Welcome to the Prison Talk Online Community! Take a Minute and Sign Up Today!






Go Back   Prison Talk > U.S. REGIONAL FORUMS > OHIO > Ohio Parole, Probation, Work Release, Halfway Houses & Community Service
Register Entertainment FAQ Calendar Mark Forums Read

Ohio Parole, Probation, Work Release, Halfway Houses & Community Service All information relating to parole, probation, halfway houses, community service and electronic monitoring in Ohio should be posted here.

Reply
 
Thread Tools Display Modes
  #1  
Old 05-24-2005, 12:34 PM
bebopp7's Avatar
bebopp7 bebopp7 is offline
Registered User
 

Join Date: Dec 2002
Location: Fairborn, Ohio
Posts: 605
Thanks: 0
Thanked 7 Times in 4 Posts
Default New court filings for old law inamtes in Ohio

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.
Supplemental Pleading
Pursuant to Rule 15(d)
Margarette Ghee, et al.
Defendants
Plaintiffs approach the Court and respectfully request leave to file this
Supplemental Pleading pursuant to Fed. R. Civ. P. 15(d) as follows.
1. Fed. R. Civ. P. 15(d) permits a party to serve a Supplemental
Pleading setting forth transactions or occurrences or events which have
happened since the date of the pleading sought to be supplemented.
2. Our existing Amended Complaint and our Supplemental Pleading for
monetary damages remain in full force and affect. Matters in this pleading are
2
new and supplement these existing pleadings.
Allegations Common to All Representative Clients
3. 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 through Habeas Corpus. Accordingly, there is
no claim seeking immediate release in our Amended Complaint.
4. Since this Amended Complaint was filed, new developments have
evolved from the identical matrix of facts discussed in our Amended
Complaint. In the intervening two years, two recent U.S. Supreme Court
decisions, U.S. v. Booker 1and Blakely v. Washington,2 have provided a legal
basis for asserting a habeas corpus claim for relief, where previously none
existed. These two decisions have created a New Constitutional Rule.3
5. The New Constitutional Rule evolving from Booker and Blakely
states that 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.
1 543 U.S. ___(2005), 125 S. Ct. 738, 73 U.S.L.W. 4056 (2005) [hereafter Booker].
2 124 S. Ct. 2531 (2004) [hereafter Blakely].
3 For an explanation of a New Constitutional Rule, see Schriro v. Summerlin, 124 S. Ct.
2519, 2523 (2004).
3
6. In 1998, the Parole Board revised and greatly expanded its parole
guidelines, utilizing a matrix grid for setting out guideline ranges predicated
upon and bonded to specific crimes reflecting Revised Code statutes. Each
guideline range sets forth a minimum and a maximum number of months to be
served for a specific crime referenced. Since their adoption, the Parole Board
has rigidly enforced the minimum guideline, even though this guideline
begins, on average, 5.3 years after the initial parole board hearing set by the
trial court.4 Serious consideration for parole does not begin until a parole
candidate enters their matching guideline range. The maximum timeline for a
guideline range is not accorded the same respect. The Parole Board has
conferred upon itself the authority to do upward departures and demonstrated
its willingness to exercise this discretion freely. Any parole panel consisting of
one Parole Board Member and hearing officer has authority to depart upward.
7. The process used by the Parole Board to find a parole candidate
guilty of new criminal behavior does not incorporate any of the safeguards and
checks mandated by the U.S. Constitution. If a parole board panel determines,
based upon the preponderance of the evidence, that a new crime has been
committed, the Parole Guidelines simply require a letter to the inmate advising
him of this finding. For a show of good cause, this letter typically provides a
4 See Document No. 196, Plaintiffs Exhibits, Charts and Graphs, Roman Numeral I.
4
highly subjective reason and conclusory language in lieu of evidence.5 Once
this self serving letter has issued, the inmate has received all the due process to
which he is entitled under these guidelines. Even if evidence is available to
support an additional charge, these guidelines are fatally flawed in a second
respect. The inmate has not been prosecuted for this conduct the right way.
8. On December 18, 2002, the Ohio Supreme Court issued its Layne
decision.6 Layne recognized and legitimized these guidelines as a package, and
declared both the minimum and maximum timelines are to be respected,
thereby restraining the Parole Board's exercise of discretion.
9. Since the Ohio Supreme Court’s Layne decision validated the Parole
Board's current guidelines, the maximum sentence authorized by the facts has
changed. The maximum sentence is no longer the timeline representing the
outer boundary of the general statutory scheme. Instead, this maximum
sentence now consists of the timeline marking the upper boundary of the
guideline range matching the trial court judgment. When an inmate has served
more time than required by this guideline range, or has been ordered to serve
5 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibits 7 and 8, letters from Hearing Officer E.M. Colan to James George and to
Robert Gutierrez, both dated April 25, 2005. In pertinent part, these letters state, "When
considering an inmate for parole, the parole board retains its discretion to consider any
circumstances related to the offense or offenses of conviction, including crimes that did not
result in conviction as well as any other factors the parole board deems relevant." Copies of
these letters were mailed in advance to the Attorney General's Office.
6 Layne v. Adult Parole Authority, 97 Ohio St. 3d 456 (Oh. 2002) [hereafter Layne].
5
more time than required by this guideline range, under the New Constitutional
Rule, the increment of time exceeding the guideline boundary is prohibited
and constitutes an ultra vires exercise of authority. Further, the fragment of a
sentence extending beyond this maximum timeline boundary is void.
10. Because the time served in excess of the maximum timeline
boundary has been ordered by the Parole Board, this constitutes a Parole Board
sentence.
11. Under Ohio's Constitution, the Parole Board has no sentencing
authority. Accordingly, after serving every day of the guideline matching their
court conviction, Named Plaintiffs have been serving a void prison sentence
and they are presently being detained unlawfully by Director Wilkinson.
12. Because of the new Constitutional Rule created by Booker and
Blakely, the rights for some of our Named Plaintiffs have been elevated.
Plaintiffs serving or ordered to serve the fragment of a sentence beyond their
maximum guideline boundary have now got a legal basis for asserting a
remedy – habeas corpus – which previously did not exist.
13. In all of the representative clients which follow, none of our Named
Plaintiffs are challenging their original convictions. These representative
clients and all similarly situated Named Plaintiffs are primarily engaging 28
U.S.C. § 2241, because their claims arise from the execution of a sentence, as
6
opposed to the imposition of a sentence.
14. These representative clients and similarly situated Named Plaintiffs
are challenging their Parole Board sentences. Pursuant to 28 U.S.C. § 2254 (b),
Plaintiffs state that there are no legitimate court avenues to pursue for
reversing the result of a parole board decision and, further, there is both an
absence of available state corrective process, and circumstances exist that
render such process ineffective to protect the rights of these applicants.
15. Plaintiffs maintain that the New Constitutional Rule applies to the
decisions of a Parole Board with the same weight and force as they apply to a
trial court. Plaintiffs further state that the Parole Board steadfastly refuses to
apply the New Constitutional Rule to a new context where it should apply,
namely at a parole hearing. Instead, the Parole Board insists upon applying its
Parole Guidelines, which are hopelessly conflicted and cannot be reconciled
with the current reading of the U.S. Constitution's Sixth Amendment. Hence,
this decision-making constitutes an unreasonable application of clearly
established Federal law as determined by the United States Supreme Court.
First Representative Client
16. Plaintiff James Crawford7 was given a sentence of 7 to 25 years for
Involuntary Manslaughter. This occurred in December of 1991. In two Layne
7 See Document No. 215, Plaintiff's Exhibit 440, Layne Decisions for James Crawford.
7
review hearings, the Parole Board calculated his offense score at 8, and placed
him in a guideline range requiring 60 to 84 months. At the time of his second
Layne hearing, Mr. Crawford had already served 157 months.
17. Under the New Constitutional Rule, 84 months is the maximum
amount of time that Mr. Crawford can be held for his crime.
18. Mr. Crawford served every day of the guideline matching his court
conviction, then every day of the guideline range for Category 9 (i.e. 7 to 10
years) and, to date, he has served all but three months of the guideline range
for Category 10 (i.e. 10 to 15 years). The criminal conduct engaging these
higher categories requires the commission of Involuntary Manslaughter
coupled with aggravating factors, such as the commission of a robbery or a sex
offense. Mr. Crawford's trial court has not sanctioned any of the aggravating
factors enumerated in Offense Categories 9 and 10 for Involuntary
Manslaughter. Accordingly, since crossing the timeline of 84 months, Mr.
Crawford has been serving a prison sentence appropriate for criminal conduct
never sanctioned by his trial court. This added fragment of time is unlawful.
19. In detaining and depriving Mr. Crawford of his freedom unlawfully,
Defendants have at all times acted under color of State law.
20. Mr. Crawford represents a sub-class of Named Plaintiffs assigned to
a guideline range that is shorter than the general criminal statute for which he
8
was convicted. Under the New Constitutional Rule, Mr. Crawford's guideline
range of 5 to 7 years trumps his statutory sentence of 7 to 25 years. Like Mr.
Crawford, inmates in this sub-class have served every day of their guideline
range. As a result, members of this sub-class are serving a parole board
sentence requiring time for aggravating factors or more serious criminal
wrongdoing never sanctioned by their trial courts.
21. Questions of law and fact common to members of the sub-class
predominate over any questions affecting individual members. Further, Mr.
Crawford and similarly situated Named Plaintiffs constitute an identifiable
sub-class which qualifies for the relief afforded by the Writ of Habeas Corpus.
Second Representative Plaintiff
22. Phillip Jovanovic8 was convicted of murder in 1981. He was given a
sentence of 15 years to life with eligibility for parole. Mr. Jovanovic was not
given any additional time for a gun specification. He is a first time offender
and he has been a model prisoner.
23. The Parole Board Guidelines designate Category 11, requiring 15 to
20 years for murder. However, if the victim is a minor child, these guidelines
