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currently – operate as a de facto sentencing enhancement. Like bad time and the
multiple separate offense rule, aggravating factors and / or any other factors the
APA deems relevant are not embedded in the guideline range. Consequently, this
time is added after every day of the guideline range has been served, thereby
violating the New Constitutional Rule.
Policy 501 – 36, Parole Eligibility Denied to Security Classifications 4 & 5
Parole consideration is categorically denied to all inmates with a maximum
or high maximum security classification, presently designated as levels 4 and 5 on
a scale beginning with 1.49 This policy ignores and overrides the trial court
sentence by adding increments of time for reasons that have nothing to do with the
underlying criminal offense. When inmates in classifications 4 and 5 are required
to do time beyond their guideline, this policy violates the New Constitutional Rule.
Recent Ohio Appellate Decisions
State ex rel Bray
In Bray,50 Ohio’s Supreme Court struck down R.C. §2903.13, which allowed
the Parole Board to extend the prison sentence of a New Law inmate up to three
49 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.
…Release at any such projected release date shall be conditioned upon the inmate receiving a
security classification less than maximum …"
50 State ex rel Bray v. Russell (2000), 89 Ohio St. 3d 132, 729 N.E.2d 359.
months for violations committed in prison.51 With the wisdom of hindsight, Bray
stands as the first significant Ohio Supreme Court decision circumventing Parole
Board authority. Bray held that this statute, R.C. §2903.13, would:
"enable the executive branch to prosecute an inmate for a crime, to
determine whether a crime has been committed, and to impose a
sentence for that crime. This is no less than the executive branch's acting
as judge, prosecutor and jury. R.C. §2967.11 intrudes well beyond the
defined role of the executive branch as set forth in our Constitution." 52
Bray applied to New Law inmates. If bad time was unlawful for a New Law
sentence, it had to be unlawful as well for Old Law inmates. The premise of acting
as prosecutor, judge and jury applies regardless. Unfortunately, there was an
enormous practical difference. Adding time to a New Law sentence would probably
require serving time beyond the court's maximum sentence. The time added for an
Old Law inmate – typically 6 months but occasionally years – was never enough to
penetrate the Old Law maximum sentence ceiling. Aware of this practical loophole,
the Parole Board tenaciously continued adding bad time after Bray was decided.
The New Constitutional Rule lowers the ceiling for an Old Law inmate’s
sentence to the point that it can also be penetrated by bad time. Suddenly, Old Law
inmates stand on the same ground as New Law inmates, and the practical device
permitting the Parole Board to evade Bray’s consequences has vanished.
51 State ex rel. Bray v. Russell (2000), 89 Ohio St. 3d 132, at 135.
52 State ex rel. Bray v. Russell (2000), 89 Ohio St. 3d 132, at 135.
The Separation of Powers Doctrine served as Bray’s rationale. Blakely and
Booker rely upon the 6th Amendment.53 Still, all of these decisions reach identical
results. If an Executive Branch officer as in Bray – or a judicial officer as in Blakely
or the Federal Sentencing Commission as in Booker – effectively serves as judge,
jury and prosecutor and lifts the ceiling of a criminal sentence by adding any fact not
acknowledged in a plea or found to be true by a jury beyond a reasonable doubt, the
resulting sentence or fragment of a sentence is unconstitutional and void ab initio.
Layne v. Adult Parole Authority
For the first time, Parole Board discretion vis-à-vis our Named Plaintiffs was
restrained. Layne54 builds upon three suppositions:
(1) during an inmate's first hearing, "the Parole Board generally gives
an inmate a projected release date;55
(2) if the inmate does not receive a projected release date at their first
hearing, "that inmate is automatically scheduled for a parole
reconsideration hearing after ten years," [emphasis added] 56 and
(3) the projected release date "presumably falls within their applicable
guideline range.57
The logical inference drawn from these suppositions is that an initial parole
review ends either in a projected release date or another hearing scheduled ten
53 The U.S. Supreme Court could have used the separation of powers doctrine as its rationale instead
of the 6th Amendment. The two are closely related and its decision impacts the balance of powers.
54 Layne , 97 Ohio St. 3d 456 (Oh. 2002).
55 Layne, 97 Ohio St. 3d at 457.
56 Layne, 97 Ohio St. 3d at 458, footnote 1.
57 Layne, 97 Ohio St. 3d at 457-458.
years hence. Layne focuses upon the third item and the Parole Board's declared
latitude to "look beyond the offense of conviction to the circumstances surrounding
the offense and assign an offense category score higher or lower than that
applicable to the offense of conviction."58 Layne held:
"…that in any parole determination involving indeterminate
sentencing, the APA must assign an inmate the offense category score
that corresponds to the offense or offenses of conviction."59
Immediately preceding this holding, Layne states:
"We recognize that the APA has wide-ranging discretion in
parole matters. [citations deleted] However, that discretion must yield
when it runs afoul of statutorily based parole eligibility standards and
judicially sanctioned plea agreements."60 [Emphasis added.]
