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Old 05-24-2005, 12:30 PM
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Default A update from the Sirak old law inmates case

NORMAN L. SIRAK
ATTORNEY AT LAW

May 25, 2005

To : Clients and Sponsors

From : Norman Sirak

Re : Progress Report for May 25, 2005

Along with this Progress Report, we are also distributing two very important filings.

The first filing provides the legal basis for adding Habeas Corpus claims to our existing Civil Rights Claims. This is long, about 40 pages.

The second filing is a supplemental pleading. Using representative clients, we outline the different situations which can engage the remedy of habeas corpus – immediate release.

Understanding the Brief and Pleading

There is a key sequence established in the brief, critical to the link between Habeas Corpus and Civil Rights. If you look carefully at the Supplemental Pleading, you will find this sequence repeated in each of the 12 representative clients discussed. This is the sequence of events.

(1) We begin with the facts of a client, which include their trial court sentence, their guideline range and their treatment by the Parole Board.

(2) We demonstrate how the Parole Board is either performing the function of a judge, or exercising authority never conveyed to them, or exercising authority actually prohibited by the legislature. In all of these cases, they are violating the Separation of Powers Doctrine.

(3) The violation of this Separation of Powers Doctrine has placed the inmate in a sentence lacking legitimacy, and therefore ripe for challenge.

(4) Because the sentence is unlawful, their continuing incarceration is unlawful and they are candidates deserving the relief afforded by Habeas Corpus.

The order and link between these factors are the critical ingredients for combining Civil Rights and Habeas Corpus claims to the same identical facts. This filing has been in the works since mid-February. This opens an all new front and changes completely how the back end of this litigation might unravel. Instead of everyone going back for parole hearings held in conformity with our federal decision – we still retain this prospect – but, we add the prospect of our federal court simply ordering large numbers of Plaintiffs to be released.

The 12 Representative Clients Qualifying for Habeas Corpus

Just as we did in our pleading two years ago for monetary damages, we have used twelve clients to illustrate the different situations which qualify for this relief.

(1) James Crawford belongs in Offense Category 8. He has served every day of offense categories 8, 9 and very shortly 10. Because Mr. Crawford is serving time beyond his guideline, he is qualified for immediate release.

(2) Phillip Jovanovic was convicted of Murder. He has a 15 to Life sentence, but he belongs in an offense category with a cap – in his case Category 12. Mr. Jovanovic served every day of this guideline and recently received a 40 month continuance. He is entitled to immediate release.

(3) Thom Hoffman was convicted of Murder in the First Degree under former R.C. 2901.01. At the time, if you formed the intent to kill someone just an instant before doing so, this qualified as a premeditated state of mind to murder. The Supreme Court struck down this statute in 1973. In 1974, Ohio’s statute for Aggravated Murder was changed and now requires prior calculation and design. The Parole Board insists upon placing Mr. Hoffman in the category for Aggravated Murder. Because the elements of Mr. Hoffman’s crime now match Murder, he should be in category 11. Since he has served 30 years, he is entitled to immediate release. These facts apply to any crime, if the elements have changed since the time of conviction.

(4) Cecil Allen’s matching category is 8. The Parole Board has used crimes that were to run concurrent with his original Aggravated Robbery offense – namely felonious assault charges from the Lucasville riot – consecutive to this robbery conviction. The multiple separate offense rule has justified moving him to Category 11. Mr. Allen represents everyone out of their guideline because of the multiple separate offense rule. He also represents clients that have previously filed for habeas corpus relief. These second applications must be approved by a three judge appellate panel before they can proceed.

(5) Richard Dixon was convicted of murder in 1980. He was paroled in 1996. In 1999, he returned to serve a one year sentence as a New Law inmate. The Parole Board has aggregated his old law and new law sentences, and given him six more years from his old law sentence. Because he has served every day of his new law crime, he is entitled to immediate release.

(6) John Summers case is like Richard Dixon, with one difference. Mr. Summers has had his old law and new law sentences aggregated, but he is still serving time on his new law sentence. Mr. Summers will qualify for immediate release once he has served every day of his new law sentence.

(7) Brian Nemeth represents two categories. In the first place, he has served every day of his guideline range and he is now serving time for rules infractions. He represents all inmates that have served their guideline range and are now incarcerated because of rule infractions. Secondly, Brian is incarcerated at the Ohio State Penitentiary because he is in security classification 4. He also represents inmates ineligible for parole because they are in maximum or high maximum security classifications.

(8) Michael Shirley is a technical parole violator. He has served every day of the nine months that should apply to him, because he belongs in offense category 1. The Parole Board gave him another 26 months.

(9) Ronald Black received a Layne review. At the time, he was under his guideline maximum. The Parole Board gave him 10 years, which takes him beyond his guideline maximum. Mr. Black will be entitled to immediate release after he has served every day of his guideline range.