stipulate a longer sentence, Category 12, which requires 20 to 25 years. Mr.
8 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 5
Jovanovic's victim was a five year old child. The guidelines further require
consideration of mitigating factors.9 Because Mr. Jovanovic was the only
person present who tried to save the child by taking him to a hospital, he could
qualify for Category 11. However, his parole panel placed him in Category 12.
24. Mr. Jovanovic served all but two months of Category 12, when he
was reviewed in February of 2005, several months after the Booker decision
was rendered and well publicized. In early April, Mr. Jovanovic was informed
through the mail that he must serve an additional 40 months.
25. In April of 2005, Mr. Jovanovic crossed the timeline for Category
12 and began serving time in Category 13, reserved for inmates convicted of
Aggravated Murder.
26. Mr. Jovanovic has no disciplinary violations and he has served his
time in an exemplary manner. He has been at minimum security since 1984. In
short, he is conspicuously well qualified to blend in with free society.
27. Under the New Constitutional Rule, 300 months [i.e. 25 years] is the
maximum amount of time that Mr. Jovanovic can be held for his crime.
28. Upon completing his 300th month of incarceration, Mr. Jovanovic
has been serving a void prison sentence. He is presently being detained
9 See Document No. 245, Revised 2003 Parole Guidelines, Part D, Guideline Application
Procedure, § 105 (c) Decisions Below the Guidelines, at (4), attempted corrective measure.
Mr. Jovanovic tried to save the victim by driving him to a hospital.
10
unlawfully by Director Wilkinson. Since crossing the timeline for his 300th
month, Mr. Jovanovic has been unlawfully deprived of his freedom. At all
times, Defendants have acted under color of State law.
29. Mr. Jovanovic represents a sub-class of Named Plaintiffs convicted
of Murder. Typically, members of this sub-class are given a minimum
sentence of 15 years and a maximum sentence of Life, with eligibility for
parole after serving 10.5 years. The matching guideline range for members of
this sub-class is Category 11, requiring 15 to 20 years. Upon serving more than
the maximum timeline for this guideline range (i.e. 20 years), members of this
sub-class begin serving time required for aggravating factors or more serious
criminal wrongdoing never sanctioned by their trial court. If the crime involves
a minor child or a policeman, members of this sub-class can be placed in
Category 12, requiring 20 to 25 years. Upon serving more than the maximum
timeline for this guideline range (i.e. 25 years), members of this sub-class
begin serving time required for a more serious crime, Aggravated Murder.
Under the New Constitutional Rule, Mr. Jovanovic's guideline range of 20 to
25 years trumps his statutory sentence of 15 years to Life. Like Jovanovic,
inmates in this sub-class have served every day of their respective guideline
range (i.e. Category 11 or 12). Members of this sub-class are serving time in a
guideline range requiring aggravating factors or, like Mr. Jovanovic, for the
11
crime of Aggravated Murder, never sanctioned by their trial court.
30. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Further, Mr.
Jovanovic and similarly situated Named Plaintiffs constitute an identifiable
group which qualifies for the relief afforded by the Writ of Habeas Corpus.
Third Representative Client
31. Thom Hoffman10 was convicted under former R.C. § 2901.01,
which consisted of Murder in the First Degree. This occurred in 1973, before
Ohio's Legislature adopted a crime called Aggravated Murder, now codified as
R.C. § In the U.S. Supreme Court decision Furman v. Georgia,11 the death
penalty was struck down in Ohio as well as in every other state. The necessary
elements of proof for establishing a premeditated state of mind were deemed
insufficient under statutes in force at the time. As a result, Ohio enacted an
aggravated murder statute on January 1, 1974, which set out a much different
and a much higher standard for proving the premeditated state of mind.
33. When Thom Hoffman was found guilty of his crime, the elements
See Document No. 62, Volume I, Plaintiffs Exhibit 12, Affidavit of Thom Hoffman. See
former R.C. § 2901.01, Appendix to Plaintiffs’ Brief on Blakely Issues, Part II -
Supplemental Pleading, Plaintiffs’ Exhibit 1
11 408 U.S. 238 (1
necessary for establishing a premeditated state of mind did not correspond to
the elements presently required. It is an elementary principal of law that a
person cannot be assigned to a guideline range reserved for crimes with
constituent elements of proof which did not exist or which differed from the
constituent elements of proof at the time of the conviction, particularly when
these elements of proof have become more demanding and, therefore, might
not have been amenable to proof in an earlier conviction.
34. The level of proof required for the conviction of Thom Hoffman
would only satisfy R.C. § 2903.02, our current statute for Murder.
35. The Parole Board has steadfastly insisted upon placing Thom
Hoffman and other inmates similarly situated in the guideline range for
Aggravated Murder, Category 13, which begins after serving 25 years. The
correct guideline range for Mr. Hoffman is Category 11, requiring 15 to 20
years. Mr. Hoffman has already served more than 30 years.
36. Mr. Hoffman has been a model inmate and he has served his time in
an exemplary manner. He is conspicuously well suited for returning to society.
37. Under the New Constitutional Rule, 240 months [i.e. 20 years] is the
maximum amount of time that Mr. Hoffman can be held for his crime.
38. Upon completing his 240th month of incarceration, Mr. Hoffman
began serving a void prison sentence. He is presently being detained
13
unlawfully by Director Wilkinson. Since crossing the timeline for his 240th
month, Mr. Hoffman has been unlawfully deprived of his freedom. At all
times, Defendants have acted under color of State law.
39. Mr. Hoffman represents a sub-class of Named Plaintiffs convicted
of First Degree Murder prior to January 1, 1974. This sub-class also includes
Named Plaintiffs whose crimes were committed prior to January 1, 1974, even
though their convictions occurred after this date, if the Parole Board insists
upon placing them in an offense category which imposes a standard for
premeditated murder that is higher than the standard in force prior to January
1, 1974.12 Named Plaintiffs in this sub-class belong in Category 11, not 13.
40. If facts set out for Mr. Hoffman and murder can be applied to
another criminal statute whose elements have changed over the past several
decades, these inmates are similarly situated and would also be joined to this
sub-class, if they have been placed in a guideline range requiring more
stringent elements of proof than existed at the time of their conviction, and
they have served every day of the guideline which matches or comes the
closest to matching the elements of proof for their true crime of conviction.
12 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 6, Parole Board Decision for Nute Woods, dated April 27, 2004. Under
Offenses of Conviction, R.C. § 2903.01 is listed. Mr. Woods committed his crime prior to
January 1, 1974, but he was convicted afterward. The proper statute to apply is R.C. §
2903.02.
14
41. Typically, members of this sub-class are given a minimum sentence
of Life and a maximum sentence of Life, with eligibility for parole after
serving 10 or 15 actual years. The matching guideline range for members of
this sub-class is Category 11, requiring 15 to 20 years. Under the New
Constitutional Rule, Mr. Hoffman's sentence of Life and Life has been
trumped by a guideline range requiring 15 to 20 years. Like Thom Hoffman,
inmates in this sub-class have served every day of their guideline range.
Currently, members of this sub-class are serving time in a guideline matching
a crime, Aggravated Murder, which did not exist in the Ohio Code and was not
available to a trial court at the time of their conviction.
42. Questions of law and fact common to members of the sub-class
predominate over any questions affecting individual members. Further, Mr.
Hoffman and similarly situated Named Plaintiffs constitute an identifiable subclass
which qualifies for the relief afforded by the Writ of Habeas Corpus.
Fourth Representative Client
43. Cecil Allen13 cannot be found in the Department's Web Offender
Search Engine. Mr. Allen is serving his Ohio prison sentence at the U.S.
Penitentiary in Marion, Illinois. He is a Named Plaintiff and one of our clients.
13 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 2.
15
44. Mr. Allen was convicted of aggravated robbery and given a 10 – 25
year sentence by the Hamilton County Court of Common Pleas. He began
serving this sentence on June 26, 1987.
45. In April of 1993, the Southern Ohio Correctional Institution, better
known as Lucasville after the name of the city where it is located, had a riot.
Mr. Allen's role in this riot was investigated. In 1994, this investigation
resulted in an indictment for three counts of felonious assault and one count of
assault in Ross County. Sentences of 5 to 15 years were issued for Felonious
Assault charges, and these sentences were ordered to run concurrent with Mr.
Allen’s aggravated robbery conviction. A sentence of 3 to 5 years was issued
for assault. This charge runs consecutive to the aggravated robbery conviction.
46. The offense score for Aggravated Robbery was recorded on his
Offender Hearing Record, the predecessor of the current Parole Board
Decision form, as Offense Category 8. Mr. Allen has a criminal history risk
score of 5. His guideline range for the Aggravated Robbery conviction is 108
to 132 months (i.e. 9 to 11 years). The felony of assault qualifies as Offense
Score 2. 14 Factoring in Mr. Allen’s Risk Score, his guideline range for this
crime is 14 to 20 months. The minimum sentences for his two trial court
14 See Document No. 245, Revised 2003 Parole Guidelines, Chapter Two, Offenses Against
a Person, Subchapter B, Assault and Harassment Offenses, at § 213 Assault.
16
convictions are 7 plus 2 years, respectively. Applying the Parole Board’s
guidelines, the minimum sentences for his aggravated robbery and assault
convictions, run consecutively, produce a minimum guideline of 10 years and
2 months and a maximum guideline of 12 years, 8 months.
47. Adding 12 years and 8 months to Mr. Allen’s entry date of June 26,
1987 brings us to March 1, 2000. Beginning on this approximate date, Mr.
Allen began serving a guideline requiring criminal conduct never sanctioned
by his trial court in Hamilton County or Ross County. Mr. Allen has exceeded
his guideline by more than five years. Though conspicuously qualified for a
Layne review in 2003, he received no such hearing. He is now conspicuously
qualified for an Ankrom review, but his name is missing from this list.
48. Mr. Allen, like every other Ohio inmate serving their sentence under
an interstate agreement with another state or with the Federal government,
never had a parole hearing. Instead, he simply received the record of this
phantom hearing in the mail. In Mr. Allen’s case, after serving nine years, he
