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Default ANother fileing by Attorney ISrak for old law inmates

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION


DENNIS MICHAEL, et al. Case # 3:01CV7436
Plaintiffs, Judge James G. Carr
vs. Memorandum of Law
in Support of Plaintiffs
Supplemental Brief to
MARGARETTE GHEE, et al. Plaintiffs Rule 56 (c)
Motion for Summary
Defendants. Judgment
Respectfully submitted by
/s/ Norman L. Sirak
_____________________
Norman L. Sirak #0038058
75 Public Square, Suite 800
Cleveland, Ohio 44113
Phone (216) 781-2550
Fax (216) 781-6688
Peter Wagner #0034083
5th 3rd Center -14th Floor
608 Madison Ave.
Toledo, Ohio 43604
Phone (419) 242-1400
Counsel for the Plaintiffs



TABLE OF CONTENTS

INTRODUCTION...................................... .................................................. ............1
I. § 1983 Separation of Powers Claim Evolves into New Habeas Claim .........4
A. Emasculating and Circumventing the Layne Decision...........................5
B. Layne, Booker and Blakely Share Common Legal Premise ...................7
C. Rule 15(d) connects § 1983 Separation of Powers Claim to
Habeas Corpus .................................................. ..........................................8
II. New Habeas Corpus Claim Forms Part of Same Case or Controversy ......9
III. Creation of a New Constitutional Rule by Blakely and Booker..................12
IV. Parole Guidelines Viewed Through New Constitutional Rule...................14
A. Upward Departures in Offense Categories ...........................................14
B. Imposition of Bad Time.............................................. ..............................15
C. Criminal History Risk Scores .................................................. ...............16
D. The Multiple Sentence Rule .................................................. ..................17
E. Adding Time for Any Other Factors the A.P.A. Deems Relevant .........18
F. Policy 501 – 36, Parole Eligibility Denied to Security
Classifications 4 & 5................................................. ...................................19
V. Recent Ohio Appellate Decisions......................................... ........................19
A. State ex rel Bray.............................................. .........................................19
B. Layne v. Adult Parole Authority......................................... ...................21
iii
C. Ankrom v. Hageman........................................... .....................................23
VI. U.S. Supreme Court Decisions Preceding New Constitutional Rule.......26
VII. Application of New Constitutional Rule to Parole Guidelines .................28
A. Only an Article IV Ohio Court can Issue a Valid
Criminal Sentence.......................................... .........................................32
B. Support for Parole Board Sentencing Authority .................................34
VIII. Engaging Habeas Corpus Relief 28 U.S.C. § 2241 ....................................37
A. Propriety of a Habeas Corpus Class Action.........................................38
B. Combining § 1983 Civil Rights Claim with Habeas Corpus Claim ...38
C. If a Right Exists Without a Remedy, in Practice,
There is No Remedy............................................ ....................................39
D. Plyer v. Moore .................................................. ........................................40
E. Death Row Prisoners of Pennsylvania .................................................. ..41
IX. One Year Jurisdictional Statute of Limitations to file
Habeas Corpus Claims .................................................. ...............................44
X. The Exhaustion Requirement .................................................. ....................47
A. Inadequate Relief through Judicial Review .........................................49
B. Inadequate Relief through Administrative Appeals............................51
C. Inadequate Judicial Oversight of Parole Board Operations ..............52
XI. Substantive Prerequisite – the Unreasonable Application Clause ..........55
CONCLUSION........................................ .................................................. .............58
CERTIFICATE OF SERVICE .................................................. ..........................61
iv
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) ..............26, 27
Blakely v. Washington, 124 S. Ct. 2531 (2004) ......7, 8, 9, 12-13, 17, 21-22, 26, 28, 31, 45-46, 58
Cooey v. Bradshaw, 338 F.3d 615 (6th Cir. en banc 2003)............................................. ................1
Death Row Prisoners of Pennsylvania v. Ridge, 948 F. Supp. 1258
(D.C. Eastern Pa. 1996) .................................................. .................................................. ........41-44
Dye v. Cowan, 472 F.2d 1206 (6th Cir. 1972) .................................................. ..............................1
Fay v . Noia, 372 U.S. 391, 411 (1963)............................................ ............................................2-3
Frank v. Mangum, 237 U.S. 309, 346-347 (1915)............................................ ...............................2
Jones v. Shankland, 800 F.2d. 77 (6th Cir. 1986) [Oh. N. Dist.].................................................. ........ 39
Jones v. U.S., 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999)............................................ 26
Lockyer v. Andrade, 538 U.S. 63, 75 (2000)............................................ ............................................ 57
Marino v. Ragen, 332 U.S. 561 (1947) .................................................. ..........................................54-55
Mead v. Parker, 464 F.2d 1108, 1112-13 (9th Cir. 1972) .................................................. .................. 38
Moore v. Dempsey, 261 U.S. 86 (1923) .................................................. ............................................... 2
Moore v. Thorn, 277 N.Y.S. 544 (Sup. Ct. Erie County 1935) .................................................. ......... 33
People v. Bigley, 35 N.Y.S. 2d 130, 133-34 (N.Y. Sup. Ct. 1942) .................................................. ... 33