(10) Claude Smith was convicted of Aggravated Murder and received a thirty year flop in 1996. The web offender search engine still reflects his next hearing date as 2026. This amounts to a modification of his sentence from Life with eligibility for parole to Life without parole. He is entitled to habeas corpus relief, because he is being deprived of earned opportunities for parole consideration.

(11) Cheryl Driskell was convicted of Aggravated Murder. Unlike Mr. Smith, she was placed under the current guidelines. These guidelines required 25 years, when the legislature only required her to serve 15 years. Ms. Driskell and others similarly situated are entitled to habeas corpus relief consisting of bringing their sentences into conformity with the statute and enjoining Defendants from depriving her of earned opportunities for parole consideration after she served 15 years.

(12) Robert Walder has been convicted of sex crimes and these have been run consecutive. The Bureau of Sentence Computation has decided that he his entitled to parole consideration in 2086. Like Ms. Driskell, his sentence must be brought into conformity with the Ohio Revised Code, which gives everybody parole consideration after serving 15 years if you have not committed a murder, and 20 years if you did commit a murder, regardless of how high the consecutive sentences are stacked.

Launching of New Habeas Corpus Class Action

To our knowledge, this is one of the largest and possibly the very largest Habeas Corpus Class Action lawsuit ever. To be honest, I never dreamed this would materialize. We have been blessed with favorable and recent U.S. Supreme Court and Ohio Appellate Court decisions – this is true. There is another equally compelling truth. If we had not begun preparing for this day when there was not a glimmer of reason or hope to believe such a day would ever arise, we would not be organized and uniquely positioned to pounce upon this opportunity and make the most out of these Supreme Court and Ohio decisions. There is an old proverb, the Lord helps first, those who help themselves. Because we made a conscious and group decision to help ourselves, relief is on its way. I personally believe that we are not totally the beneficiaries of luck. In my view, we had a hand in changing this legal landscape, and maybe a greater role than we even now appreciate.

Questions

Since our last Progress Report, we have been bombarded with questions. Most of these questions are recurring, so we are answering them through this progress report.

Will you lose your right to monetary damages?

The most frequently asked question is whether or not you will lose your right to monetary damages in the event the Habeas claim is granted. The short answer is NO, you still retain all rights to monetary damages, even though you may become the beneficiary of habeas corpus relief. Now, how can that be possible? It is true, monetary damages are not available through habeas corpus. However, we are not abandoning our civil rights claim. Everyone qualifying for habeas corpus relief also qualifies for civil rights relief, which does include monetary damages. These Parole Board Members have violated your civil rights, by performing the function of judges. In ten minutes or less, they have found you guilty of new criminal behavior. You are entitled to monetary damages for this conduct.

Can Habeas Corpus Eliminate Supervision After Release?

The next most asked question is whether or not you will be subject to supervision if you are released through habeas corpus. It is true, that most inmates released through habeas corpus are not subject to parole. However, these inmates have challenged and invalidated their original convictions. In this case, we are challenging a Parole Board conviction while stipulating that the original conviction and sentence is not being challenged. This is a critical difference, and has a bearing upon whether or not parole can be imposed.

For representative inmates Richard Dixon and John Summers, I know that Post Release Control will apply. There is a fairly recent U.S. Supreme Court decision [United States v. Johnson, 529 U.S. 53 (2000)], which holds that periods of Post Release Control cannot be exchanged or excused because of excess prison time served. This Supreme Court decision closely tracks the federal statute, which sets out a term for Post Release Control. Richard Dixon and John Summers have convictions under Ohio’s New Law. Post Release Control will apply to them because Ohio’s new law statute tracks the Federal statute construed in Johnson.

However, for those inmates with only an “old” law conviction we have a different set of facts. Under the Old Law, Ohio courts never issued a period of post release control or parole. Rather, they issued a prison sentence and left the matter of parole supervision to the Parole Board. This distinction gives us a basis for distinguishing our facts from the facts of Johnson, giving us a basis to challenge whether or not parole can be imposed.

As we have stated many times, this litigation is traveling upon uncharted waters. I have not found any facts analogous to ours, so I really cannot give you a firm answer for any of the other representative clients. We know how you feel about this subject, and we will work hard to achieve a clean release. However, this is not something that can be counted upon.

What about other Pending Habeas Corpus Actions?

The next question is what you should do if you have a pending habeas corpus action? We are going to set up a mechanism in which any client will have the ability to opt out of joining our class action habeas lawsuit. Several clients, represented by law firms, have already advised us of their desire to do so. Basically, if you have a pending habeas corpus lawsuit, you are going to have to decide which one to pursue, because you cannot pursue both. In general, if you are pursuing your habeas case pro se, you may want to give serious consideration to joining our habeas action, simply because this is a very difficult bridge to cross and very few pro se litigators are capable of navigating this terrain. If you are represented by counsel, I cannot help you with this decision, because I do not know the merits of your other action. You have some time to make this decision. At the moment, just our poster clients are actively seeking habeas corpus relief. After these clients are approved in principal, we will have to produce a list of additional clients with situations mirroring the poster clients. At that time, you will have to decide by dropping one of the other, and that may be months off. In the meantime, we are going to begin the process of canvassing our clients to find out who belongs where in our 12 categories.