received a ten year continuance to June, 2008. If history repeats itself, Mr.
Allen can only look forward to another decision via the mail in June of 2008.
49. Mr. Allen’s trial court sentences were modified by the Parole
Board's Offender Hearing Record dated June 1, 1998. The Parole Board did
not run the three charges for Felonious Assault concurrent with his Aggravated
17
Robbery conviction. Instead, these charges were factored into the Parole
Board’s multiple separate offense rule and used to justify a three range upward
departure from Category 8 to 11, resulting in a guideline range that begins
after serving 240 months (20 years). In 2008, he will have served 21 years.
50. In August of 2004, Mr. Allen initiated his own Writ of Habeas
Corpus. This writ was denied and the case is closed.
51. Mr. Allen represents two different sub-classes eligible for habeas
corpus, plus a third identifiable group of Ohio inmates that has been totally
ignored by the Parole Board. Mr. Allen represents a sub-class of Named
Plaintiffs whose trial court judgments have been modified by a Parole Board
sentence. These modifications can occur in three different ways. (1) As in Mr.
Allen’s case, the Parole Board uses its multiple separate offense rule to run
sentences consecutively when the trial court has ordered sentences to run
concurrent. (2) The Parole Board has applied its multiple separate offense rule
to numerous lesser included offenses engaging a definite sentence, causing an
upward departure which essentially requires a definite sentence to be served a
second time.15 (3) The Parole Board has relied upon Administrative Rule §
5120-2-03 to reverse the presumption and the literal language of former R.C. §
15 For an example of this kind of upward departure, see the discussion of Donald Miller,
Document No. 173, Second Partial Motion for Summary Judgment, Fifth Cause of Action
for Ex Post Facto Violation, footnote 89 and accompanying text.
18
2967.13(A) and (B) by aggregating a later trial court sentence to a prior court
sentence, with no justification in the trial court judgment for doing so.
52. Mr. Allen represents a second sub-class that has already filed a writ
of habeas corpus. Members of this sub-class must necessarily fall within
another sub-class just as Mr. Allen does, because their circumstances must be
similar to one of our representative clients. For this sub-class, writs will be
bifurcated from other sub-classes, because these writs must first be presented
to a three judge panel pursuant to 28 U.S.C. § 2244 (b) (3) (A) and (B). Since
time is of the essence with a Habeas Corpus petition and this track will be
slower due to the need for appellate court approval, separate handling of these
writs will allow other sub-classes to proceed without waiting for this approval.
53. Finally, Mr. Allen represents a group of Ohio inmates serving their
sentences in other states and in Federal prisons. The habeas corpus rights of
these inmates deserve the same recognition and treatment given to inmates
serving their sentences in Ohio and whose records can be readily retrieved
upon the web offender search engine operated by Defendants.
54. Questions of law and fact common to members of these two subclasses
predominate over any questions affecting individual members. Further,
Mr. Allen and similarly situated Named Plaintiffs constitute identifiable subclasses
which qualify for the relief afforded by the Writ of Habeas Corpus.
19
Fifth Representative Client
55. Richard Dixon16 was convicted of Aggravated Murder and Robbery
in 1980. He was given a 15 year to Life sentence. On May 23, 1996, Mr.
Dixon was paroled. On December 28, 1999, he was convicted of Gross Sexual
Imposition and given a 1 year sentence under the New Law. Mr. Dixon's court
judgment marks out a field reserved for ordering sentences to run consecutive,
indicating that this does not apply. He has been ordered to serve Post Release
Control after the 1 year sentence is completed.
56. Mr. Dixon returned to prison on March 14, 2000. He served his one
year sentence on December 28, 2000. Instead of releasing him, the Parole
Board convened a parole hearing. At this hearing, the unserved portion of Mr.
Dixon's Old Law crime was reinstated and then utilized to frustrate and trump
his New Law conviction. Instead of going into Post Release Control, Mr.
Dixon was continued to December 28, 2004 with no out date. In fact, he was
told at this hearing that when he came back in December of 2004, he could
16 See Document No. 172, Motion for Partial Summary Judgment for Separation of Powers,
Claim 1, Part C – Modifying New Law Sentences, at footnotes 155 to 176 and
accompanying text; See also Document No. 200, Plaintiffs' Exhibit 26, Affidavit of Richard
Dixon.
20
expect to get some more time. True to their word and while this case was in its
indefinite stay, Mr. Dixon did receive more time. His next parole hearing has
been scheduled for March 1, 2006.
57. New Law offenders such as Mr. Dixon with un-expired sentences
under the Old Law are to be treated just as any other New Law inmate,
pursuant to R.C. § 2967.28(F)(4). Upon serving every day of his one year
sentence, Mr. Dixon should have been released and placed on Post Release
Control. Instead, Mr. Dixon began serving a void prison sentence. He is
presently being detained unlawfully by Director Wilkinson. Since crossing the
timeline marking his 1 year sentence, Mr. Dixon has been unlawfully deprived
of his freedom. At all times, Defendants have acted under color of State law
58. Mr. Dixon represents a sub-class of Named Plaintiffs convicted of a
crime under the Old Law, who have been paroled and then convicted of a new
crime under Ohio's New Law. As in Mr. Dixon's case, members of this subclass
have served every day of the prison term ordered by their judge under the
New Law sentence. Instead of being released to supervision, the Parole Board
has applied their current Parole Guidelines and issued additional time from
their dormant Old Law sentence. Mr. Dixon and similarly situated Plaintiffs
are to be released to supervision. Since the last day of their New Law sentence
was served, these Named Plaintiffs have been serving a void prison sentence.
21
59. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Further, Mr.
Dixon and similarly situated Named Plaintiffs constitute an identifiable subclass
which qualifies for the relief afforded by the Writ of Habeas Corpus.
Sixth Representative Client
60. Mr. Summers 17 was also convicted of an Old Law crime and
paroled. Like Mr. Dixon, he returned to prison after being convicted of a New
Law crime. Unlike Mr. Dixon, Mr. Summers has not yet served his entire New
Law sentence. Nevertheless, Mr. Summers already knows that a fate awaits
him, similar in kind to the fate of Mr. Dixon. The Records Office informed
him that his New Law sentence has been aggregated to his Old Law sentence.
61. The exercise of aggregating his Old Law and New Law sentences
consists of stripping away the Old Law and New Law character of each
sentence and generating in their place a hybrid or aggregated sentence. This
hybrid sentence is strictly a creation of the prison Records Office. Just as the
term aggregate implies, Mr. Summers’ Old Law and New Law sentences
become homogeneous elements to a new sentence representing a union of both
sentences. There is typically a remnant of time left upon an Old Law sentence
that has not been served. Instead of reflecting his New Law sentence as fully
17 See Document No. 204, Plaintiffs Exhibit 88, Affidavit of John Summers.
22
served, this hybrid sentence reflects both sentences as a common mass. The
fully served new law sentence becomes an indistinguishable component of the
years served, blended into years of service performed on the old law sentence.
The unserved remnant of time left on the Old Law sentence now appears as
time authorized by a trial court which can still be assigned. This remnant of
available time paves the way for applying the current parole guidelines. Upon
serving his New Law sentence, Mr. Summers can expect to receive additional
time from his Old Law sentence under these guidelines, instead of supervision.
62. The facts of Mr. Summers parallel the facts of Mr. Dixon, with one
difference. Mr. Summers is not yet serving his void prison sentence. However,
he knows for a fact that he will receive a void prison sentence upon
completing his New Law sentence, because his crimes have been aggregated.
The decision of the Records Office to aggregate his Old Law and New Law
sentences is functionally equivalent to a Layne hearing, where an inmate has
been ordered to serve time beyond their guideline range. Aggregating these
sentences erases the New Law character of his current conviction and
substitutes in its place the Parole Board's Guidelines, where an additional
prison term is virtually carved in stone and waiting for him.
63. The remedy of Habeas Corpus does not have to wait until a void
prison sentence is actually being served. If a petitioner knows for a certainty
23
that at a date certain in the future, his legitimate sentence will end and a void
prison sentence will begin, these facts are sufficient to challenge the decision,
in this case the action of the Records Office in aggregating these sentences, if
this action is certain to frustrate and derail his legitimate trial court decision.
64. Mr. Summers represents a sub-class of Named Plaintiffs whose New
Law sentence has already been aggregated to their Old Law sentence, and who
know that they will be compelled to serve a void prison sentence, once their
New Law sentence has been fully served.
65. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Further, Mr.
Summers and similarly situated Named Plaintiffs constitute an identifiable
sub-class which qualifies for the relief afforded by the Writ of Habeas Corpus.
Seventh Representative Client
66. Brian Nemeth18 has been convicted of Voluntary Manslaughter and
received a sentence of 10 to 25 years. He is a first time offender and he has a
Risk Score of zero. Mr. Nemeth's Offense Category is 9. The guideline range
for his crime is 84 to 120 months (7 to 10 years).
67. Mr. Nemeth has currently served every day of his guideline range.
18 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 4, Affidavit of Brian Nemeth.
24
He is four months into a Parole Board sentence (i.e. 124 months served).
68. At a parole hearing on August 27, 2003, Mr. Nemeth's guideline
range was expanded by a minimum of 9 months and a maximum of 30 months
for disciplinary violations. These disciplinary violations, also called bad time,
are not a part of his criminal sentence. At this August, 2003 hearing, Mr.
Nemeth was continued for 49 months, meaning that he must serve 29 of the
extra 30 months assigned to him as bad time before his next hearing.
69. Mr. Nemeth is serving his sentence at the Ohio State Penitentiary,
also called Ohio's Super Max prison. His security level is 4, which stands for
Maximum. Pursuant to Policy No. 501-36,19 Mr. Nemeth is disqualified from
becoming eligible for parole until he lowers his security rating down to Close.
70. Mr. Nemeth represents two different sub-classes eligible for habeas
corpus relief. The first sub-class consists of inmates that have served every day