Plyler v. Moore, 129 F.3d 728 (4th Cir. 1997) .................................................. ................................... 40
Preiser v. Rodriguez, 411 U.S. 475, at 499 (1973 ) .................................................. .................38-42, 44
Schriro v. Summerlin, 124 S. Ct. 2519, 2522 (2004) .................................................. ..................46
Sero. v. Preiser, 372 F. Supp. 660, 662 (D.C. S. N.Y. 1974)............................................. .................. 39
Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002)....................................... 27
v
Rose v. Lundy, 455 U.S. 509 (1982)............................................ .................................................. ....... 47
U.S. v. Booker, 543 U.S. ___(2005) ................................. 7-9, 12-13, 17, 21-22, 26, 28, 31, 36, 46, 58
U.S. Supreme Court in Moore v. Dempsey, 261 U.S. 86 (1923) .................................................. ..2
Walton v. Arizona, 497 U.S. 639 (1990). .................................................. ....................................27
Wilkinson v. Dotson, 125 S. Ct. 1242; 73 U.S.L.W. 4204 (2005) ......................................9, 34, 56
Williams v. Taylor, 529 U.S. 362, 407 (2000) .................................................. ............................57
Wilson v. United States, 250 F.2d 312, 324 (9th Cir. 1957) .................................................. .......33
STATE CASES
Ankrom v. Hageman, 2005-Ohio-1546
(10th Appellate Dist. April 1, 2005)............................................. ...........1, 8-9, 23-26, 29-31, 35, 43, 55
Hattie v. Anderson, 626 N.E.2d 67 (Oh. 1994) .................................................. ................30, 53-54
Layne v. Adult Parole Authority, 97 Ohio St. 3d 456
(Oh. 2002)............................................. ......................... 4-9, 14, 18, 21-25, 29-31, 34-36, 49-50, 53, 55
Ohio Civil Rights Comm. v. Lysyj, 38 Ohio St. 2d 217 (1974) .................................................. .......... 1
Slaven v. Slaven, 22 Ohio Op. 230 (Mont. Cty. Common Pleas, 1941) ............................................. 33
State ex rel Bray v. Russell (2000), 89 Ohio St. 3d 132, 729 N.E.2d 359............1, 9, 19-21, 23, 30-31
State ex rel. Doerffler v. Price, 101 Ohio St. 50 (1920) .................................................. ....................... 1
State ex rel. Shafer v. Otter, 106 Ohio St. 415 (1922)............................................ .........................1
State ex rel. Smith v. Ohio Adult Parole Auth., 2004 Ohio 3700 / 2004 Ohio App.
LEXIS 3329 (10th Appellate District Ct. of Appeals 2004)............................................. ........35-36
State v. Bruce, First Ohio Appellate Dist., No. C-040421 (Feb. 4, 2005).....................................46
State v. Eckstein, 1st Oh. App. Dist. No. C-030139, 2004 – Ohio – 5059.....................................45
Teri v. State, 159 N.E. 594, 597 (Oh. 1957) .................................................. ................................32
Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004) .................................................. ......................37
vi
Troutman v. Ohio Dep't of Rehab., 2005 Ohio App. LEXIS 304 [10th Dist. Ct.] ........................36
Woods v. Telb, 89 Ohio St. 3d 504, 511, 733 N.E.2d 1103 (2000 Oh.)........................................56
UNITED STATES CONSTITUTION AND FEDERAL STATUTES
Article I, § 9, cl. 2 .................................................. .................................................. ........................3
Antiterrorism and Effective Death Penalty Act of 1996, codified as
28 U.S.C. §§ 2241-2256 .................................................. .................................................. ............42
Federal Guidelines 28 CFR §2.20 U.S. Parole Commission Offense Behavior Severity Index,
Chapter Thirteen, Subchapter A General Notes .................................................. ..........................17
Sixth Amendment .................................................. .................................................. ................27, 57
U.S. Const. Article III, § 2. .................................................. .................................................9-10, 44
28 U.S.C. § 1367.............................................. .................................................. ........................9, 12
28 U.S.C. § 2241.............................................. .................................................. ......................37, 42
28 U.S.C. 2244 (d) (1) .................................................. .................................................. ...............45
28 U.S.C. 2244 (d) (1) (A) .................................................. .................................................. .......45
28 U.S.C. 2244 (d) (1) (B) .................................................. .................................................. .........45
28 U.S.C. 2244 (d)(1)(C) .................................................. .................................................. ...........45
28 U.S.C. § 2254.............................................. .................................................. ...........................37
28 U.S.C. 2254 (b) .................................................. .................................................. .....................47
28 U.S.C. § 2254(d) .................................................. .................................................. ...................56
§ 1983 .................................................. .................................................. ......4-5, 8, 10-11, 30, 38-44
FEDERAL RULES OF PROCEDURE
Fed. R. Civ. P. 15(d) .................................................. .................................................. .....8-9, 11, 60
vii
OHIO CONSTITUTION AND OHIO STATUTES
Article IV................................................ .................................................. ..........................1, 14,32,44, 55
R.C. § 111.15(D)(1) and (4)............................................... .................................................. .................. 14
