, id. at

510.

-23-

+ So CRs ih acaete - Cinema et ate fe a

The only aspect of the Sixth Circuit Court of Appeals’ analysis which is arguably
implicated by Morales, 115 S.Ct. 1597, is the discussion of the “disadvantage” prong of
the ex post facto test. The retrospectivity prong of the ex post facto test was not liti-
gated in Morales. In this regard, Petitioners again mischaracterize Morales by alleging
that Morales held it to be error to look to the time of the initial crime in determining
whether the law is retrospective for ex post facto purposes. Petitioners assail Rodriguez
v. United States Parole Commission, 594 F.2d 170 (7th Cir. 1979). Petition, 10-11.
Petitioners argue that Morales made it clear that “the Sixth Circuit’s reliance on
Rodriguez in focusing on the time of the inmate’s initial offense was erroneous.” /d. at
11.

This Court’s opinion in Morales is void of any reference to the issue of whether
the date of the initial crime or the date of the violation offense is the operative date for
ex post facto purposes. This question was simply not presented. Petitioners do not
cite any language in Morales to support their proposition because no such language
exists. Accordingly, Morales does not warrant a remand on this issue.

Furthermore, the Sixth Circuit's resolution of this issue comports with this Court's
ex post facto precedent. The court below specifically cited this Court’s decision in
Weaver, 450 U.S. 24, in support of its conclusion on this issue. In Weaver, this Court
rejected the argument Petitioners made below and which they now repeat in their Peti-
tion. There, the Court looked to the date of the commission of the offense as the key
date. Weaver, id. at 31 (“The critical question is whether the law changes the legal
consequences of acts completed before its effective date.”); accord Miller, 482 U.S. at

430.

-24-

Petitioners overlook the Sixth Circuit's reliance on Weaver, id., in support of this

proposition and focus only on Rodriguez, 594 F.2d 170. They fail to advise this Court
that, in order to adopt their position, this Court must overrule Weaver, id., not to men-
tion the many circuit court decisions on this point. Petitioners’ attack upon this well set-
tled principle of ex post facto jurisprudence is utterly groundless and fails to warrant re-
view or a remand.

2. THE ANALYSIS BELOW IS CONSISTENT WITH MORALES, 115 S.CT. 1597, COLLINS, 497
U.S. 37, AND DOBBERT, 432 U.S. 282 (1977).

a. THE SIXTH CIRCUIT’S DECISION ADOPTED THE SUBSTANTIVE/PROCEDURAL
ANALYSIS IN MILLER V. FLORIDA, 482 U.S. AT 433, AND DOBBERT V. FLORIDA,
432 U.S. AT 293-94, NOT THE “SUBSTANTIAL DISADVANTAGE” APPROACH TAKEN
IN LINDSEY V. WASHINGTON, AT 401. THIS COURT’S REAFFIRMATION OF
MILLER’S SUBSTANTIVE/PROCEDURAL ANALYSIS IN MORALES, 115 S.CT. AT
1602, VINDICATES THE SIXTH CIRCUIT’S RESOLUTION OF THE ISSUE. PETI-
TIONERS GROSSLY MISCHARACTERIZE THE EX POST FACTO RATIONALE APPLIED BY
THE SIXTH CiRCuUIT COURT OF APPEALS.

The Petition is laden with gross mischaracterizations of the ex post facto ration-
ale applied by the Sixth Circuit Court of Appeals. In fact, the core of Petitioners’ argu-
ment is based upon a fundamental mischaracterization of the Sixth Circuit’s opinion.
Petitioners erroneously allege that the court below applied the “substantial disadvan-
tage” rationale which this Court decried in Morales, 115 S.Ct. at 1602, n. 3. Petitioners
state:

[T]he Sixth Circuit’s resolution of the inmates’ ex post facto
claim hinged upon two basic conclusions: *** second, elimi-
nation of the mitigation hearing could not be done

“retrospectively” because it would amount to a “substantial
disadvantage” prohibited by the ex post facto clause.