of their guideline range, and they are now serving time for rules infractions or
bad time. This is a Parole Board sentence without any legitimacy.
71. Mr. Nemeth is presently being detained unlawfully by Director
Wilkinson. Since crossing the timeline for his maximum guideline range, Mr.
19 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 …"
25
Nemeth has been unlawfully deprived of his freedom. At all times, Defendants
have acted under color of State law.
72. The second sub-class represented by Mr. Nemeth consists of
inmates that have served every day of their guideline range but, because they
have been assigned to a security status of 4 or 5, equivalent to maximum or
high maximum, they are being denied eligibility for parole. Named Plaintiffs
in this situation are also being detained unlawfully by Director Wilkinson. At
all times, Defendants have acted under color of State law.
73. Questions of law and fact common to members of these two subclasses
predominate over any questions affecting individual members. Further,
Mr. Nemeth and similarly situated Named Plaintiffs constitute identifiable
sub-classes which qualify for the relief afforded by the Writ of Habeas Corpus.
Eighth Representative Client
74. Michael Shirley20 is a technical parole violator. He was paroled.
Allegations were made by his former girlfriend that he had stolen video tapes,
a tool and he violated his 10 p.m. curfew. The Findlay Police Department was
not impressed. However, his parole officer immediately began the process for
20 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 3, Parole Board Decision of Michael Shirley.
26
revoking his parole. Mr. Shirley voluntarily asked for a polygraph to prove he
was innocent. His request was denied and he returned to prison. The Parole
Board designated Offense Category 1. The Parole Board has designated
Offense Category 1 for parole violators.21 Michael Shirley's guideline range is
0 to 9 months, which is appropriate for a technical parole violator. The
guideline range should be remedial rather than punitive.
75. At a hearing convened on April 12, 2005, Michael Shirley was
prosecuted, convicted and sentenced for crimes the Findlay Police Department
did not consider credible. Following this hearing, he was given an additional
26 months. He is being required to serve 36 months (i.e. 3 years) for this
technical parole violation. After serving these three years, he can only look
forward to another hearing, where he could easily receive still more time.
While this parole revocation process evolves, the Judiciary is firmly excluded.
76. When Michael Shirley served nine months, he should have been
returned to the supervision of his parole officer. Every day served beyond nine
months is the result of a Parole Board sentence which lacks any legitimacy.
He is presently being detained unlawfully by Director Wilkinson. At all times,
Defendants have acted under color of State law.
21 See Document No. 47, Appendix to Motion for Summary Judgment, Item D, Ohio Parole
Board Manual, Part E, § 101, Reparole Guidelines, at (a) "Treat an administrative violation
as a Category 1 offense." (p. 84).
27
77. Michael Shirley represents a sub-class consisting of parole violators
that have served every day of their Category 1 guideline range, and are now
being required to serve a void sentence in excess of this guideline range.
78. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Michael
Shirley and similarly situated Named Plaintiffs constitute an identifiable subclass
which qualifies for relief afforded by the Writ of Habeas Corpus.
Ninth Representative Client
79. Ronald Black 22 has been convicted of rape. He received a sentence
of 10 years to Life. After factoring in his risk score, his guideline range is 150
to 210 months. Mr. Black received a Layne Review. At the time of this
hearing, he had served 119 months. At the conclusion of this hearing, he was
given a ten year continuance with no projected release date. After serving
these ten years and a total of 239 months, he can only look forward to another
hearing. Mr. Black is still serving time in his guideline range. However,
because of this Layne review, he knows that he will exceed his guideline range
and begin serving a void sentence before he has a chance for another review.
80. Mr. Black represents another sub-class that has been given a parole
hearing while still serving time within their matching guideline range. As a
22 See Document No. 216, Plaintiffs Exhibit 500, Parole Board Decision for Ronald Black.
28
result of this hearing, Mr. Black and others similarly situated know that they
will have to serve a Parole Board sentence lacking any legitimacy.
81. The remedy of Habeas Corpus does not have to wait until a void
prison sentence is actually being served. If a petitioner knows for a certainty
that at a date certain in the future, his legitimate sentence will end and a void
prison sentence will begin, these facts are sufficient to challenge the decision,
in this case the last Layne review, since this action is certain to take him
beyond his guideline range.
82. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Ronald Black
and similarly situated Named Plaintiffs constitute an identifiable sub-class
which qualifies for relief afforded by the Writ of Habeas Corpus.
Tenth Representative Client
83. Claude Smith23 was convicted of Forgery and Aggravated Murder in
1976. Under Parole Guidelines in force at the time of his conviction, the Parole
Board had no authority to continue an inmate more than five years. If they
were not released by their second parole hearing, they were to receive parole
hearings annually thereafter. Mr. Smith has been a model inmate. At a parole
hearing in 1991, attended by all nine Parole Board Members, he was
23 See Document No. 204, Plaintiffs Exhibit 83, Affidavit of Claude Smith.
29
commended for his excellent institution record and told that he could certainly
expect a parole at his next hearing in 1996, if he was not released at half time.
84. In 1996, Mr. Smith was again considered for parole. At this point,
he had served 20 years. Nothing had changed since he was considered in 1991.
Instead of getting a parole, Mr. Smith was given a thirty year continuance.
This continuance is still in force.24 Mr. Smith has not been placed under the
current parole guidelines.
85. Mr. Smith represents a sub-class eligible for habeas corpus relief
consisting of inmates convicted of Aggravated Murder and receiving
continuances in excess of ten years prior to the implementation of these current
Parole Board Guidelines. All of these inmates were sentenced to Life with
eligibility for parole. Like Mr. Smith, these inmates had already served at least
15 years before they were considered for parole in 1995, 1996 and 1997. Like
Mr. Smith, these inmates have never been placed under the current parole
guidelines, because their next review is still a decade or more into the future.
86. When inmates like Mr. Smith were given continuances of 20 or 30
years, after serving 15 or 20 years, their trial court sentences were modified in
the following manner. Instead of Life with eligibility for parole, these prison
24 In 2003, Mr. Smith was given a hearing, at which time he was told not to worry about
that 30 year continuance. He was told that they wanted him to serve 30 years, which would
occur in 2006. Nevertheless, his search engine page states that his next hearing is in 2026.
30
sentences became Life without parole – a sentence that no Ohio court had the
authority to issue under Ohio’s Old Law. If the Ohio Legislature never
authorized such a sentence and Ohio trial courts were powerless to issue such a
sentence, Ohio’s Parole Board certainly has no authority to issue such a
sentence. Mr. Smith served the minimum sentence required by his trial court
back in 1991. Since the date in 1996 when Mr. Smith was given this 30 year
continuance, he has been serving a prison sentence reflecting an ultra vires
exercise of authority. Consequently, this fragment of his sentence is void.
Because this Parole Board sentence has no legitimacy, Mr. Smith is entitled to
habeas corpus relief.
87. Mr. Smith is presently being detained unlawfully by Director
Wilkinson. At all times, Defendants have acted under color of State law.
88. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Claude Smith
and similarly situated Named Plaintiffs constitute an identifiable sub-class
which qualifies for the relief afforded by the Writ of Habeas Corpus.
Eleventh Representative Client
89. Cheryl Driskell was convicted of Aggravated Murder in 1980.25 She
has served nearly 25 years. Her next parole review is in July of 2005. Unlike
25 Cheryl Ann Driskell, W014-144
31
Mr. Smith, Ms. Driskell has become subject to the current parole guidelines.
90. Under the Old Law, the crime of Aggravated Murder carried several
different penalties. Because Ms. Driskell's crime was committed prior to
October 19, 1981, she was eligible for parole after serving 15 full years. In
other cases, the crime of Aggravated Murder required 20 years of service,
diminished by accrued good time. Prior to July 1, 1983, an offender was
eligible for parole after serving 16 years. Regardless of the mechanics for
calculating the sentence, the net result was the same. After serving 15 or 16
actual years, a person convicted of Aggravated Murder was eligible for parole.
These sentences were dictated by Ohio’s General Assembly. Ohio courts were
given no discretion when it came time to issue a sentence for Aggravated
Murder. The sentence declared in the statute became the sentence assigned.
91. Under the Parole Board’s current guidelines, Plaintiffs convicted of
Aggravated Murder are assigned to Offense Category 13. This guideline range
begins after 25 years (i.e. 300 months) have been served. The additional time
inserted into this guideline range is predicated solely upon the crime of
Aggravated Murder. Ms. Driskell and other similarly situated Plaintiffs have
not acknowledged any fact in their plea, nor have they been found guilty of
any fact by a jury, that could justify this additional ten years. Hence, this
additional increment of time violates the New Constitutional Rule.
32
92. If an Ohio trial court had no discretion to exercise when sentencing
a defendant convicted of Aggravated Murder, it necessarily follows that the
Parole Board has no discretion to modify and postpone the initial parole
review of these Plaintiffs. The additional ten years required by the Parole
Board’s Guidelines before an inmate can become eligible for parole constitutes
an ultra vires exercise of authority. All of these Plaintiffs have been issued a
new sentence by the Parole Board when the current parole guidelines,
requiring 25 years, were applied to them.
93. Raising the minimum sentence for this crime from 15 years to 25
years also constitutes a modification of the basic sentence. The addition of this
extra ten years is not a difference in degree but rather a difference in kind.
__________________
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
Reply With Quote
Sponsored Links
  #2  
Old 05-24-2005, 12:34 PM
bebopp7's Avatar
bebopp7 bebopp7 is offline
Registered User
 