R.C. § 2903.13........................................... .................................................. .............................19-20
R.C. § 2967.03 .................................................. .................................................. ........................47-48, 53
R.C. § 2967.11........................................... .................................................. .......................................... 20
R.C. § 2967.15 (B)............................................... .................................................. ...................48-49
R.C. § 5149.101 .................................................. .................................................. ...........................3
OHIO RULES OF CIVIL PROCEDURE
Rule 12(b)(6).......................................... .................................................. .....................................54
OHIO ADMINISTRATIVE CODE
Ohio Administrative Code § 5120:1-1-07 .................................................. ...................................48
Ohio Administrative Code § 5120:1-1-07 (A)............................................... ................................48
Ohio Administrative Code § 5120:1-1-10 .................................................. ...................................48
PAROLE BOARD GUIDELINES
Ohio Parole Board Guidelines Manual .................................................. ................17, 23, 28, 32, 35
ODRC Policy No. 105-PBD-04................................................ ...........................................3, 23, 51
ODRC Policy No. 501-36................................................ ..........................................2, 7, 14, 19, 49
ODRC Policy No. 501-38................................................ .................................................. ............51
OHIO ATTORNEY GENERAL OPINIONS
Ohio Attorney General Opinion No. 75-082 (OAG 75-082).............................................. .............1
1
Memorandum of Law
Introduction
Article IV of Ohio’s Constitution mandates that judicial power shall vest in
specifically named courts. The Adult Parole Authority [hereafter Parole Board] is
not one of them. Only an Article IV court can issue a valid criminal sentence. This
principal is universally recognized and applies to Ohio1 as well as to Federal law.2
Since the dawn of this litigation, Plaintiffs have steadfastly maintained that
Parole Guidelines allow Parole Board Members and Hearings Officers to function
as an appellate criminal tribunal whose de facto authority exceeds and necessarily
overrules an Article IV Ohio court. At long last, an Ohio Appellate Court concurs.3
In July of 2001 when this litigation began, a vacuum of authority did exist
for deciding the fate of an inmate caught within the yawning expanse of time
between the minimum and maximum termini of an Old Law sentence.4 The Parole
Board filled this vacuum by adopting guidelines, culminating in an elaborate and
1 See State ex rel Bray v. Russell (2000), 89 Ohio St. 3d 132, 729 N.E.2d 359 [hereafter Bray]. See
also Ohio Civil Rights Comm. v. Lysyj, 38 Ohio St. 2d 217 (1974); State ex rel. Doerffler v. Price,
101 Ohio St. 50 (1920); State ex rel. Shafer v. Otter, 106 Ohio St. 415 (1922) [Ohio’s General
Assembly cannot delegate judicial power to an administrative agency or to an executive official. See
also Ohio Attorney General Opinion No. 75-082 (OAG 75-082), at p. 2-326. [The power to impose
a sentence and then modify that sentence is also judicial in nature and cannot be performed by an
executive agency].
2 See Dye v. Cowan, 472 F.2d 1206 (6th Cir. 1972) at footnote 1 [finding an "Order" granting a
certificate of probable cause signed by a U.S. magistrate ultra vires and void because a U.S.
Magistrate is not a Title III (i.e. U.S.Const. art III) judge.] See also Cooey v. Bradshaw, 338
F.3d 615 (6th Cir. en banc 2003). ["Decisions issued ultra vires have no legal meaning."]
3 Document No. 262, Ankrom v. Hageman, Slip Opinion at p. 28-29. [Hereafter Ankrom].
4 For a 1st degree felony of 5 to 25 years, this amounted to 20 years.
2
oppressive set of guidelines in 1998. Until 2002, this authority went more or less
unchecked and unchallenged by Ohio courts.
Since 1998, Named Plaintiffs have been serving Parole Board sentences.
Under current parole guidelines, Plaintiffs have been prosecuted, found guilty and
sentenced in a matter of ten minutes by Parole Board panels to crimes previously
dismissed pursuant to a plea agreement, to crimes never alleged in an indictment
and to aggravating factors never alleged in an indictment.
“We are not speaking of mere disorder or mere irregularities in procedure,
but of a case where the processes of justice are actually subverted."5 We are
speaking of criminal proceedings so fundamentally defective as to make
imprisonment constitutionally intolerable.
Since December 22, 2000, when Policy 501-36 governing parole hearings
was adopted, Old Law inmates with security classifications 4 and 5, equivalent to
maximum and high maximum, have been denied eligibility for parole regardless of
how much time had been served.6 Since adopting these guidelines in 1998, parole
panels have tacked on time above the guideline range for bad time, (i.e. prison rule
infractions), even though Ohio's Supreme Court declared bad time unconstitutional
5 Frank v. Mangum, 237 U.S. 309, 346-347 (1915) (dissenting opinion of Justice Holmes, later
adopted by the U.S. Supreme Court in Moore v. Dempsey, 261 U.S. 86 (1923); see also Fay v .
Noia, 372 U.S. 391, 411 (1963).
6 See Document No. 47, Defendants Appendix to Motion for Summary Judgment, Item B,
Department Policy No. 501-36, titled Parole Board Hearing Policy, VI Procedure, Paragraph D,
(7) at (d). "… Any inmate with a maximum security classification … shall not be granted release."
3
in 2000. Since Ohio's New Law was passed in 1995, crime victims have exercised
the right to get paroles rescinded and an open hearing convened where they can be
present.7 Frequently, open hearings result in substantial amounts of additional time,
even though the inmate has already served well beyond their guideline range.