-25..

Petition, 10.2° This characterization is entirely inaccurate and is intended for the self-
serving purpose of bringing the case within the purview of this Court's comments in Mo-
rales, id. at 1602, n. 3.

The Sixth Circuit did not utilize the “substantial disadvantage” rationale, but ana-
lyzed the case with a view to whether the rule worked a procedural or a substantive
change. Neither Respondents’ claims nor the Sixth Circuit's decision depend upon the
“substantial disadvantage” analysis which originated in Lindsey v. Washington, 301
U.S. 397, 401 (1937), and which was disapproved of in Morales, 115 S.Ct. 1597.2"
Although the court used the term “disadvantage,” it was not with the meaning this Court
denounced in Morales, id. at 1602, n. 3, i.e., in the sense of the “substantia! disadvan-
tage” language of Lindsey, 301 U.S. at 401. The court below simply used
“disadvantage” as a shorthand reference to the requirement that the new law be “more
onerous” than the old law. Surely the Court did not intend in Morales, id. at 1602, n. 3,

to disapprove of this prong of the traditional analysis. To the contrary, the Court cites

2° Also see Petition, 6 (characterizing the Sixth Circuit's decision as finding an ex post facto violation
“solely on the ground of an alleged ‘substantial disadvantage’ to the inmates”); Petition, 11 (“Of course, it
was the elimination of this hearing which the Sixth Circuit found to be a ‘substantial disadvantage’ pre-
cluded by the ex post facto clause.”); and Petition, 12 (“The Sixth Circuit focused exclusively on the al-
leged ‘substantial disadvantage’ to the inmates ***.”).

2"The Court in Morales generally cites Lindsey with approval. Morales, id. at 1601-02. The only disap-
proving note is sounded in footnote 3, where the Court disapproves only of the “substantial disadvantage”
language in Lindsey, id. at 401, which was repeated in Weaver, 450 U.S. at 29, and Miller, id. at 433. This
language applied the ex post, facto bar to laws which merely “disadvantage” offenders, but which do not
“alter the definition of criminai conduct or increase[ } the penalty by which a crime is punishable.” Morales,
id. at 1602, n. 3. The proper exegetical analysis of Morales’ footnote 3 must begin with the cited portions
of Lindsey, Weaver, and Miller laid out side-by-side. This method demonstrates that the common thread
linking these citations is Lindsey's “disadvantage” language. It is the ambiguity of “disadvantage” which
the Court specifically assails in footnote 3.

-26-

with approval language in Dobbert, 432 U.S. at 294, applying the “more onerous” re-

quirement. Morales, id. at 1603.”

The issue upon which the decision below turned was whether, as Petitioners ar-
gued, the new rule was merely procedural and, therefore, not subject to the ex post
facto bar. Kellogg, 46 F.3d at 509. The determinative factor in the Sixth Circuit's
analysis was its reliance on Miller, 482 U.S. at 433. The decision in Miller incorporated
both the “substantial disadvantage” language cited in Morales, id. at 1602, n.3, and the
substantive/procedural analysis. Miller, id. The Sixth Circuit relied not on the
“substantial disadvantage” language, but on the discussion of the substan-
tive/procedural issue. Immediately after the “substantial disadvantage” discussion, the
Court in Miller addressed the substantive/procedural distinction:

Finally, even if a law operates to the defendant's detriment,
the ex post facto prohibition does not restrict “legislative
control of remedies and modes of procedure which do not
affect matters of substance.” Dobbert, 432 U.S., at 293 ***.
Hence, no ex post facto violation occurs if the change in the
law is merely procedural and does “not increase the pun-
ishment, nor change the ingredients of the offense or the ul-
timate facts necessary to establish guilt.” Hopt v. Utah, 110
U.S. 574, 590 *** (1884). See Dobbert, supra, at 293-294
*** (“The new statute simply altered the methods employed
in determining whether the death penalty was to be im-
posed; there was no change in the quantum of punishment
attached to the crime”). On the other hand, a change in the
law that alters a substantial right can be ex post facto “even
if the statute takes a seemingly procedural form.” Weaver,
450 U.S., at 29, n. 12 ***.