Join Date: Dec 2002
Location: Fairborn, Ohio
Posts: 605
Thanks: 0
Thanked 7 Times in 4 Posts
Default Continued

For
all but the very hardy, twenty five continuous years in prison constitutes a life
sentence, and these Defendants are well aware of this fact. The mental fatigue
coupled with the total absence of medical care for this duration of time
converts this from a sentence of Life with eligibility for parole into a de facto
sentence of Life without parole. Indeed, the description of this crime on the
web offender search engine operated by Defendants is listed as just Life.
94. Ms. Driskell represents a sub-class of Plaintiffs convicted of
Aggravated Murder and made subject to these current Parole Board
Guidelines. These inmates were issued sentences of Life with eligibility for
33
parole after typically serving 15 years.26 Under current parole guidelines, the
benchmark of 15 years has been rendered meaningless; because the guidelines
range for this crime does not being until 25 years have been served. Since the
date when these parole guidelines were applied to Ms. Driskell and similarly
situated Plaintiffs, she has been serving a prison sentence reflecting an ultra
vires exercise of authority. Consequently, this fragment of her sentence is void.
Because this sentence has no legitimacy, Ms. Driskell and other similarly
situated Plaintiffs are entitled to habeas corpus relief consisting of bringing
their sentences into conformity with their statute and enjoining Defendants
from depriving these Plaintiffs of their earned opportunities for release.
95. Ms. Driskell and other similarly situated Plaintiffs are being
detained pursuant to an ultra vires exercise of authority by Director Wilkinson.
At all times, Defendants have acted under color of State law
96. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Cheryl Driskell
and similarly situated Named Plaintiffs constitute an identifiable sub-class
which qualifies for relief afforded by the Writ of Habeas Corpus.
Twelfth Representative Client
26 There are circumstances under the Old Law where 20 years was required as a minimum
sentence, but these cases are relatively few.
34
97. Robert J. Walder 27has been convicted of numerous sex offenses. He
is a first time offender and the trial court ran his convictions consecutive. His
minimum sentence is 15 years and his maximum sentence is Life with
eligibility for parole. Mr. Walder's web offender search engine page states that
he will receive his first parole hearing in June of 2086. This date has been
determined by the Bureau of Sentence Computation at Central Office. He has
already served 9 years. Mr. Walder is being condemned by the Bureau of
Sentence Computation and the Parole Board to serve 90 years before he
receives his initial parole review.
98. When Mr. Walder was convicted of his sex crimes, the Ohio
Legislature placed a cap on the number of years required before becoming
eligible for parole.28 When the Parole Board required him to serve 90 years
before he could receive his first parole hearing, the cap on consecutive
sentences imposed by R.C. § 2929.41 (E) was openly defied and reduced to a
vain act. In Mr. Walder's case, he was eligible for parole after serving fifteen
years.29 The Parole Board refuses to acknowledge these caps, effectively
27 Robert J. Walder A329837. See http://www.drc.state.oh.us/search2.htm
28 See Former R.C. § 2929.41 (E) stated, in pertinent part, "Consecutive terms of
imprisonment imposed shall not exceed; (2) An aggregate minimum term of fifteen years,
… when the consecutive terms imposed are for felonies other than aggravated murder or
murder."
29 It is possible that this figure of 15 years could be diminished by good time, reducing the
figure to 10.6 years. However, for our purposes, just the existence of a cap is germane.
35
rendering this statute of the Ohio General Assembly a vain act.
99. The Parole Board has no authority to overrule and render a statute of
the Ohio General Assembly a vain act. In the same regard, the Bureau of
Sentence Computation of the Department of Rehabilitation and Correction has
no authority to refuse to apply a statute of Ohio's General Assembly.
100. Mr. Walder represents a sub-class of Plaintiffs eligible for habeas
corpus relief. All of the members of this class have committed multiple sex
offenses. The sentences issued by their trial courts have been run consecutive.
The Parole Board has also run their guideline sentences consecutive, resulting
in a sentence requiring anywhere from three to nine decades of service, before
their initial parole review. In Mr. Walder’s case, the Parole Board has
modified his trial court sentence by postponing his eligibility for parole until
he is certain to be dead.
101. In postponing the initial parole review in cases such as this, the
Parole Board has exercised authority exceeding any Ohio court. In doing so,
the de facto actual sentence issued by his trial court has been amended from
Life with eligibility for parole to Life without parole. The Parole Board and the
Bureau of Sentence Computation have no authority to independently review
and then modify Mr. Walder’s trial court sentence. Upon serving the minimum
sentence mandated by his trial court, as modified by caps imposed by R.C. §
36
2929.41 (E), Mr. Walder and similarly situated Plaintiffs will begin serving a
prison sentence reflecting an ultra vires exercise of authority. Consequently,
this fragment of his sentence is void. Mr. Walker and other similarly situated
Plaintiffs cannot be deprived of their right to a parole hearing. Further, the
habeas corpus statute may be invoked to enforce their right to a parole hearing.
102. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Robert Walder
and similarly situated Named Plaintiffs constitute an identifiable sub-class
which qualifies for relief afforded by the Writ of Habeas Corpus.
WHEREUPON, in addition to remedies previously requested under
prior claims and causes of action in the Amended Complaint and the first
supplement for monetary damages, Plaintiffs further request the following;
(1) That each of the sub-classes discussed under each of these
representative clients be considered a sub-class and considered en mass as
follows: by distilling each sub-class to its uniquely different elements;
matching Plaintiffs whose situations mirror these elements; and determining
the applicability of the habeas corpus statute to each sub-class, after individual
members of the sub-class have been duly qualified.
(2) To require Defendants to show cause why these representative
clients and similarly situated Plaintiffs should not be afforded the remedy of
37
immediate release; or, for a projected release date when their legitimate trial
court sentence has been fully served; or, for an order enjoining these
Defendants to cease and desist from modifying their court sentences and to
further prohibit these Defendants from depriving said Plaintiffs of their earned
and, in some cases, vested opportunities for release; and,
(3) If unable to demonstrate any good reason for continuing to
incarcerate these Plaintiffs, to release said Plaintiffs from custody; and,
(4) To be accorded any and all further relief provided by the Writ of
Habeas Corpus.
Respectfully submitted by,
/s/ Norman L. Sirak
__________________
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
Reply With Quote
  #3  
Old 05-24-2005, 12:36 PM
bebopp7's Avatar
bebopp7 bebopp7 is offline
Registered User
 