The words statutorily based parole eligibility standards can have only one
meaning. Just as the U.S. Congress validated guidelines for the Federal Sentencing
Commission patterned after criminal statutes, Ohio's Supreme Court validated
Ohio’s Parole Guidelines in precisely the same manner. Layne links these
guidelines to Ohio Revised Code sections defining crimes. In so doing, Layne has
served as a precursor for Booker and Blakely. All of these decisions stipulate that
the upper limit of the standard range applicable to the crime doubles as the
maximum amount of time that an inmate must serve for committing this crime.
58 Layne, 97 Ohio St. 3d at 458.
59 Layne, 97 Ohio St. 3d at 464.
60 Layne, 97 Ohio St. 3d at 464.
The words judicially sanctioned plea agreements echo sentiments of Bray.
The Ohio Parole Board has no authority to consider core questions of guilt or
innocence and substitute its judgment for the judgment of an Ohio judge.
Unequivocally, the Parole Board was acting ultra vires when it presumed to make
upward departures in offense categories. Despite this clear command from Ohio's
highest court, the Parole Board refused to rescind its authority to make upward
departures in its post-Layne edition of the guidelines issued in March of 2003.61
Ankrom v. Hageman62
Ohio’s Public Defender initiated a class action lawsuit in Franklin County.
The class consisted of all parole eligible inmates who pled guilty or no contest to
lesser or fewer offenses than indicted, thereby taking pleas and waiving their right
to a jury trial. This litigation engaged state issues exclusively, springing primarily
from the contract (i.e. plea agreement) executed between an inmate and the State.
The inmates argued that their plea agreement required the Parole Board to place
them in the guideline range engaged by their conviction and nowhere else. While
Layne settled the core issue, there were peripheral issues which survived Layne.
61 See Document No. 245, Appendix (Volume 2) to Opposition to Stay Proceedings, certified copy
of Motion for Summary Judgment filed in Franklin County Common Pleas, Case # 01 CV 02 15663
containing as an Exhibit Ohio Parole Board Guidelines Manual, 2nd Edition, April 1, 2000,
Revised March 28, 2003 [hereafter Document No. 245, Revised 2003 Parole Guidelines]. See also
Part D, Guideline Application Procedures, § 101 at p. 70, § 105 at p. 75, retaining this authority.
62 Document No. 262, Exhibit A, Ankrom v. Hageman, (April 1, 2005) [hereafter Ankrom].
One such issue concerned the width and breadth of Layne and whether or not
the Parole Board retained discretion to make an independent determination that the
inmate committed a distinct offense for which he was not convicted.63 This
reflected the Parole Board’s wide spread propensity to add years of additional time
after Layne for any other factors the APA deems relevant, citing primarily the final
sentence in Layne for support.64 The Ankrom trial court conceded that the Parole
Board could consider any and all behavior of an inmate in making its parole
determination, but it could not use any of this behavior to move an inmate to an
elevated offense category.65 The 10th Appellate District Court strongly concurred.
“Layne prohibits this procedure. In Layne, at the syllabus, the
Ohio Supreme Court held that the APA must assign an inmate the
offense category score that corresponds to the offense or offenses of
conviction. In cases such as the one described above [referencing
unindicted behavior the Parole Board found equivalent to kidnapping
occurring in the course of a rape conviction], the APA continues to
use offenses for which the inmate was not convicted to assign an
offense category. A plain reading of Layne would indicate that the
APA retains the discretion to consider the circumstances surrounding
the crime, such as a kidnapping to facilitate a rape, in making its
parole determination, but it may not use such activities for which the
inmate was never convicted to assign an offense category.”66
63 Document No. 262, Exhibit A Ankrom, Slip Opinion at p. 21.
64 Document No. 262, Exhibit A, Ankrom, Slip Opinion at p. 21. Layne’s last sentence reads: "We
further emphasize, as did the court of appeals in Randolph, that the APA, when considering an
inmate for parole, still retains its discretion to consider any circumstances relating to the offense or
offenses of conviction, including crimes that did not result in conviction, as well as any other factors
the APA deems relevant." Layne, 97 Ohio St. 3d at 464 [Emphasis added.]
65 Document No. 262, Exhibit A, Ankrom, Slip Opinion at p. 22.
66 Document No. 262, Exhibit A, Ankrom, Slip Opinion at p. 22.
Another peripheral issue raised in Ankrom involved whether or not the
Parole Guidelines usurped judicial authority, thereby violating Ohio’s separation of
powers doctrine. Three arguments were advanced in the Parole Board’s defense:
(1) it was impossible procedurally to usurp judicial authority since the trial court’s
authority ends when the inmate enters prison; (2) there is long standing precedent
vesting the Parole Board with exclusive discretion over parole release decisions;
and (3) the act of determining parole is not a judicial function, but purely executive
in nature.67 Under Ohio law, it is true that the executive portion of a sentence
begins and the judiciary’s authority ends when a prisoner enters a state prison.
The 10th Appellate District Court found this argument illogical on its face.