Miller, id. at 433. This is the language cited by the Sixth Circuit. Kellogg, id. at 509.

22 The court's use of “disadvantage” in reference to the “more onerous” prong is also consistent with Co/-
lins, 497 U.S. at 41, (“[I]t has long been recognized that the constitutional prohibition on ex post facto laws
applies only to penal statutes which disadvantage the offender affected by them.’).

-27-

More importantly, the Sixth Circuit's resolution of the substantive/procedural is-
sue is consistent with Collins, 497 U.S. 37. This is critical because, unlike the situation
in Morales, the Court in Collins directly addressed the substantive/procedural distinc-
tion. There, the court summarized its view of the relevant precedent as follows:

We think the best way to make sense out of this discussion
in the cases is to say that by simply labeling a law
“procedural,” a legislature does not thereby immunize it from
scrutiny under the Ex Post Facto Clause. *** Subtle ex post
facto violations are no more permissible than overt ones. In
Beazell [v. Ohio, 269 U.S. 167 (1925)], we said that the
constitutional prohibition is addressed to laws, “whatever
their form,” which make innocent acts criminal, alter the na-
ture of the offense, or increase the punishment. /d., 269
U.S. , at 170.

Collins, id. at 47. Accordingly, under both Collins and Morales, the ultimate question is
whether the new rule, whether procedural or not, increases the punishment for the ini-
tial crime for some members of the identified subclass. The Sixth Circuit's analysis was
aimed at precisely that question.

Additionally, this Court’s reasoning Morales specifically vindicates the Sixth Cir-
Cuit’s reliance on Miller, id. In Morales, the Court specifically cited the above-quoted
portion of Miller with approval:

Rather than changing the sentencing range applicable to
covered crimes, the 1981 amendment simply “alters the
method to be followed” in fixing a parole release date under
identical substantive standards. See Miller, supra, 482 U.S.
at 433 *** (contrasting adjustment to presumptive sentencing
range with change in “the method to be followed in determin-
ing the appropriate sentence”); see also Dobbert v. Florida,
432 U.S. 282, 293-294 *** (1977) (contrasting change in the
“quantum of punishment” with statute that merely “altered
the methods employed in determining whether the death
penalty was to be imposed”).

-28-

Morales, id. at 1602. This language exposes the fallacy in Petitioners’ argument that

the Sixth Circuit's decision represents the “broader” approach rejected in Morales, id. at
1602, n. 3. Since this Court incorporated into its analysis in Morales the same lan-
guage the court below relied upon to reach its decision, Morales provides no basis for
granting review or requiring a remand. —.

b. NOTWITHSTANDING PETITIONERS’ GROSS MISCHARACTERIZATIONS TO THE
CONTRARY, THE SIXTH CIRCUIT’S DECISION TURNED UPON WHETHER O.A.C. §
5120:1-1-21 WILL INCREASE THE ACTUAL TIME MEMBERS OF THE IDENTIFIED
SUBCLASS WILL BE CONFINED FOR THE INITIAL CRIME.