Join Date: Dec 2002
Location: Fairborn, Ohio
Posts: 605
Thanks: 0
Thanked 7 Times in 4 Posts
Default

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.
Supplemental Brief to
MARGARETTE GHEE, et al. Plaintiffs Rule 56 (c)
Motion for Summary
Defendants. Judgment
In accordance with this Court’s Order on September 30, 2004,1
Plaintiffs hereby file their Supplemental Brief concerning Blakely Issues.
This Supplemental Brief and its accompanying Motion to file a
Supplemental Complaint pursuant to Fed. R. Civ. P. 15(d) are hereby
incorporated into our Rule 56 (c) Motion.
Two Supreme Court decisions, U.S. v. Booker 2and Blakely v.
Washington,3 have been issued while these proceedings have been subject to
1 See Document No. 249.
2 543 U.S. ___(2005), [hereafter Booker]. A second decision issued with Booker, U.S. v.
Fanfan, 543 U.S. ___ (2005), deals with Federal Sentencing Guidelines and is not germane.
2
an indefinite stay.4 As a result of these decisions, the rights for some of our
Named Plaintiffs, estimated at 55% of the men and 80% of the women, have
crystallized into a new Habeas Corpus cause of action pursuant to 28 U.S.C.
§ 2241. Accordingly, in a companion filing, we are submitting a
Supplemental Complaint based upon rights which have come into existence
since our Amended Complaint and our Rule 56(c) Motion were filed in
2003. There is nothing in this Supplemental Complaint which overrules or
changes anything set forth in our Amended Complaint. Our Amended
Complaint remains in full force precisely as it was filed.
The subject of federal habeas corpus is among the most complex areas
of federal litigation. It is governed by a combination of statutes, the Federal
Rules of Civil Procedure, two sets of special procedural rules promulgated
solely for habeas corpus petitions and a large body of case law interpreting
these statutes.5 In the attached Memorandum of Law, which is hereby
incorporated by reference and also made a part of our Rule 56(c) Motion,
these issues are necessarily addressed within the context of this class action
3 124 S. Ct. 2531 (2004) [hereafter Blakely].
4 The indefinite stay was imposed in July of 2004, and the Blakely decision was rendered in
late June. However, these proceedings were under the shadow of a looming indefinite stay
prior to the publication of the Blakely decision. For this reason, there is nothing in the
record, until now, discussing either Blakely or Booker.
5 In a proceeding under 28 U.S.C. § 2241, the prisoner is referenced as the "applicant," and
the filing is referred to as the "application," unlike 28 U.S.C. § 2254 where a prisoner is the
petitioner
3
and with due regard for the civil rights claims set forth previously in our
Amended Complaint.
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
Certificate of Service
A copy of the foregoing has been sent via the electronic filing system
and via U.S. mail to the Office of the Attorney General, Corrections
Litigation Section, to the attention of Phillip King, Esq. and Scott Campbell,
Esq., at 140 East Town Street, 14th Floor, Columbus, Ohio 43215, this 24th
day of May, 2005.
/s/ Norman L. Sirak
By _________________
Norman Sirak
__________________
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
Reply With Quote
  #4  
Old 05-24-2005, 12:39 PM
bebopp7's Avatar
bebopp7 bebopp7 is offline
Registered User
 

Join Date: Dec 2002
Location: Fairborn, Ohio
Posts: 605
Thanks: 0
Thanked 7 Times in 4 Posts
Default Morw pleadings filed by Attorney SIrak

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.
Supplemental Brief to
MARGARETTE GHEE, et al. Plaintiffs Rule 56 (c)
Motion for Summary
Defendants. Judgment
In accordance with this Court’s Order on September 30, 2004,1
Plaintiffs hereby file their Supplemental Brief concerning Blakely Issues.
This Supplemental Brief and its accompanying Motion to file a
Supplemental Complaint pursuant to Fed. R. Civ. P. 15(d) are hereby
incorporated into our Rule 56 (c) Motion.
Two Supreme Court decisions, U.S. v. Booker 2and Blakely v.
Washington,3 have been issued while these proceedings have been subject to
1 See Document No. 249.
2 543 U.S. ___(2005), [hereafter Booker]. A second decision issued with Booker, U.S. v.
Fanfan, 543 U.S. ___ (2005), deals with Federal Sentencing Guidelines and is not germane.
2
an indefinite stay.4 As a result of these decisions, the rights for some of our
Named Plaintiffs, estimated at 55% of the men and 80% of the women, have
crystallized into a new Habeas Corpus cause of action pursuant to 28 U.S.C.
§ 2241. Accordingly, in a companion filing, we are submitting a
Supplemental Complaint based upon rights which have come into existence
since our Amended Complaint and our Rule 56(c) Motion were filed in
2003. There is nothing in this Supplemental Complaint which overrules or
changes anything set forth in our Amended Complaint. Our Amended
Complaint remains in full force precisely as it was filed.
The subject of federal habeas corpus is among the most complex areas
of federal litigation. It is governed by a combination of statutes, the Federal
Rules of Civil Procedure, two sets of special procedural rules promulgated
solely for habeas corpus petitions and a large body of case law interpreting
these statutes.5 In the attached Memorandum of Law, which is hereby
incorporated by reference and also made a part of our Rule 56(c) Motion,
these issues are necessarily addressed within the context of this class action
3 124 S. Ct. 2531 (2004) [hereafter Blakely].
4 The indefinite stay was imposed in July of 2004, and the Blakely decision was rendered in
late June. However, these proceedings were under the shadow of a looming indefinite stay
prior to the publication of the Blakely decision. For this reason, there is nothing in the
record, until now, discussing either Blakely or Booker.
5 In a proceeding under 28 U.S.C. § 2241, the prisoner is referenced as the "applicant," and
the filing is referred to as the "application," unlike 28 U.S.C. § 2254 where a prisoner is the
petitioner
3
and with due regard for the civil rights claims set forth previously in our
Amended Complaint.
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
Certificate of Service
A copy of the foregoing has been sent via the electronic filing system
and via U.S. mail to the Office of the Attorney General, Corrections
Litigation Section, to the attention of Phillip King, Esq. and Scott Campbell,
Esq., at 140 East Town Street, 14th Floor, Columbus, Ohio 43215, this 24th
day of May, 2005.
/s/ Norman L. Sirak
By _________________
Norman Sirak
__________________
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
Reply With Quote
  #5  
Old 05-24-2005, 12:44 PM
bebopp7's Avatar
bebopp7 bebopp7 is offline
Registered User
 

Join Date: Dec 2002
Location: Fairborn, Ohio
Posts: 605
Thanks: 0
Thanked 7 Times in 4 Posts
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.
14
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.
19
__________________
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
Reply With Quote
  #6  
Old 05-24-2005, 12:48 PM
bebopp7's Avatar
bebopp7 bebopp7 is offline
Registered User
 

Join Date: Dec 2002
Location: Fairborn, Ohio
Posts: 605
Thanks: 0
Thanked 7 Times in 4 Posts
Default continued

19
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.
20
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.
21
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.
22
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.
23
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].
24
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.
25
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.
26
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].
27
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)].
28
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.
29
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 http://www.drc.state.oh.us/search2.htm / 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
found.
30
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.
31
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
proceedings."]
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.
33
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
court."
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).
34
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
1
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
35
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."
36
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
5.
37
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.
38
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].
39
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).
40
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.
41
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.
42
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.
43
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
scheme.
"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."
Reply With Quote
  #7  
Old 05-24-2005, 12:49 PM
bebopp7's Avatar
bebopp7 bebopp7 is offline
Registered User
 