“Thus, although parole is within the powers of the executive
branch, such cannot possibly mean that the APA’s powers in this
regard are unfettered. Indeed, the Ohio Supreme Court has explicitly
recognized that the APA’s wide ranging authority and discretion over
parole matters must yield when they run afoul of statutory enactments
and contractual law. [Layne citation deleted.] The same must hold true
when the APA’s authority and discretion run afoul of the
constitutional doctrine of separation of powers.”68
Quintessentially, the 10th Appellate District Court found that the Parole
Board was usurping judicial authority.
“What the trial court in the present case found, in essence, was
that the APA was assuming the underlying “function” of the judiciary
by executing its own authority in the manner described. In making its
arguments herein, the APA needlessly focuses on when the authority
67 Document No. 262, Exhibit A, Ankrom, Slip Opinion at p. 28.
68 Document No. 262, Exhibit A, Ankrom, Slip Opinion at p. 28 – 29.
of the judiciary procedurally ends. When the authority of the judiciary
procedurally ends is not relevant to the present issue. Neither is the
procedural scope of its own “authority” relevant. Rather, what is
relevant to the present analysis is the underlying “function” the APA
assumed in executing its authority.”69
The 10th Appellate District Court found that the Parole Board’s guidelines
permitted the exercise of functions reserved exclusively to Ohio’s Judiciary and
violated Ohio’s separation of powers doctrine.70
U.S. Supreme Court Decisions Preceding New Constitutional Rule
Booker and Blakely have roots in three prior Supreme Court cases. In Jones
v. U.S.,71 a federal carjacking statute carried three different terms of imprisonment
depending upon harm to the victim. At first glance, these appeared to be sentencing
provisions. On further analysis, the Court concluded that harm to the victim should
be an element of the offense. Foreshadowing Booker, the Court ruled that its
holding was consistent with a "rule requiring jury determination of facts that raise a
sentencing ceiling" in a state or federal sentencing guidelines system. 72
In Apprendi v. New Jersey, 73 the defendant pled guilty to possession of a
firearm for an unlawful purpose, punishable by five to ten years in prison. After
69 Document No. 262, Exhibit A, Ankrom, Slip Opinion at p. 29.
70 Document No. 262, Exhibit A, Ankrom, Slip Opinion at p. 30.
71 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999) [hereafter Jones].
72 See Jones, 526 U.S. at 251 n. 1.
73 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), [hereafter Apprendi].
Apprendi's plea, the prosecution moved to enhance the sentence 10 to 20 years
pursuant to New Jersey’s hate crime statute. By a preponderance of the evidence,
the trial court found that he acted with the purpose of intimidating a person
because of their race and the sentence was enhanced. The Supreme Court reversed,
holding that the 6th Amendment does not permit a defendant to be:
"exposed ... to a penalty exceeding the maximum he would receive if
punished according to the facts reflected in the jury verdict alone. * *
* Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."74
In Ring v. Arizona,75 a jury acquitted Ring of premeditated murder but found
him guilty of felony murder. Under state law, the trial court had to make two
factual findings before sentencing a defendant to death, namely the existence of
one aggravating circumstance and a finding of no mitigating circumstances
sufficiently substantial to call for leniency. Without a jury, the trial court made
these factual findings and sentenced Ring to death. The Supreme Court reversed.
In accordance with Apprendi, Ring holds that the 6th Amendment did not allow:
"a sentencing judge, sitting without a jury, to find an aggravating
circumstance necessary for imposition of the death penalty. Because
Arizona's enumerated aggravating factors operate as 'the functional
equivalent of an element of a greater offense,' Apprendi, 530 U.S., at
494, n.19, ... the Sixth Amendment requires that they be found by a
jury." 76
74 Apprendi, 530 U.S. at 483, 490.
75 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), [hereafter Ring].
76 Ring, 536 U.S. at 609 [overruling Walton v. Arizona, 497 U.S. 639 (1990)].
These decisions paved the way for Blakely and Booker and collectively
created a new bright line for sentencing defendants. A prison term must be
supported solely by the jury's verdict or by the Defendant's admission of facts, and
no additional findings bearing upon duration of the sentence are permissible.
Application of New Constitutional Rule to Parole Guidelines
Plaintiff James Crawford received 7 to 25 years for Involuntary
Manslaughter. His crime engages Guideline 8 with a standard range of 5 to 7
years.77 Mr. Crawford served every day of this guideline plus another 5 years and
ten months when he came up for review on June 13, 2003. Mr. Crawford is a first
time offender and a model prisoner with no disciplinary violations listed on his
Parole Board Decision. Understandably, Mr. Crawford was anticipating a parole.
James Crawford's wife was murdered by his girlfriend. He was not present.