Petitioners grossly misrepresent the Sixth Circuit's decision by claiming that the
court failed to consider whether the change in the law will have an impact on any pris-
oner’s actual term of confinement. “In contrast, the Sixth Circuit in this case focused
exclusively on a perceived change in conditions, without considering whether the
change had an impact on the sentence.” Petition, 9.7°

The Sixth Circuit's decision turned on the fact that the new rule will result in in-
creasing the time served in prison on the initial crime for many PVRs. The court found
an ex post facto violation because the new rule deprives some PVRs of “substantive
rights attendant to parole revocation.” Kellogg, 46 F.3d at 509. As the court reasoned:

Although the change here involves a procedural matter - the
right to a hearing on revocation of parole - it still affects
substantive rights attendant to parole revocation. Under the
old regulations, parole would be revoked for the full amount
of time unless the inmate could convince the parole authority
that mitigating circumstances warranted mercy. Under the
new procedures, there is no opportunity to present these

mitigating circumstances. This procedural change affects
substantive rights. (Emphasis in original.)

3 Also see Petition, 12 (“The Sixth Circuit *** did not address the fundamental question of whether the
change in parole revocation rules resulted in an increase in punishment for the inmates’ initial offenses.”).

-29-

Kellogg, id. While framed in substantive/procedural terms, the court's analysis never-
theless turned on whether the new rule increases the punishment for the initial crime.
The court properly focused on the key fact, i.e., that the new rule deprives the PVRs of
the right to an opportunity to avoid an increased sentence for the initial crime.

The factor that makes these rights substantive ones is the same factor that satis-
fies the ex post facto analysis in Collins, 497 U.S. 37,%* and Morales, 115 S.Ct. 1597,
i.é., that the new rule mandates additional incarceration on the initial crime, even where
the new sentence is stayed, suspended, modified, vacated, or expires, and eliminates
the possibility of continued release on parole despite the violation. Therefore, the deci-
sion below is consistent with both Morales and Collins.

It is the Petitioners, not the court below, who have consistently failed to incorpo-
rate into their analysis the practical effect of the new law on the sentences served by
members of the identified subclass for their initial crimes. Not once in the course of this
litigation have Petitioners rebutted Respondents’ arguments regarding the confining
effect of the revocation decision where the sentence for the new offense is stayed, sus-
pended, modified, vacated, or has expired." While Petitioners do make the conclusory
statement that “a change in parole revocation procedures cannot in any way increase
the amount of time an inmate must serve before obtaining release on parole”, they pre-

sent no authority or argument to justify that conclusion. Petition, 13. Yet, simply assert-

*“This Court did not address the substantive/procedural distinction in Morales. Rather, that issue was
addressed five years ago in Collins. Accordingly, Morales provides no justification warranting a remand.

25 Due to the radical breadth of O.R.C. § 2967.15(B), there will be increasingly larger numbers of PVRs
who are returned to prison after having already completed their sentences in local jails or who will not
have received a sentence of confinement at all, .e., where the conviction is for a minor misdemeanor of-
fense.

-30-

ing the proposition does not make it true. Moreover, Petitioners’ logic is inherently

flawed. What is a parole revocation if not the execution of an additional portion of the
initial sentence?” Petitioners have no response to Respondents’ argument because
their analysis. simply cannot account for the reality that PVRs will spend more time in
prison on the initial crime wher the new sentence no longer requires detention.

c. The result below is consistent with Morales, 115 S.Ct. 1597, and Col-
lins, 497 U.S. 37.

Regardless of the validity of its analysis, the result reached by the Sixth Circuit is
consistent with Morales, 115 S.Ct. 1597, and Collins, 497 U.S. 37. The Court held that
the Ex Post Facto Clause prohibits retrospective application of laws which increase the
penalty by which a crime is punishable. Morales, id. at 1601, 1602, n. 3; Collins, id. at
43. By specifically citing Weaver, 450 U.S. 24, with approval, the Court in Morales rec-
ognized that it has invalidated ex post facto modifications of substantive post-
sentencing mechanisms which alter the time a prisoner spends in confinement for the
crime. Morales, id. at 1601.2” Moreover, this Court has applied the ex post facto bar to

statutes involving parole, Marrero, 417 U.S. 653, and specifically to parole revocation.

6 in Ohio, a parole violation is not an independent offense punishable by a sentence prescribed by the
Revised Code.