What about the Ankrom Hearings?

The next question is how you should react to these Ankrom hearings. If you are not on the list, should you ask to get on the list.

If you are not on the Ankrom List, by all means, fill out the form and ask to be on the list. I further recommend attaching a piece of paper which demonstrates why you qualify. Go down the order set out in may last progress report and state which prongs apply to you. Then, when they turn your down – and we all know they will turn you down – send your application and their denial letter to us. If you are on the list, by all means, go to your hearing with a good attitude and do your best to get an exit pass out of there. But, if the decision does not go your way, send us a copy of your parole board decision and a letter with what happened and the prongs which do apply to you. For that matter, we are interested in collecting anyone's parole decision, as we are once again going back to the drill of entering this into our computer, anticipating pretty pictures that mirror the Layne violations.

Again, we are asking that all clients keep us posted as to their Ankrom treatment: whether given a hearing or denied a hearing. We need copies of all Ankrom Parole Board Decisions, as well as, Ankrom Denial Letters. Please mark your mailing envelope “Ankrom” and send it directly to:

Becki Miller
Box 1087
Defiance, Ohio 43512

If you have specific questions about the Ankrom case, please direct these questions to the Ohio Public Defender's Office with the specifics of your case:

Ohio Public Defender's Office
Attention: Charles Clovis
8 East Long Street - 11th Floor
Columbus, OH 43215
614 466-5394
800 686-1573

Below is a quote from a Press Release from the Public Defender's Office regarding Ankrom:

"The Parole Board had until May 16, 2005 to appeal the 10th District's decision. No appeal was filed, which means that all affirmed portions of the trial court's decision are now final.

Recently, the Parole Board released a list of inmates eligible for new hearings under Ankrom. This list was compiled without any consultation with the Ohio Public Defender or the trial court. The criteria used by the Parole Board to form this list do not correspond to the criteria contained in the trial court's August 31, 2004 decision. As a result, many Plaintiff class members who qualify for a new parole hearing are not included on the Parole Board's list.

The Ohio Public Defender and the Parole Board's attorneys are meeting with the trial court on June 3, 2005. All aspects of the case—including hearing eligibility and hearing scheduling—will be discussed at that time."

I read this as a very ominous signal of things to come. If you want to comply in good faith, you meet with the victors and work out a strategy for complying with the order. The Parole Board still refuses to acknowledge the obvious fact that their discretion is no longer free swinging and unburdened. The fact that they are insisting upon dictating the rules for these hearings, even though they lost the Ankrom decision, reflects a mind-state of defiance. This is going to be rough sailing but good for us in one respect. This is more evidence of bad faith.

Yes – We Are Accepting New Clients

The enlistment of new clients pays the bills and enables me to continue doing this legal work, as opposed to other work. In response to the questions as to whether or not we are still accepting new clients, the answer is a resounding yes. You are as welcome today, as our existing clients were when this litigation was still struggling to get on its legs.

Miscellaneous

As you go down the list of our representative clients in the Habeas action, you may wonder why we left out an inmate that has been granted a parole, only to have it taken away by a victim and/or a victim’s advocacy group. Initially, this was included as a category. However, as we thought more deeply about this problem, it became clear that everyone in this category will also fit in another category. I know that there will be some duplication; but, total duplication is just unnecessary. I mention this, simply so you know that we did not forget this predicament.

You know that we have been prying into the affairs of the Department of Rehabilitation and Correction for four years, and we have a pretty good idea of what is taking place. However, while confined to just civil rights claim, there were a few deep and forbidden places that seemed beyond reach. For example, we never – until now – challenged the rule that you had to be at Close security status before you could be eligible for parole. After these latest filings, I believe that we have finally penetrated nearly every bad cave that exists. I know, that is REALLY, REALLY SAYING SOMETHING. But, it is also no minor thing that we are linking the habeas remedy to our civil rights remedy. This is equivalent to a change in kind, not just a change in degree. The next few months may prove interesting.

Our offices have been receiving a lot of inmate correspondence. While every letter is read and filed for future use, it is impossible for us to answer each and every letter. We are asking clients limit their letter writing to necessary, important, concise matters. While we do care about your mail room problems, the total lack of medical attention, and your inability to get programs required by the Parole Board because they are not offered at your prison, we do not have the staff and the resources to help you with these matters. It is taking everything we have to just stay on top of the parole issues. Also, it would be helpful if each letter would have a subject matter reference at the beginning, because we are organizing our evidence by subject matter and this will expedite the process on our end.

Sincerely,


Norman Sirak
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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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Old 05-24-2005, 05:54 PM
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