His sister, Scheila Hagan, was at the scene. Mr. Crawford was indicted for
aggravated murder. When Ms. Hagan refused to implicate her brother, the state
readily accepted his no contest plea to involuntary manslaughter. Nevertheless, the
Parole Board steadfastly maintains that James Crawford committed aggravated
murder, not involuntary manslaughter. At one parole board hearing, the interviewer
77 See Document No. 245, Revised 2003 Parole Guidelines, § 204 (C) [standard range for
Involuntary Manslaughter]. See also Document No. 215, Plaintiffs' Exhibit 440, Parole Board
Decisions Sheets dated 4-16-2003 and 6-13-2003, confirming Category 8 for Mr. Crawford's crime.
tried to resurrect the Aggravated Murder charge by making him confess to his
original indictment. Mr. Crawford refused to do so. Aggravated murder would
place Mr. Crawford in Category 13, which requires at least 25 years.
In 2003, James Crawford was given two Layne Reviews.78 At his Layne
review in April and again in June, parole was denied. At his latest hearing, the
letters tbd, standing for to be determined, appear in the field reserved for months to
serve until his next hearing. The page on the Department's web offender search
engine devoted to James Crawford does not give a date for a next hearing.79 James
Crawford's name does not appear on the recently issued Ankrom List.80 The true
meaning of tbd is quite ominous – sentenced indefinitely. In May of 2005 as this is
written, Mr. Crawford has served 14 years and 9 months, or 7 years and 9 months
above his maximum guideline range. He is three months shy of a guideline for his
crime which further requires kidnapping, any sex offense or aggravated arson.
Furthermore, Mr. Crawford has no idea when his next parole hearing will be
convened. And if a new hearing is granted, there is no guarantee that he will get
released. If corrective action is not forced upon the Parole Board, he could end up
serving the entire 25 years required for the dropped charge of Aggravated Murder.
78 See Document No. 215, Plaintiffs' Exhibit 440, Parole Board Decisions Sheets dated 4-16-2003
(titled rescind & rehear) and 6-13-2003 (titled Layne).
79 See / and enter his institution number A250754.
80 The Ankrom List refers to a listing of inmates entitled to new hearings as a result of the Ankrom
decision. On pages 38 and 39 of this list, where "Crawfords" are listed, and his name cannot be
Until recently, James Crawford could only request procedural relief in the
form of a new parole hearing conforming to Ohio law. In the Ohio Attorney
General's view, the scope of his challenge is limited to the constitutionality of the
procedures applied, and his relief is constrained to just a new hearing. Mr.
Crawford may not challenge the result of his hearing, and he cannot secure relief
from any particular finding.81 Within the maximum and minimum termini of an
Old Law sentence, Ohio's Attorney General considers the Parole Board's authority
to be absolute. As a Named Plaintiff, Mr. Crawford is already seeking a
declaratory judgment that his current Parole Board sentence is void. If this
declaratory judgment relief is granted and his current parole board sentence is
ruled a nullity, pursuant to the New Constitutional Rule, Mr. Crawford can
collaterally attack his Parole Board sentence and seek immediate release through
the writ of habeas corpus. Mr. Crawford's § 1983 civil rights action is the enabler,
establishing the factual basis for a habeas corpus claim.
Bray stipulates that the Parole Board cannot act as the judge, jury and
prosecutor for new criminal behavior. Layne stipulates that Mr. Crawford must be
assigned to the guideline matching his conviction, reinforcing a premise common
to both cases; an inmate cannot be prosecuted, convicted and sentenced by an
81 Hattie v. Anderson, 626 N.E.2d 67 (Oh. 1994) [hereafter Hattie]. This decision is primarily relied
upon by the Attorney General's Office for the principle that no Ohio court has the right to constrain
the unfettered discretion of the Parole Board. Layne and Ankrom have both eroded this premise.
Executive agency for new criminal behavior. Pursuant to Bray and Layne, Mr.
Crawford belongs in category 8 and nowhere else. Category 8’s ceiling of 7 years
doubles as the maximum amount of time that can be assigned for his crime.
Booker and Blakely stipulate that an inmate’s term of incarceration may not
be extended by any fact unless it is found true by a jury beyond a reasonable doubt
or admitted in a plea. Mr. Crawford has no bad time. Nevertheless, if he did have
bad time, Booker and Blakely prohibit the use of bad time to extend his sentence.
Mr. Crawford is not subject to the multiple separate offense rule; but if this rule did
apply, these federal decisions block its implementation. Finally, if Mr. Crawford's
security status is at levels 4 or 5, Booker and Blakely prohibit use of a security
classification for holding an inmate beyond their maximum guideline range.
In accord with the Ankrom decision of the Ohio 10th Appellate District, as
further construed and reinforced by Booker and Blakely, Mr. Crawford’s sentence
cannot be extended by an aggravating factor unless it has been acknowledged in a
plea or found to be true by a jury beyond a reasonable doubt. Every single pretense
used by the Parole Board for extending a sentence post-Layne is now prohibited,
and the most flagrant violations are now prohibited by both Ohio and Federal law.
At his hearing on June 13, 2003, Mr. Crawford was returned to his proper
guideline range. Once his matching guideline of 8 was recorded on this decision,
the Parole Board considered their duty finished. In its post-Layne decision-making,

the acronym tbd has been drafted into service to camouflage an unlawful upward
departure. After serving all of his guideline range, Mr. Crawford should have been
paroled in 2003. Instead, he was prosecuted, convicted and sentenced by the Parole
Board for involuntary manslaughter coupled with additional criminal conduct
never sanctioned by his trial court.82 This Parole Board sentence is void ab initio.