2? Accord Morales, id. at 1602 (“The amendment also left unchanged the substantive formula for securing
any reductions to this sentencing range."); Morales, id. at 1604 (“The amendment has no effect on the
date of any prisoner's initial parole suitability hearing;” and “there is no reason to conclude that the
amendment will have any effect on any prisoner's actual term of confinement."); and Morales, id. at 1605
(“Such a prisoner's ultimate date of release would be entirely unaffected by the change in the timing of
suitability hearings.”).

-31-

LS, a a a a TS I: - AL EIT SA II TE Ee

A ES Te CT

Greenfield v. Scafati, 277 F.Supp. 644 (Mass. 1967) (three-judge court), summarily
affd, 390 U.S. 713 (1968) (affirming the finding of an ex post facto violation where a
statute, which eliminated the opportunity to accumulate gain-time for the first six months
after a parole revocation, was applied to an inmate whose initial crime occurred before
the statute’s enactment). In Morales, the Court did not avail itself of the opportunity to
jettison either Marrero, id., or Scafati, id., even though these cases were relied upon in
Justice Stevens’ dissentina opinion. Morales, id. at 1607 (Stevens, J., dissenting).

Thus, even if the court’s analysis is inconsistent with Morales or Collins, remand
is unwarranted because the result is consistent with those decisions. The new rule
possesses features which radically distinguish it from the amendment scrutinized in Mo-
rales. See section !, A, supra. These features immediately implicate the ex post facto
concerns set forth in Morales and Collins. Accordingly, the outcome would have been
the same even if the Sixth Circuit had had the benefit of this Court’s decision in Mo-
rales.

Since both the rationale and the result of the decision below are consistent with
Morales, there is no justification for granting review or remanding for consideration in
light of Morales.

ll. PETITIONERS MAY NOT BE PERMITTED TO USE A PETITION FOR WRIT OF
CERTIORARI TO REVIVE A DEFENSE OR CLAIM THEY WAIVED BELOW.

Petitioners’ argument in support of their second question presented for review is
based entirely on a defense which was rejected by the District Court as specious and

which Petitioners waived by their failure to cross-appeal. They now seek to revive this

-32-

defense before this Court notwithstanding that the issue was not briefed and the Sixth
Circuit Court of Appeals had no opportunity to review it.
Petitioners argue that:

*** the change in the rule does not, in and of itself, have any
retrospective effect on the an [sic] inmate's initial sentence.
Rather, it is the prisoner's subsequent conviction for an of-
fense committed while on parole which occasions the pa-
rolee’s return to prison.

Petition, 13. This is the same argument rejected as specious by the District Court in its
May 27, 1993 Opinion and Order:

Defendants contend, first, that the procedures fol-
lowed under OAC §5120:1-1-19(A)(1) do not contravene any
constitutional dictates because PVRs, who are already in
custody on the new conviction, do not in fact qualify as pa-
rolees. Accordingly, defendants argue, ne action taken by
parole officials can result in the deprivation of the PVRs’ lib-
erty, This argument is specious.

The United States Court of Appeals for the Sixth Cir-
cuit has specifically recognized that PVRs in Ohio are enti-
tled to a final revocation hearing consistent with Morrissey
[v. Brewer, 408 U.S. 471 (1972),] and Gagnon [yv. Scarpelli,
411 U.S. 778 (1973)]. Inmates’ Councilmatic Voice v.
Rogers, 541 F.2d 633 (6th Cir. 1976). Moreover, Moody v.
Daggett, 429 U.S. 78 (1976), made clear that a parolee’s in-
carceration on an entirely new charge is not co-extensive
with the revocation of his parole. Finally, it is indisputable
that the actual result of the final parole revocation hearing is
the panel's revocation of the PVR’s parole.