In all of these cases, significant amounts of prison time have been added for
conduct which has never been sanctioned by the trial court. When a prisoner has
been victimized in this manner, the remedy has been around since at least the 33rd
year of the reign of Edward I in England. We can find it in the U.S. Constitution.8
“It is of the historical essence of habeas corpus that it lies to test
proceedings so fundamentally lawless that imprisonment pursuant to
them is not merely erroneous but void.”9
When this litigation began, Ohio’s Attorney General summarized the law as
follows: Every Old Law inmate can be legitimately held to the expiration of their
maximum sentence pursuant to the authority of the Parole Board.10 The attitude of
parole decision-makers in 2001 was succinctly verbalized by a hearing officer:
"The Full Board's action is the final authority of this agency and their
decision can not be overruled. You are encouraged to maintain a
positive adjustment until release."11
7 See R.C. § 5149.101. See also Administrative Rule 105-PBD-04, at VI Procedure.
8 Article I, § 9, cl. 2. "The privilege of the writ of habeas corpus shall not be suspended …"
9 Fay v . Noia, 372 U.S. 391, 423 (1963).
10 See Document No. 159, Defendants' Memorandum in Support of Motion for Dismissal and
Summary Judgment, at p. 26. [hereafter Defendants' Memorandum].
11 See Document No. 209, Plaintiffs' Exhibit 140, Affidavit of Ronnie Washington, Letter from
Hearing Officer Richard Fitzpatrick, dated August 6, 2001.
4
Since 2001, a transformation has occurred in two fields of law; (1) criminal
sentencing under the 6th Amendment and, (2) circumspection of parole board
discretion in Ohio. One would expect these disciplines – sentencing and exercise of
parole discretion – to be safely separated from one another. Such is not the case.
These two tracks first converged and then collided. At the pin point center of
this intersection, we have a train wreck with the current parole guidelines trapped
and assaulted from both sides. A pincers movement spearheaded by Ohio and U.S.
Supreme Court decisions has taken back the ground previously ceded to the Parole
Board’s authority. The void of law which once existed between the minimum and
maximum termini of an indefinite sentence has now vanished.
§ 1983 Separation of Powers Claim Evolves into New Habeas Claim
A separation of powers violation was first advanced as a state law claim,
described as the unlawful computation of offense behavior scores under the Parole
Guidelines.12 Defendants succeeded in getting this claim dismissed, by convincing
this Court that the Ohio Supreme Court's Layne decision rendered this issue
moot.13 In Plaintiffs' Amended Complaint,14 only federal claims survived.
12 Document No. 138, Order granting Defendants' Motion for Partial Dismissal, which eliminated
Plaintiffs 3rd and 4th Claims objecting to the unlawful computation of offense behavior scores under
the Parole Guidelines. These claims were ruled moot after the Ohio Supreme Court's Layne
decision. See Layne v. Adult Parole Authority, 97 Ohio St. 3d 456 (Oh. 2002).[hereafter Layne.]
13 Layne v. Adult Parole Authority, 97 Ohio St. 3d 456 (Oh. 2002) [hereafter Layne].
14 Document No.'s 140 [for restated claims] and 141 [for monetary damages].
5
Plaintiffs' separation of powers claim was not dropped. Instead, this claim
was merely reconfigured and expanded as a § 1983 Federal civil rights claim
appearing in two places: (1) in the Third Cause of Action for Separation of
Powers15 and; (2) in the Fourth Cause of Action for Bad Faith.16 Layne should have
rendered moot the practice of finding inmates guilty of new criminal behavior. If
Richard Spence's affidavit,17 heavily relied upon in this Court's Order, had been
implemented, the practice would have stopped. However, the Parole Board refused
to accept the premise that its discretion had been sharply constrained. The title
Bad Faith aptly describes the Parole Board's treatment of the Layne decision.
Emasculating and Circumventing the Layne Decision
The crux of the Layne decision rests upon the proper calculation of a score
for the crime, called the offense score. The guideline range is largely determined
by the designated offense score. Together, the offense score and its resulting
guideline range dictate the sentence deemed appropriate for the crime. At a parole
hearing, this offense score is recorded upon a form titled the Ohio Parole Board
15 Document No. 172, Motion for Partial Summary Judgment. This filing addresses the Parole
Board practice of modifying Old and New Law sentences, conducting Parole Board Prosecutions
for Parole violators and adding time for rules infractions (i.e. Bad Time.)
16 Document No. 175, Motion for Partial Summary Judgment for Bad Faith. The issue appears in
this filing as Claim 2, titled Emasculating and Circumventing Layne.
17 See Document No. 135, Defendants' Motion to Dismiss for Mootness, Exhibit A, 3rd Affidavit of
Richard Spence., Parole Board Chief of Quality Assurance. In pertinent part, his affidavit states:
"The OPB will rehear all inmates whose offense behavior was previously classified under the Parole
Guidelines as something other than their offenses of conviction. Those rehearings will occur
regardless of whether the inmate is incarcerated pursuant to plea bargains or trials and will result in
those inmates' offense behavior being classified based on their offenses of conviction."
6
Decision, which memorializes the parole panels' action after a hearing. Layne was
first frustrated and then rendered hollow through modifications made to fields on
this Ohio Parole Board Decision form where the offense score had to be applied.