Under Ohio law, a void judgment is a mere nullity with no binding force.83
Regardless, if the Parole Board's authority continues to go unchecked, James
Crawford will soon enter and serve the guideline reserved for murder. His plight is
succinctly paraphrased in the merit brief for Wilkinson; “by scheduling him (i.e.
Rogerico Johnson) for a 2009 hearing, it ensured that he will not achieve release
before then."84 James Crawford is not an aberration. In one randomly chosen week
of client mail, four other clients received similar treatment.85
Only an Article IV Ohio Court can Issue a Valid Criminal Sentence
There is a clear distinction between challenging the judgment of an Article
82 See Document No. 245, Revised 2003 Parole Guidelines, § 204 (B). This category contemplates
discharge of a firearm from a motor vehicle, or intentional murder under severe impairment due to
drugs or alcohol, or committing this crime while attempting an aggravated robbery or burglary.
83 See Teri v. State, 159 N.E. 594, 597 (Oh. 1957) ["It if was a void judgment, it is a mere nullity,
which could be disregarded entirely, and could have been attacked collaterally, and the accused
could have been discharged by any other court of competent jurisdiction in habeas corpus
84 Brief for Petitioner to the U.S. Supreme Court, Case No. 03-287, at p. 22 (July 19, 2004), see
Appendix to Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’ Exhibit 1.
85 From March 19th to March 26th, 2005, we received Parole Board decisions for Greg Hunsaker A
227988, Dennis McCoy A 163239, Michael Dennis R 152569 and Edward Fadgen A226065. Each
client served every day of their guideline range. They all received years of additional time. Copies
of these decisions have been sent to opposing counsel for validation of authenticity, see Appendix to
Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’ Exhibits 6, 7, 8, 9.
IV trial court impressed with in personam and subject matter jurisdiction, and
challenging an ultra vires Parole Board judgment producing a fatally flawed
sentence.86 A void judgment may be challenged collaterally at any time.87 Courts
have inherent power to set aside void judgments.88 Even if there is evidence to
support a Parole Board sentence, our Constitution requires more than just proof.
In its self anointed position, Parole Board discretion is burdened by only a
duty to explain its decision. This raises another incurable flaw.
"It is a fundamental precept of the administration of justice in
the federal courts that the accused must not only be guilty of the
offense of which he is charged and convicted, but that he be tried and
convicted according to proper legal procedures and standards. In
short, it is not enough that the accused be guilty; our system demands
that he be found guilty in the right way. Accordingly, it is no answer
to the application of an erroneous standard of law that the evidence is
sufficient to support a verdict reached in accordance with the proper
standard of law." 89
The 14th Amendment has applied this precept to the states. Mr. Crawford
has never been found guilty of new criminal conduct the right way. As quoted
provisions from the Parole Board's Guideline Manual attest, an upward departure
86 People v. Bigley, 35 N.Y.S. 2d 130, 133-34 (N.Y. Sup. Ct. 1942) [There is a clear distinction
between attacking a final judgment and employing an obviously illegal judgment as the basis for a
life sentence. It would obviously be unjust and cruel to visit upon defendant an increased
punishment at a later date because of his failure or inability to vacate a void judgment. For such a
purpose time did not render valid that which was invalid."]
87 Slaven v. Slaven, 22 Ohio Op. 230 (Mont. Cty. Common Pleas, 1941), 1941 Ohio Misc. LEXIS
280, at p. 3 of slip opinion. ["The decree being void ab initio cannot be made valid by anything that
Defendant might do or fail to do, either before or after the matter was called to the attention of the
88 Moore v. Thorn, 277 N.Y.S. 544 (Sup. Ct. Erie County 1935).
89 Wilson v. United States, 250 F.2d 312, 324 (9th Cir. 1957).
can be made, provided that the offender is furnished, in writing, with a specific
explanation for such action. Parole Board due process reduces itself to simply a
self serving written explanation. Not surprisingly, manifest abuses have visited and
plagued Ohio’s post conviction process ever since these guidelines were adopted.
Support for Parole Board Sentencing Authority
Analyzed in a legal vacuum, it is perfectly clear that a Parole Board decision
overruling a trial court verdict is ultra vires and meaningless. James Crawford and
others similarly situated would politely disagree. From their vantage point behind
barbed wire and high walls, there is an abundance of reality attaching to these
parole decisions. Ohio’s Attorney General believes the Parole Board has authority
to make sentencing decisions. This position was argued – and lost – before the U.S.
Supreme Court.90 The Parole Board still believes it can exercise sentencing
authority. Provisions authorizing upward departures were untouched and intact for
the guideline edition issued after Layne was decided. Even Ohio's Public Defender
believes the Parole Board’s authority is final and cannot be challenged in court.