May 27, 1993 Opinion and Order, 7. Petitioners’ argument contradicts both Moody, 429
U.S. 78, and Gagnon, 411 U.S. at 790 (holding that not only are PVRs entitled to the
procedural rights under Morrissey, 408 U.S. 471 but they are also entitled to the right to
counsel where, “even if the violation is a matter of public record ***, there are substan-

tial reasons which justified or mitigated the violation and make revocation inappropriate,

-33-

-- — — _— oe ee a

and that the reasons are complex or otherwise difficult to develop or present.”). Also
see Moss v. Patterson, 555 F.2d 137 (6th Cir.), cert. denied sub nom. Kette v. Moss,
434 U.S. 873 (1977).

Petitioners elected not to cross-appeal the District Court's rejection of their sole
defense to the merits of Respondents’ claims. By doing so, they assumed the risk of an
adverse judgment on appeal. Additionally, their failure to appeal deprived the Sixth Cir-
cuit of the opportunity to review this issue. Petitioners’ waiver of this issue defeats their
transparent attempt to revive the issue via the Petition for writ of certiorari.

Petitioners’ failure to cross-appeal is particularly fatal to their instant attempt to
secure a remand because Petitioners were explicitly aware that a decision was pending
in Morales, 115 S.Ct. 1597, when they decided not to cross-appeal.”° This is similar to
the situation presented in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).
There, the petitioners sought modification of a consent decree because of the Court's
decision in Bell v. Wolfish, 441 U.S. 520 (1979). However, Bell was pending in this
Court at the time the parties executed the consent agreement, just as Morales was
pending when Petitioners decided not to cross-appeal. Given these facts, this Court
stated:

[P]etitioners were undoubtedly aware that Bell was pending
when they signed the decree. Thus, the case must be

judged on the basis that it was immaterial to petitioners that
double celling might be ruled unconstitutional *** .

28 Respondents brought the matter to their attention in Respondents’ “Additional Citation” and during oral
argument before the Sixth Circuit.

Pt EY SS ARR ea oe ee

Rufo, id. at 388. Likewise, it must be adjudged that Petitioners’ waiver of this issue in
the face of an impending decision in Morales defeats their instant attempt to secure re-
view or a remand on the basis of Morales.

As to the substance of their second question presented for review, Petitioners
fail to inform the Court that adoption of Petitioners’ argument will require the Court to
overrule firmly established precedent, i.e., Gagnon, 411 U.S. at 790; Moody, 429 U.S.
78; and Black v. Romano, 471 U.S. 606 (1985). Petitioners have failed to revi the
Court with authority or argument of sufficient weight to warrant review or remand. Most
certainly, this Court’s decision in Morales, 115 S.Ct. 1597, provides no basis for such

relief.

CONCLUSION
For the foregoing reasons, Respondents respectfully request the Court to deny
the petition for writ of certiorari because the case presents no issue appropriate for the
Court's review, and because the judgment of the United States Court of Appeals for the

Sixth Circuit was not in error.

DAVID H. BODIKER #0016590
Ohio Public Defender

Assistant State Public Deferider
Counsel of Record

on R. SPIERT # es

Assistant State Public Defender

-35-

Ohio Public Defender Commission
8 East Long Street - 11th Floor
Columbus, Ohio 43266-0587
(614) 466-5394

COUNSEL FOR RESPONDENTS

CERTIFICATE OF SERVICE

Pursuant to Rule 29.5(b), Rules of the Supreme Court, | hereby certify that a true
copy of the foregoing Respondents’ Brief in Opposition was forwarded by regular U.S.
Mail to Betty Montgomery, Ohio Attorney General, 30 East Broad Street, Columbus, Ohio
43266-0410, on this 30th day of June, 1995. | further certify that all parties required to

be served have been served.

HOMAS R. WETTERER, i gi
Assistant State Public Defend
Counsel of Record

COUNSEL FOR RESPONDENTS

#10070

-36-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1842%3A2. Public record. Not legal advice.