The Ohio Parole Board Decision form has numbers followed by blanks filled
in by Parole Board decision-makers in the course of a parole review. Critical fields
on this decision form relating to the offense score are totally subjective. The
decision form itself is completed in an autocratic manner, reflecting only the Parole
Board's view. Layne's demise was triggered through two overt maneuvers
involving several fields on this form and one material omission.
(1) Layne's purpose was frustrated when the Parole Board issued a revised
Parole Board Decision just after Layne was decided. Field 8 on the prior form
allowed for upward departures. On this new form, upward departures have been
camouflaged. Field 8 as it existed is now gone. In its place, field 9 permits a parole
panel to add years for any other factors the APA deems relevant.18 This totally
subjective yardstick allows the Parole Board to reach circuitously the same result
Layne prohibited. Further, these words have been lifted from Layne, suggesting a
license for their use which the context of the decision clearly does not contemplate.
(2) The Layne decision was rendered hollow because the offense score no
longer functions as an integral part of the calculation dictating the sentence. Field 1
18 See Document No. 207, Plaintiffs Exhibit 110 [comparing pre-Layne and post-Layne forms.] The
phrase any other factors the APA deems relevant was lifted out of context from the Layne decision.
7
is reserved for noting the offense score. Previously, the score entered in Field 1
appeared as well in Field 8, reserved for upward departures. When Field 8 was
eliminated, the connection between the offense score and the controlling guideline
range was severed. In isolation, Field 1 serves only a clerical purpose. Just as field
4 needs a number tallying the months served, field 1 requires an offense score for
the appearance of the record (i.e. the Parole Board's bow to Layne), and no further
significance attaches to either entry. As a result, guideline boundaries no longer
function as benchmarks for time-served, because nothing of consequence has been
achieved once a guideline has been fully served. In this manner, the offense score,
which formed the crux of Layne's rationale, has been rendered impotent.19
(3) Most importantly, provisions giving the Parole Board authority to make
upward departures remained intact and in force – the material omission.20
Layne, Booker and Blakely Share Common Legal Premise
Layne’s holding prohibited the practice of making upward departures in
offense categories. If followed to the letter, this practice would have rendered
Plaintiffs' separation of powers claim moot. As our Bad Faith claim illustrates, the
19 See Document No. 175, Motion for Partial Summary Judgment for Bad Faith, Claim 2 –
Emasculating and Circumventing Layne, Part I – Predicate Injury to Plaintiffs, at The Separation of
Powers Violation Layne Sought to Avoid, discussing why the offense score is pivotal to Layne.
20 See Document No. 47, Defendants Appendix to Motion for Summary Judgment, Item D, Ohio
Parole Board Guidelines Manual, at pages 70, 75. See also See Document No. 47, Defendants
Appendix to Motion for Summary Judgment, Item B, Department Policy No. 501-36, titled Parole
Board Hearing Policy, VI Procedure, Paragraph D, at (6) "… the hearing panel, with agreement of
all the hearing panel members, has the discretion to increase or decrease the applicable guideline
range by one range without further review…."
8
practice of finding an inmate guilty of new criminal behavior has not stopped; and
the problem Layne intended to resolve still festers in an even more insidious and
surreptitious form. Plaintiffs' § 1983 civil rights claims for violating the separation
of powers doctrine has been recently validated by Ohio's 10th Appellate District in
Ankrom. On January 12, 2005, the reach of this § 1983 civil rights violation was
extended significantly due to a new U.S. Supreme Court decision.
Blakely, in particular, prohibits the same kind of upward departures in
offense behavior outlawed by Layne. A common legal premise can be found in all
of these decisions. Layne unequivocally states that a parole panel has no authority
to depart from an Ohio court’s conviction. Blakely and Booker stipulate that neither
a judge nor a parole panel has authority to extend a prison term beyond the range
engaged by facts in the plea or the verdict of a jury. In Layne, Booker and Blakely,
the subjective exercise of discretion has been tightly confined and subordinated to
a factual context consisting of deeds proven to a jury's satisfaction or admitted.
Rule 15(d) connects § 1983 Separation of Powers Claim to Habeas Corpus
In April of 2003 when our Amended Complaint was filed, Plaintiffs were
limited to pursuing procedural challenges. No legal basis existed for a claim
seeking immediate release. The new Constitutional Rule created by Booker and
Blakely has elevated the rights for some of our Named Plaintiffs, affording them a
remedy – habeas corpus – which previously did not exist. Three Ohio appellate
9
decisions, Bray,21 Layne22 and Ankrom v. Hageman23 complement and reinforce
the claim created by Booker and Blakely. One more Supreme Court opinion,
Wilkinson v. Dotson,24 completes the picture by providing a secure foundation for
our procedural claims, where evidence supporting a habeas corpus claim has been
developed. Four years later, a legal basis exists for bringing a habeas corpus claim.
Fed. R. Civ. P. 15(d) [hereafter Rule 15(d)] permits filing a supplemental
pleading "setting forth transactions or occurrences or events which have happened”
since an earlier filing. The purpose served is to alleviate the need to commence a
new action when developments springing from the original action support a claim
which previously did not exist. These recent Supreme Court decisions Booker and
Blakely constitute occurrences or events within the meaning of Rule 15 (d).