Systematically and methodically, Layne has become a faint apparition.91 For
90 Brief for Petitioner Reginald Wilkinson to the U.S. Supreme Court, Case No. 03-287, pp.’s 20-22,
see Appendix to Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’ Exhibit
91 See Document No. 250, Amici Brief for Respondents, Wilkinson v. Dotson, Case # 03-287, pp.’s
16 to 21. [“Layne’s last sentence has been separated from its context and given a literal
interpretation. In lieu of upward departures, months are added for aggravating factors. By adding
time for reasons purportedly grounded in Layne, the Parole Board circuitously acquires a license to
do precisely what Layne prohibited. For 2nd and later reviews post-Layne, the matrix grid has been
Parole Board purposes, the act of referencing a matching guideline on a decision
form completely appeases Layne. Under this ridiculous construction, Ohio’s
Supreme Court has no desire to influence a parole review's result; the Court’s
interest is confined to obscure details relating exclusively to filling out its form.
In trial court decisions, one would assume that Layne and Ankrom would end
the practice of elevating form over substance. The demise of this deduction is very
premature. The tenacity of the Ohio Attorney General's legal juggernaut, buttressed
by an affidavit from the Parole Board’s Chief of Quality Assurance, should not be
underestimated, particularly when there is only an inmate pro se affidavit blocking
their way. Indeed, there is unpublished appellate authority in the same Appellate
District issuing the Ankrom decision supporting a form over substance position.
Darryl Smith received 8 to 35 years for crimes committed in 1983 and
1986.92 Paroled in April of 1991, he returned to prison 6 months later. Mr. Smith is
a technical parole violator and belongs in offense category 1, reserved for inmates
violating their parole but not committing a new crime.93 Its maximum ceiling is 18
disemboweled because guideline boundaries no longer function as benchmarks for time-served.
Charging, convicting and sentencing an inmate for new criminal behavior, the practice outlawed by
Layne, continues under a new form of ultra vires authority – simulating the sentencing hearing
conducted by the Judge.” Internal references to footnotes and supporting authorities deleted.]
92 See State ex rel. Smith v. Ohio Adult Parole Auth., 2004 Ohio 3700 / 2004 Ohio App. LEXIS
3329 (10th Appellate District Ct. of Appeals 2004), [hereafter State ex rel. Smith], Appendix to
Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’ Exhibit 2.
93 See Document No. 245, Revised 2003 Parole Guidelines, Part E, §101, Reparole Guidelines, "The
following guidelines are applicable to offenders who have returned to prison for parole violation.…
(a) Treat an administrative violation (i.e. technical parole violators) as a Category 1 offense."
months. The Parole Board placed Mr. Smith in Offense Category 4 which matches
his conviction and requires, at most, 56 months.94 After serving 189 months [15¾
years], Mr. Smith initiated litigation in 2003, seeking to be placed in Offense
Category 1. His previous 189 months of service were apparently immaterial, for it
is never discussed. Equally disturbing, nobody wonders why Mr. Smith is still in
prison. Supported by a Richard Spence affidavit advancing the Parole Board view,
Mr. Smith’s court ruled; "Given that relator does not claim that category four fails
to correspond to his offenses of conviction, relator has no claim under Layne." 95
Ohio's Court of Claims has a hands-off policy regarding cases seeking
classification pursuant to Layne. Instead of appreciating how an erroneous offense
score can translate into unlawful prison term, the Court of Claims analogized this
to a security status classification, ruling that "insofar as appellant contests the
offender classification in which he was placed, it is well-established that the Court
of Claims will not interfere with the classification and placement of prisoners."96
Even the Ohio Public Defender's Office supports these parole decisions.
After the Booker decision had been well publicized, Attorney Wendie Gerus wrote:
"You are correct that under the Layne decision, the Parole
Board is not permitted to determine your offense category based on
94 Mr. Smith was initially placed in Category 7. The move to Category 4 was a concession to Layne.
95 State ex rel. Smith, Slip Opinion at p. 10.
96 Troutman v. Ohio Dep't of Rehab., 2005 Ohio App. LEXIS 304 [10th Dissect.], slip opinion p. 8,
see Appendix to Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’ Exhibit
offenses other than those for which you have been convicted.
However, in spite of that decision, the Parole Board is still entitled to
consider aggravating factors in determining the exact amount of time
you should serve. Essentially, with an old law indefinite sentence,
there is never a right to be released on parole after a certain portion of
your sentence. The only right you have is to be released on your max
date. There is no appeal to a court of law from a Parole Board
decision; while you could write a letter to the Chair, Gary Croft, it is
highly unlikely this would make any difference in the outcome of
your case."97
Ohio's Attorney General, the Parole Board’s Chief of Quality Assurance and
Ohio's Public Defender concur. Inmates have no remedies through Ohio courts.
Engaging Habeas Corpus Relief 28 U.S.C. § 2241
Mr. Crawford and all similarly situated Plaintiffs are held in Ohio prisons.