Join Date: Dec 2002
Location: Fairborn, Ohio
Posts: 605
Thanks: 0
Thanked 7 Times in 4 Posts
Default continued

Prisoners, James Crawford’s separation of powers claim has already been
validated by an Ohio appellate court.114 Like the issues raised in Plyler and Death
Row Prisoners, James Crawford’s problem requires both remedies; (1) declaratory
and injunctive relief preventing the Parole Board from considering core questions
of guilt or innocence and substituting its judgment for an Article IV trial court's
verdict in the future and, (2) immediate release for inmates victimized by this
Parole Board practice because it resulted in an ultra vires sentence which is void.
There is a pivotal difference between Plyler, Death Row Prisoners and
James Crawford's plight which separates these cases from the garden variety claim
typically swallowed up by a habeas prayer under the authority of Preiser. In Plyler,
Death Row Prisoners and James Crawford’s case, the remedy afforded by § 1983
and the remedy afforded by habeas are constituent ingredients embedded in the
same case or controversy for Article III purposes. This accounts for their inherent
consistency. While § 1983 establishes a right to relief, it does not grant a complete
remedy. While habeas affords complete relief, it is not designed and equipped to
establish the factual predicate necessary for engaging its surgical and restricted
remedy. Standing alone, each statute is impotent. The quality of being indigenous
to the same case or controversy necessitates merging these statues to achieve relief.
114 Document No. 262, Exhibit A, Ankrom, Slip Opinion at p. 30.
45
One Year Jurisdictional Limitation for Filing Habeas Corpus Claims
In 1996, a one year statute of limitations was imposed upon habeas motions
by the Antiterrorism and Effective Death Penalty Act.115 There are four prongs to
this one year statue of limitation. None of the Plaintiffs before this Court are
challenging their stale state court judgments or sentences. The first prong does not
apply.116 Similarly, the 2nd and 4th prongs do not apply.117 However, the facts of this
case fit very comfortably within the 3rd prong, “the date on which the constitutional
right asserted was initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review.”118 Two requirements must be satisfied to engage this
provision. First, we must establish the date when a new constitutional right was
recognized by the U.S. Supreme Court and, of course, our acting within one year of
this date. Second, we must prove that these ultra vires Parole Board sentences are
subject to collateral attack by way of this New Constitutional Rule.
The 1st Ohio Appellate District initially concluded that Blakely would not
115 See 28 U.S.C. 2244 (d) (1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court.
116 See 28 U.S.C. 2244 (d) (1) (A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
117 See 28 U.S.C. 2244 (d) (1) (B) the date an impediment to filing an application created by State
action is removed, and (D) the date when factual predicate of the claim presented could have been
discovered through the exercise of due diligence.
118 See 28 U.S.C. 2244 (d)(1)(C) Although the New Constitutional Rule relies upon the 6th
Amendment Right to jury trial, its impact is felt in the distribution of powers between the Judiciary,
which is limited, and the jury, which is expanded. A separation of powers theory could also be used.
46
materially affect Ohio’s sentencing scheme.119 The term prescribed statutory
maximum sentence, as clarified in Blakely, was deemed to be synonymous with
Ohio’s statutory range. After the Booker decision was released, Ohio’s 1st
Appellate District admitted that it was wrong.
“The prescribed statutory maximum sentence is not the maximum
sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.”120
[Internal quotation marks deleted.]
Accordingly, the trigger for a renewed one year limitation period under the
3rd prong is January 12, 2005, the date when Booker was decided.121
When a Supreme Court decision "results in a 'new rule,' that rule applies to
all criminal cases still pending on direct review." 122 A case announces a new rule
"if the result was not dictated by precedent existing at the time the defendant's
conviction became final."123 As previously explained, the decisions rendered by
Ohio’s Parole Board are ultra vires and void. Because these sentencing decisions
are not legally binding, they are always deemed pending and ripe to be challenged.
119 See State v. Eckstein, 1st Oh. App. Dist. No. C-030139, 2004 – Ohio – 5059, Appendix to
Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’ Exhibit 3; The reasoning
behind this position was that Ohio’s sentencing scheme did not permit a sentencing court to deviate
from a prescribed range of sentences for any felony. On this basis, Ohio’s sentencing guidelines
were distinguished from guidelines employed by Washington State in Blakely.
120 State v. Bruce, First Ohio Appellate Dist., No. C-040421 (Feb. 4, 2005), slip opinion at p. 4, see
Appendix to Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’ Exhibit 4.
121 If Blakely is deemed to be the relevant trigger, Plaintiffs are still filing this action in a timely
manner, as Blakely was decided on June 25, 2004, which is still within the year required.
122 Schriro v. Summerlin, 124 S. Ct. 2519, 2522 (2004)
123 Blakely v. Washington, 124 S. Ct. 2531, 2549 (2004).
47
The Exhaustion Requirement
Both the U.S. Congress and Supreme Court require exhaustion of state
remedies before engaging the federal habeas corpus statute.124 The Supreme Court's
exhaustion requirement is based upon the doctrine of comity.125 Before a state
prisoner can engage habeas corpus, they must first demonstrate that they have
exhausted "remedies available in the courts of the state, or (B) (i) there is an
absence of available state corrective process; or (ii) circumstances exist that render
such process ineffective to protect the rights of the applicant."126 [Emphasis added.]
Named Plaintiffs present the unusual case where there is both an absence of
state remedies to exhaust and the process which does exist is ineffective to protect
the rights of petitioners. We begin with the first cardinal canon for interpreting a
state's statute. A court must presume that a legislature says in a statute what it
means and means in a statute what it says. When the words of a statute are
unambiguous, this first canon is also the last. Judicial inquiry is complete.
124 For Supreme Court authority, see Rose v. Lundy, 455 U.S. 509 (1982). The U.S. Congressional
authority, see 28 U.S.C. 2254 (b).
125 The doctrine of comity stipulates that one court should defer action on causes properly within
its jurisdiction until courts of another sovereignty with concurrent powers and already cognizant
of the litigation have had an opportunity to pass upon the matter.” See Rose v. Lundy, 455 U.S.
509, at 514 (1982).
126 See 28 U.S.C. § 2254 (b).
48
The authority for releasing an inmate on parole is set forth below in R.C. §
2967.03.
"The adult parole authority may exercise its functions and duties in
relation to the pardon, commutation, or reprieve of a convict upon the
direction of the governor or upon its own initiative, and in relation to the
parole of a prisoner eligible for parole, upon the initiative of the head of
the institution where the prisoner is confined, or upon its own initiative.
When a prisoner becomes eligible for parole, the head of the institution
in which such prisoner is confined shall notify the authority in the
manner prescribed by the authority. The authority may investigate and
examine, or cause the investigation and examination of, prisoners
confined in state correctional institutions concerning their conduct
therein, their mental and moral qualities and characteristics, their
knowledge of a trade or profession, their former means of livelihood,
their family relationships and any other matters affecting their fitness to
be at liberty without being a threat to society..."127
There is no mention of the Judiciary and no right to appeal an adverse parole
decision in this statute. Ohio Administrative Code § 5120:1-1-07 completes R.C. §
2967.03, providing the mechanism for granting a parole. This rule states:
“(A) An inmate may be released on or about the date of his
eligibility for release, unless the parole board, acting pursuant to rule
5120:1-1-10 of the Administrative Code, determines that he should
not be released on such date for one or more of the following
reasons:” 128 [Emphasis added.]
Again, the judiciary has been excluded. Ohio’s Parole Board exercises
exclusive jurisdiction over granting and revoking paroles. R.C. § 2967.15 states:
(B) …prior to the revocation by the adult parole authority of a
person's pardon, parole, transitional control, or other release and prior
127 R.C. § 2967.03
128 Ohio Admin. Code § 5120:1-1-07 (A)
49
to the imposition by the parole board or adult parole authority of a
new prison term as a post release control sanction for a person, the
adult parole authority shall grant the person a hearing in accordance
with rules adopted by the department of rehabilitation and correction
under Chapter 119 of the Revised Code…." 129 [Emphasis added.]
Finally, Policy No. 501-36130 governing implementation of the parole
guidelines provides no option for challenging an adverse parole decision in court.
The message from Ohio's legislature is clear and unambiguous. The
judiciary has been deliberately excluded from the administration of Ohio's post
conviction parole process.131 This eliminates any concerns about comity. Since
Ohio courts have never been vested with jurisdiction over parole matters, there are
no parallel proceedings, and there can be no concerns about claim preclusion.
Inadequate Relief through Judicial Review