New Habeas Corpus Claim Forms Part of Same Case or Controversy
Title 28, § 1367(a)25 of the U.S. Code merges the doctrines of pendant and
ancillary jurisdiction into the term supplemental jurisdiction. Supplemental
jurisdiction has been defined by statute to include all claims that are so related to
claims within the court's original jurisdiction that they form part of the same case
21 State ex rel. Bray v. Russell, 729 N.E.2d 359, 89 Ohio St. 3d 132 (Oh. 2000) [hereafter Bray.]
22 Layne, 97 Ohio St. 3d 456 (Oh. 2002).
23 Ankrom v. Hageman, 2005-Ohio-1546 (10th Appellate Dist. April 1, 2005).
24 Wilkinson v. Dotson, 125 S. Ct. 1242; 73 U.S.L.W. 4204 (2005) [hereafter Wilkinson].
25 In pertinent part, 28 U.S.C. § 1367 states: "in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution."
10
or controversy. This newly crystallized claim of habeas corpus is the direct lineal
and evolutionary descendant of Plaintiffs' 3rd and 4th causes of action in our
original complaint. Upon shedding its state law character, these claims continued
as Plaintiffs' 3rd and 4th claims in our Amended Complaint. Finding inmates guilty
of new criminal behavior has always been embedded in our complaint. For
Plaintiffs, this issue represents the primary driving force behind this litigation.
There is much more than just symmetry and commonality between Plaintiffs'
original claims and the habeas corpus claim sought to be added as a supplemental
pleading. In determining whether a Supplemental Pleading ought to be accepted, a
District Court is urged to examine two factual matters which collectively dictate
whether or not the new claim forms part of the same case or controversy for Article
III purposes.26 (1) Rights forming the substance of the supplemental pleading must
crystallize from a common nucleus of operative fact shared with claims in the
original action. (2) The expectation must be reasonable that that these newly arisen
claims would be determined with claims filed originally in one judicial proceeding.
Plaintiffs' habeas corpus claim is so inextricably intertwined with our § 1983
separation of powers claim (i.e. Third Cause of Action) and our Bad Faith claim
(i.e. Fourth Cause of Action), proving these § 1983 civil rights claims are an
indispensable prerequisite for establishing grounds for engaging habeas corpus.
26 U.S. Const. Article III, § 2.
11
Use of declaratory relief through § 1983 – via the finding these Parole Board
sentences are void – opens the door for the habeas corpus writ. Unless and until
this door is opened (i.e. a parole board sentence is declared void), habeas corpus
remains beyond reach. Stated differently, if this habeas corpus claim were to be
separated and brought elsewhere, it would still be necessary in this second forum
to raise our § 1983 civil rights claims prior to proceeding with this habeas claim.
Clearly, the basis for this new claim rises from a common nucleus of
operative fact shared with claims in the original action. Not only is the expectation
reasonable that these two claims would be determined together; it is actually
impossible to separate them from one another. Factors necessary for finding this
habeas corpus claim as part of the same case or controversy are fully satisfied.
When presented with new occurrences or events within the meaning of Rule
15(d), a District Court must weigh values of judicial economy, convenience,
fairness and comity in deciding to exercise jurisdiction over a supplemental claim.
The herculean task of duplicating evidence already filed with this Court at another
forum is clearly a factor tipping scales in favor of retaining jurisdiction over this
claim. The first two considerations, judicial economy and convenience, more than
lean – they collapse on the side of retaining jurisdiction. The third consideration,
fairness, also leans in favor of this court retaining jurisdiction. While the State has
bottomless resources, Plaintiffs have been pressed to their limit to present their
12
case in just one forum. The prospect of beginning another case of this dimension
would be prejudicial and possibly impossible for Plaintiffs. Finally, considerations
of comity do not come into play at this juncture.27 Our habeas corpus claim is
grounded in federal law. Its inclusion does not present any questions of state law.28
Creation of a New Constitutional Rule by Blakely and Booker
In 2004, the U.S. Supreme Court issued its Blakely decision. Ralph Blakely
was convicted of kidnapping his wife. Prior to Blakely, the phrase statutory
maximum sentence was universally regarded as the maximum penalty a judge
could impose under the general criminal statute. Washington State had a general
criminal statute and a crime specific statute setting forth a recommended standard
range of time for Blakely’s crime. His plea agreement engaged the standard range.
The general criminal statute carried a maximum sentence of 10 years. The more
specific Washington State statute defined a standard range for this crime of 49 to
53 months. By a preponderance of evidence, the Washington trial court found that
Blakely committed the worst form of this crime, and exercised its discretion to
issue a sentence longer than the standard range. Blakely appealed and the U.S.
Supreme Court reversed. Blakely stands for the proposition that unless a factual
27 We do appreciate how comity considerations come into play when we address exhaustion of state
remedies as a precondition for engaging habeas corpus, discussed later in this brief.
28 Likewise, reasons for declining jurisdiction in 28 U.S.C. § 1367(c) do not apply. This statute is
concerned with federal courts wading deeply into state claims. State claims are not engaged.
13
finding has been found true by a jury beyond a reasonable doubt, or acknowledged
by the criminal defendant in the plea agreement, the maximum sentence is the
upper limit of the standard range of 53 months and not ten years.