Plaintiffs are primarily engaging § 2241,98 because their claims arise from the
execution of a sentence, as opposed to the imposition of a sentence. The 3rd prong
of § 2241(c)(3)99 applies to our facts. Because our Named Plaintiffs are state
prisoners, they are also subject to the procedural requirements of § 2254.100
Before federal relief can be granted, there are comity considerations,
97 Letter from Wendie Gerus, Legal Services Attorney, Office of the Ohio Public Defender to
Dennis McCoy, March 7, 2005 and Mr. McCoy’s Ohio Parole Board Decision dated August 9,
2004, see Appendix to Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’
Exhibit 6. This letter has been sent to opposing counsel for validation.
98 28 U.S.C. § 2241.
99 28 U.S.C. § 2241 (c) (3) " (a prisoner) is in custody in violation of the Constitution or laws or
treaties of the United States,…"
100 28 U.S.C. § 2254. See Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004). "… a habeas petition
filed by a state prisoner in custody pursuant to the judgment of a state court is subject both to § 2241
and to § 2254, with its attendant restrictions. Thomas v. Crosby, 371 F.3d at 785.
statutory qualifications and substantive bars to overcome. Comity considerations
and statutory qualifications consist of: (1) the propriety of combining a habeas
claim with a civil rights claim; (2) a 1 year jurisdictional statute of limitation for
filing a habeas claim and; (3) an exhaustion of state remedies requirement.
Substantive bars include a finding that there is an unreasonable application of
clearly established Federal law as determined by the U.S. Supreme Court.
Propriety of a Habeas Corpus Class Action
The Writ of Habeas Corpus typically applies to one prisoner. However, if
the relief sought can be of immediate benefit to a large and amorphous group, the
class action is appropriate.101 More than half of our Plaintiffs are now serving time
for a void Parole Board sentence. None of these Plaintiffs have been found guilty
of this criminal behavior the right way. These inmates form a large and amorphous
group that can benefit immediately from the relief afforded through habeas corpus.
Combining § 1983 Civil Rights Claim with Habeas Corpus Claim
The general rule is that when an inmate challenges "the very fact or duration
of his physical imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from that imprisonment, his sole
federal remedy is a writ of habeas corpus.”102 This holding is from Preiser. As
interpreted by Ohio’s Attorney General, Preiser really means that if one claim
101 See Mead v. Parker, 464 F.2d 1108, 1112-13 (9th Cir. 1972);
102 Preiser v. Rodriguez, 411 U.S. 475, at 499 (1973 ), [hereafter Preiser].
seeks immediate release, the habeas corpus prayer automatically swallows up all
other forms of relief and the proceeding must be conducted exclusively in habeas
corpus. There is one major problem with this premise. You cannot find this
principal in Preiser. Indeed, Preiser supports the opposite rule.
"If a prisoner seeks to attack both the conditions of his
confinement and the fact or length of that confinement, his latter
claim, under our decision today, is cognizable only in federal habeas
corpus, with its attendant requirement of exhaustion of state remedies.
But, consistent with our prior decisions, that holding in no way
precludes him from simultaneously litigating in federal court, under §
1983, his claim relating to the conditions of his confinement." 103
[emphasis added.]
Preiser began as a lawsuit bringing both a habeas corpus and a civil rights
claim and it ended as a lawsuit bringing both a habeas corpus and a civil rights
claim. The convening judge assigned the task of implementing the Supreme
Court's Preiser decision quoted this passage – adding emphasis to simultaneously –
before granting Plaintiffs' Motion to restore § 1983 claims, stating; "Accordingly,
there is no doubt that plaintiffs are free to press their § 1983 claims."104
If a Right Exists Without a Remedy, in Practice, There Is No Remedy
Preiser was decided over 30 years ago. Experience teaches us that general
rules, while good for establishing a beginning point, virtually never steer a straight
103 Preiser, 411 U.S. at 499. See also Jones v. Shankland, 800 F.2d. 77 (6th Cir. 1986) [Oh. N. Dist.]
104 Sero. v. Preiser, 372 F. Supp. 660, 662 (D.C. S. N.Y. 1974).
course once the vagaries of litigation are encountered. The habeas corpus remedy
is shallow and customized to suit one situation – the release of a person unlawfully
detained. For the judiciary, it is unthinkable to possess a right to relief in theory
but, in practice, there is no remedy. Nevertheless, this is precisely the predicament
confronted by one Federal District and one Federal Appellate Court presented with
the argument that an inmate is barred by Preiser and its progeny from asserting a
habeas corpus claim along with a civil rights claim to a common nucleus of facts.
Such a rule would forever deny application of the remedy afforded through habeas
corpus even though the right to relief had been established via a civil rights claim.
Plyler v. Moore
The 4th Circuit confronted just such a case.105 South Carolina's legislature
passed a law in 1983 giving inmates a mandatory right to serve their last six
months on furlough. In 1993, an amendment to this statute made the program
permissive and applied it retroactively. Georgia's Supreme Court found no ex post
facto violation. Nevertheless, inmates brought a class action lawsuit under § 1983,
arguing that the 1993 statute violated the federal ex post facto clause. The District
Court concurred. On appeal, the state argued that the District Court lacked subject
matter jurisdiction due to the Rooker-Feldman doctrine.106
105 Plyler v. Moore, 129 F.3d 728 (4th Cir. 1997), [hereafter Plyler].
106 This doctrine states that a lower federal court lacks jurisdiction to review a state court decision.
Habeas corpus is an exception, conferring jurisdiction over the claim. See Plyler, 129 F.3d. at 733.