The new sentencing rule announced in Blakely was significantly elucidated
and expanded in Booker. Blakely resolves a conflict between a general statutory
scheme and the standard range of a crime specific sentencing statute. However,
very few states follow Washington State's model and incorporate a standard range
of time into a criminal statute administered by a judge. Typically, standard range
sentencing terms are established via Executive Branch or Legislative Branch rule
making authority and applied by administrative agencies such as Ohio’s Adult
Parole Authority and the Federal Sentencing Commission. Booker addressed the
issue of a crime's standard range guideline formulated through delegated Executive
or Legislative rule making authority and then applied by an administrator in the
context of the Federal Government's sentencing guidelines.29 The Court held:
"Any fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by
the defendant or proved to a jury beyond a reasonable doubt."30
Blakely and Booker form a new Constitutional Rule [hereafter New
Constitutional Rule] applicable to states as well as to the federal government.
29 Booker, slip opinion at p. 1.
30 Booker, slip opinion at p. 20.
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Parole Guidelines Viewed Through New Constitutional Rule
Current Parole Guidelines31 adopt a matrix sentencing approach. Sentences
are determined by two factors on a grid; (1) the offender's criminal history32 and
(2) the nature of the offender's offensive behavior or crime resulting in their current
incarceration.33 The intersection of these factors on a chart dictates a guideline
range with a minimum and maximum terminus. Inmates are assigned to a guideline
range after serving 70% of the minimum sentence established by the trial court.34
Upward Departures in Offense Categories
After considering core questions of guilt and innocence, parole decisionmakers
may substitute their judgment for an Article IV Ohio Judge.35 This
authority is conferred by the following Parole Guideline provisions:
31 The 1998 Parole Guidelines have been revised twice, in 2000 and in March of 2003 after the
Layne decision. Hereafter, all references are to the 1998 Parole Guidelines as amended. These
Parole Guidelines are purely the product of delegated authority to Director Wilkinson, because
they were never submitted to the General Assembly's Joint Committee on Agency Rule Review
pursuant to R.C. §111.15(D)(1) and (4) and they do not appear in Ohio’s Administrative Code.
These executive rules were, however, validated by Ohio’s Supreme Court in its Layne decision.
32 This score is reported on a form known as the Criminal History / Risk Score [hereafter "Risk
Score"]. See Document No. 83, Defendants' Reply, supported by Defendants' Appendix to
Defendants' Memorandum in Opposition, Item A, Second Affidavit of Richard Spence [hereafter
2nd Affidavit of Richard Spence], and attached exhibit 8.
33 On a document known as the Ohio Parole Board Decision, the offensive behavior score is
calculated and then merged with the Risk Score to produce a guideline range at the intersection of
these scores on a grid. This form is known as the Ohio Parole Board Decision. See Document No.
83, 2nd Affidavit of Richard Spence, attached Exhibit 10 and Document No. 207, Plaintiffs Exhibit
110 [comparing pre-Layne and post-Layne forms.].
34 This is the only scheduled parole review that the Parole Board does not control.
35 See Document No. 47, Defendants Appendix to Motion for Summary Judgment, Item B,
Department Policy No. 501-36, titled Parole Board Hearing Policy, VI Procedure, Paragraph D, at
(6) "… the hearing panel, with agreement of all the hearing panel members, has the discretion to
increase or decrease the applicable guideline range by one range without further review…."
15
“The guidelines set forth the customary range of time to be
served before release for various combinations of offense
(seriousness) and offender (risk of recidivism) characteristics. The
Parole Board may depart from the applicable guideline range for
"good cause" provided the specific written reasons for the departure
are recorded and a copy given to the offender. (at p. 70)
“The Parole Board intends that the guideline ranges apply to
“heartland” cases, the typical cases that embody the conduct and
circumstances that fall within the particular guideline range. In an
atypical case, a case to which a particular guideline linguistically
applies but where the conduct or circumstances differ significantly
from the norm in an important way, the Board may depart from the
guideline range.” (p. 70) 36 [Emphasis added.]
"(a) In General. The Parole Board may render a decision
outside the guidelines for good cause provided that the offender is
furnished, in writing, with a specific explanation for such action. It is
in the Parole Board's discretion to render a decision above or below
the guidelines provided that there exists an aggravating or mitigating
factor(s) sufficient to warrant a decision and provided the specific
reasons for the decision are adequately explained in the notice of the
Parole Board's action…"37 (p.75) [Emphasis added.]
It is axiomatic that substitution of a more serious crime will engage a longer
guideline range. These rules violate the New Constitutional Rule in that the inmate
is forced to serve time in a guideline reserved for a crime never sanctioned by a
trial court, acknowledged in a plea or proven beyond a reasonable doubt to a jury.
Imposition of Bad Time
Parole Guidelines authorize imposition of bad time, referring to time
36 See Document No. 47, Defendants Appendix to Motion for Summary Judgment, Item D, Ohio
Parole Board Guidelines Manual, at p. 70.
37 See Document No. 47, Defendants Appendix to Motion for Summary Judgment, Item D, Ohio
Parole Board Guidelines Manual, at p. 75].