South Carolina inmates were not challenging the validity of their convictions
or sentences. It was evident from a plain reading of their complaint that they were
challenging the legality of their confinement for the final six months and, pursuant
to Preiser, habeas corpus was the proper avenue.107 It was equally obvious that
declaratory and injunctive relief would not be available if they pursued this action
solely under the habeas corpus statute. Relief already validated by the District
Court – namely a finding that their rights had been violated under the ex post facto
clause – would linger forever beyond reach if habeas corpus was their sole federal
remedy. Without hesitation, a unanimous panel in the 4th Circuit affirmed the trial
court decision and, in so doing, ratified applying the remedy afforded by a § 1983
civil rights claim and the remedy of habeas corpus to an identical matrix of facts.
" We hold that Supreme Court and circuit precedent obligates
us to declare the retroactive application of the 1993 amendment to §
24-13-720 to prisoners serving sentences of less than life
imprisonment for crimes committed between the enactment of § 24-
13-720 in 1983 and its amendment in 1993 unconstitutional as
violative of the Ex Post Facto Clause of the United States
Constitution. We also hold that under Preiser, an action asserting
entitlement to release from physical confinement properly is
considered in habeas corpus…."108 [Emphasis added.]
Death Row Prisoners of Pennsylvania
107 Adding a habeas corpus claim was necessary to engage the Rooker Feldman doctrine exception.
108 See Plyler, 129 F.3d. at 736. Because the claim sounded in habeas corpus, subject matter
jurisdiction was sustained.
In Death Row Prisoners,109 Plaintiffs were prisoners scheduled for
execution. A 1996 act of Congress provided an inducement to states to provide
funding for competent counsel in capital cases.110 If a state passed a law engaging
this federal statute, the deadline for a federal habeas corpus claim was reduced
from 1 year to 180 days. A class action was initiated under § 1983 seeking
declaratory and injunctive relief; because Pennsylvania officials refused to disclose
whether or not Pennsylvania engaged this statute and was obligated to provide
enhanced funding.
The State filed a Motion to Dismiss, citing Preiser and asserting in part that
the inmates must pursue the relief they seek through the habeas corpus statute
exclusively. 111 Although Plaintiffs were not challenging their own convictions or
sentences, the state argued that this litigation was clearly a prelude to or related to
future litigation where these inmates would challenge their detention. The District
Court’s published decision thoroughly exposed the fallacy behind this argument.
"The claims and remedies sought herein are not precluded
simply because they are "related to" or are a "prelude" to habeas
litigation. … Defendants fail to explain exactly how any prisoner
could actually use habeas corpus to vindicate the rights asserted in
this action or to obtain the relief sought herein. A plaintiff cannot file
an individual habeas writ requesting the declaratory and injunctive
relief sought in the instant action. Either a prisoner will have to file
109 Death Row Prisoners of Pennsylvania v. Ridge, 948 F. Supp. 1258 (D.C. Eastern Pa. 1996)
[hereafter Death Row Prisoners].
110 The Antiterrorism and Effective Death Penalty Act of 1996, codified as 28 U.S.C. §§ 2241-2256.
111 Death Row Prisoners, 948 F. Supp. at 1272.
within 180 days "to play it safe" as Defendants suggest, or file within
the one-year period and run the risk that he guessed incorrectly that
Pennsylvania was not an opt-in state and forfeit his right to habeas
corpus. If Plaintiffs were forced to raise the instant claim within the
context of a habeas proceeding, they would in effect be forced to
concede the point in order to contest it."112
Likewise, Mr. Crawford cannot prove that he has been prosecuted, judged
and sentenced to a crime never proven in court without access to declaratory and
injunctive relief afforded by § 1983. Without this relief from a § 1983 claim, his
habeas corpus claim will be summarily dismissed for lack of merit.
Once again in Death Row Prisoners, the remedy afforded by § 1983 was
joined to the habeas corpus remedy and applied to a common set of facts.
"... Nothing in the habeas statutes, including the 1996 Act,
describes how a prisoner can secure a determination as to which of the
two schemes apply to his state and, for this reason, this § 1983 action
is not "inconsistent" with any preferred mechanism in the habeas
"In sum, Plaintiffs have persuasively demonstrated that the
habeas statutory framework does not preclude Plaintiffs from
pursuing relief through a § 1983 action."113
Like inmates in Plyler, Plaintiffs are not challenging their court convictions
or sentences. Unlike the inmates in Death Row Prisoners, our Plaintiffs are not
planning to challenge their convictions or trial court sentences in the near future.
Like the ex post facto claim in Plyler and the Due Process claim in Death Row
112 Death Row Prisoners, 948 F.Supp. at 1273.
113 Death Row Prisoners, 948 F.Supp. at 1273.
"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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