16
assigned for disciplinary infractions committed in prison. Fields 5 and 6 of an Ohio
Parole Board Decision form record disciplinary infractions.38 Field 7 of an Ohio
Parole Board Decision form requires the time assessed for fields 5 and 6 to be
added to the guideline range set out in field 3.39 In short, an inmate begins to serve
time for disciplinary violations after they serve every day of the guideline range for
their crime. Necessarily, bad time falls outside the guideline range and violates the
New Constitutional Rule. By their very nature, violations of prison rules can never
be acknowledged in a plea or proven beyond reasonable doubt to a jury.
Criminal History Risk Scores
An inmate’s Criminal History Risk Score is designed to gauge recidivism.40
Six factors collectively produce a Risk Score of 0 to 8, with 0 indicating no prior
criminal history and 8 indicating the highest recidivism score. The product of a
Risk Score and Offense Behavior score produces a guideline range.
The New Constitutional Rule contemplates one exception. A prior felony
conviction does not have to be acknowledged in a plea or proven beyond a
reasonable doubt to a jury. These Parole Guidelines require moving an inmate to
38 See Plaintiffs' Exhibit 111, titled Ohio Parole Board Decision Sheet. Field 5 is reserved for
infractions involving a new felony. Field 6 covers the full range of disciplinary infractions never
resulting in a conviction, primarily misdemeanor and minor offenses.
39 Field 7 reads; "Aggregate Guideline Range is: ___ months (#3 + #5 + #6)." Field 3 in this
equation is the guideline range dictated by offensive behavior and Risk Scores. In words and in
symbols, field 7 states that the time assessed for discipline is to be added to the guideline range.
40 Document No. 94, Appendix to Memorandum in Opposition to Plaintiffs, 2nd Affidavit of
Richard Spence, Defendants' Exhibit 8, Criminal History Risk Score.
17
the next horizontal slot – adding 1½ years for most of our Named Plaintiffs – when
there are three or more prior convictions.41 However, the term prior conviction
contemplates more than just an adult felony conviction. If Parole Board Guidelines
alter or modify cases previously deliberated and determined to be something other
than an adult felony by an Ohio judge, a line has been crossed. In these cases, the
Parole Board is considering core questions of guilt or innocence for new felony
behavior and substituting its judgment for either a judge or the legislature. These
Parole Guidelines count every D.U.I. conviction as equivalent to a prior felony
conviction in computing a criminal history risk score.42 Similarly, every juvenile
conviction carries the same weight as an adult felony conviction.43 These are not
adult felony convictions as contemplated by the Booker and Blakely rulings and,
accordingly, these rules violate the New Constitutional Rule.
The Multiple Sentence Rule
The 1998 Parole Guidelines include a multiple separate offense rule.44 If two
or more unrelated crimes are committed at the same time or two or more identical
41 See Document No. 94, Appendix to Memorandum in Opposition to Plaintiffs, Item A, 2nd
Affidavit of Richard Spence, Defendants' Exhibit 8, Criminal History Risk Score, Item A [1 or 2
prior felony convictions equal 1 point, three or more are required for a weight of 2 points.].
42 See Document No. 47, Appendix to Motion for Summary Judgment, Item D, Ohio Parole Board
Guidelines Manual, Part C. Criminal History /Risk Score, A.3 (a) for D.U.I. convictions at p. 61.
43 See Document No. 47, Appendix to Motion for Summary Judgment, Item D, Ohio Parole Board
Guidelines Manual, Part C. Criminal History /Risk Score, A4 for juvenile convictions at page 61.
44 See Document No. 47, Appendix to Motion for Summary Judgment, Item D, Ohio Parole Board
Manual, Part C, Subchapter A – 2, at pages 53 to 55. Ohio’s rule is patterned after the Federal
Sentencing Guidelines. See Federal Guidelines 28 CFR §2.20 U.S. Parole Commission Offense
Behavior Severity Index, Chapter Thirteen, Subchapter A General Notes, at 2.
18
crimes occur at different times, a vertical one range departure can be made on the
offense behavior score.45 Like the computation of bad time, computation of the
multiple separate offense rule occurs outside the structure of the guideline range.
Hence, the time required by this rule begins only when the last day required by the
guideline range has been satisfied.
When our Named Plaintiffs were sentenced, the multiple separate offense
rule did not exist. Because the potential impact for continued incarceration due to
another unrelated crime or for an identical crime committed earlier or later were
never acknowledged in a plea or proven beyond reasonable doubt to a jury, Ohio’s
multiple separate offense rule as applied (i.e. invoked years into the sentence and
adding time beyond the guideline) violates the New Constitutional Rule.
Adding Time for Any Other Factors the A.P.A. Deems Relevant
After Layne, the Parole Board changed their Parole Board Decision form.46
Field 9 now allows time to be assessed for any other factors the APA deems
relevant.47 In practice, the term any other factors the APA deems relevant is a
euphemism for aggravating factors connected to the crime, previously listed under
field 8 prior to the Layne decision.48 Answers entered for these subjective queries –
aggravating factors previously and any other factors the APA deems relevant
45 As in the Federal rule, crimes must carry a minimum point value to justify an upward departure.
46 See Document 207, Plaintiffs' Exhibit 111, titled Ohio Parole Board Decision Sheet.
47 See Document 207, Plaintiffs' Exhibit 111, titled Ohio Parole Board Decision Sheet., at p. 2 # 9.
48 See Document 207, Plaintiffs' Exhibit 111, titled Ohio Parole Board Decision, at p. 2, # 8.
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__________________
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
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