There is nothing in Ohio's Code conferring any authority upon an Ohio court
to order a parole. Even Ohio's Supreme Court is powerless to order an inmate
paroled. On December 18, 2002, Ohio's high court tried. In its Layne decision, the
Ohio Supreme Court noted that Mr. Houston should have served 10 to 15 years.132
129 R.C. § 2967.15 (B).
130 See Document 47, Defendants Appendix to Motion for Summary Judgment, Defendants' Item B,
ODRC Policy 501-36.
131 See also Plaintiffs' Original Complaint, Paragraph 114(a), stating "matters of parole are solely
under the jurisdiction of the Ohio Parole Board and even the Governor has no legal authority to
intervene in the decisions of the Ohio Parole Board." See also, Document No. 1, Plaintiff Exhibit
26, Letter from Margarette Ghee to Mary Ann Amato and Plaintiff Exhibit 27 consisting of two
letters from Heather Reed, Assistant Deputy Legal Counsel to Governor Taft, concurring with Ms.
Ghee, stating that the Governor has no legal authority to intervene in a Parole Board decision.
132 This was actually an error. Gerald Houston’s true guideline was 84 to 120 months [7 – 10 years].
50
At the time of deciding Layne, he had served 20 years and 10 months.133 Reflecting
the urgency of this matter, Allen County Judge Warren ordered the Parole Board to
conduct a new hearing for Mr. Houston consistent with Layne the next month. The
Parole Board waited until May 20, 2003 before giving Mr. Houston another
hearing. Instead of rendering a decision consistent with Layne, Parole Board
Member Bedra simply placed Mr. Houston in his proper guideline – Category 9
requiring at most 120 months after Mr. Houston had served 257 months. No future
hearing was scheduled and no indication was given as to when, if ever, Houston
could be paroled at this May, 2003 hearing.134 On March 22, 2004, 14 months after
Layne, Mr. Houston was finally paroled.
The Layne decision engaged declaratory relief. In a perfect world, we
expect subjects of a declaratory judgment to do as they have been ordered. Gerald
Houston is living, breathing proof that the Parole Board, the subject of the Layne
decision, is not perfect. Severing the bond between the offense score and guideline
range upon which the Layne decision has been built – as Board Member Bedra did
by placing Houston in category 9 requiring at most 120 months when 257 months
had been served and then continuing Houston indefinitely – is more proof of
imperfection. In practice, Layne's declaratory relief has proven to be inadequate.
The judiciary has been excluded from the statute and from the administrative
133 See Layne, 97 Ohio St. 3d at 460.
134 See Document No. 203, Plaintiffs' Exhibit 61, affidavit and exhibits of Gerald Houston.
51
rule granting paroles, as well as from the policy governing the granting of paroles.
Ohio's judiciary has also been excluded from the statute dictating the revocation of
paroles. The Judiciary has been given no right to exercise judicial review, because
there is no right to appeal either an adverse parole decision or the revocation of a
parole. Finally, the inability of Ohio’s Supreme Court to even order an inmate
paroled, further confirms the absence of a proper corrective process for wrongfully
denying paroles, revoking paroles and conducting judicial review of parole denials.
Inadequate Relief through Administrative Appeals
Ohio inmates can appeal a parole decision by seeking reconsideration from
the Parole Board's Quality Assurance Group.135 To engage this review, an inmate
must prove the existence of new information or information not previously
considered.136 These are formidable hurdles. Ohio inmates are not allowed access
to their parole file. It is impossible to ascertain what is new or has not been
considered, without discovering what the Parole Board knows. The essence of a
135 See Document 47, Defendants Appendix to Motion for Summary Judgment, Defendants' Item C,
ODRC Policy 501-38. This policy is now referenced as ODRC Policy No. 105-PBD-04. [See
Document No. 209, Plaintiffs Exhibit 135, Reconsideration of Parole # 105-PBD-04]. Policy No.
501-38 is virtually identical to 105-PBD-04. See also Letters from Hearing Officer E.M. Colan to
Craig Davis and Clyde Cannell, dated February 16, 2005, Appendix to Plaintiffs’ Brief on Blakely
Issues, Part I - Supplemental Brief, Plaintiffs’ Exhibits 10 and 11, attesting to the stunted review
permitted. Copies have been sent to opposing counsel for authentication.
136 See Policy No. 501-38, Part VI Procedure, B; 105-PBD-04 Part VI, Procedure, B. "The request
for reconsideration must be based on, and specifically refer to, relevant and significant NEW
information that was either no available or not considered at the time of the hearing or a request for
a reconsideration must specifically allege that a correction should be made in the application of the
parole release guidelines." [NEW appears in all caps in the text of this policy.]
52
reconsideration hearing – determining whether a result has been decided
incorrectly upon existing information – has been deliberately omitted from the
Quality Assurance Group's sphere of inquiry. The converse of this mission
statement doubles as irrefutable proof of an absence of corrective process. The role
of Quality Assurance rests upon the premise that every panel decision is correct.
Members of the Parole Board’s Quality Assurance Group are analysts,
hearing officers and occasionally Parole Board Members. Authors of quality
assurance letters can be participants on parole panels. In essence, they are passing
upon the work of their peers. The entire decision-making framework for applying
guidelines initially and challenging these guidelines once applied is determined by
the same group of decision-makers. The author of a Quality Assurance Review
letter cannot be neutral or detached because, once an inmate has been held beyond
their guideline, there is a substantial incentive to vindicate this lengthy detention
due to similar decisions rendered by the reviewer upon virtually identical and
legally indistinguishable facts. Invariably, reconsideration letters are perfunctory
approvals of the original decision. This stunted and insular review process attests
and confirms the existence of circumstances rendering such corrective process
ineffective to protect the rights of a petitioning inmate.
Inadequate Judicial Oversight of Parole Board Operations
In its Wilkinson brief to the Supreme Court, Ohio's Attorney General stated
53
that inmates have two court avenues for contesting an adverse parole decision, (1)
declaratory judgment and (2) mandamus.137 These options are both illusory.
Support for the premise that Ohio inmates have two avenues into an Ohio
court to contest their parole decision relies chiefly upon a 1994 Ohio Supreme
Court decision Hattie v. Anderson.138 Like the constricted administrative appeal
just discussed, Hattie incorporates equally severe restraints. Hattie stipulates that
the Ohio statute (i.e. R.C. § 2967.03) conferring authority to grant a parole "creates
no expectancy of parole or a constitutional liberty interest sufficient to establish a
right of procedural due process."139 This threshold hurdle shrinks the avenue down
to a sidewalk. Next, before engaging declaratory relief, Hattie further requires a
showing that application of the parole guidelines violates Ohio's Constitution.140
This narrows our sidewalk to a taped stripe.141 These hurdles; (1) overcoming the
threshold question of no expectancy of parole and no right to procedural due
process and, (2) raising an issue of constitutional proportions, renders the
Declaratory Judgment route hollow for all but the most skilled pro se litigators.
Under the Ohio Supreme Court’s Hattie decision, inmates have been granted
the right to challenge the constitutionality of their parole proceeding, but they
137 Brief for Petitioner Reginald Wilkinson , Case No. 03-287, at p. 10 (dated July 19, 2004), see
Appendix to Plaintiffs’ Brief on Blakely Issues, Part I – Supplemental Brief, Plaintiffs’ Exhibit 1
138 Hattie v. Anderson, 626 N.E.2d 67 (Oh. 1994) [hereafter Hattie].
139 Hattie, 626 N.E.2d at 69.
140 Hattie, 626 N.E.2d at 71.
141 Demonstrating this difficulty, the current Parole Guidelines went into effect on March 1, 1998. It
took 4 years and 9 months – until Layne – to satisfy this formula and challenge these rules.
54
cannot challenge the result, and they cannot secure relief from any particular
finding. This explains why Gerald Houston sat in prison for 14 months after his
parole proceeding was clearly found to be unconstitutional. In other words, the
utility of an inmate’s challenge will be limited to the benefit conferred upon a law
professor, as they instruct students on intricacies of Ohio’s constitutional law.
Hattie demonstrates both an absence of available state corrective process and how
the process which does exist is ineffective to protect the rights of petitioners.
To rebut these hard truths, the State will no doubt produce an astronomical
number of inmate cases seeking relief through Ohio courts. The real story lies in
the number of lawsuits dismissed pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted. With only a few exceptions, this net snares
all of them. The fate of William Dotson and Rogerico Johnson went the route of
Rule 12(b)(6). At the end of the day, we must return to the language in Ohio
statutes and rules. Inmates have been given no remedies through Ohio courts.
The remedy of mandamus is also discussed in Hattie.142 In practice, Parole
Board discretion totally blockades the mandamus avenue. Inmates should not be
required to pursue conjectural remedies – such as mandamus – when these
complaints are destined to become vain acts. As Justice Rutledge once stated, 143
"The exhaustion of state remedies rule should not be stretched to
142 Hattie, 626 N.E.2d at 70.
143 Marino v. Ragen, 332 U.S. 561 (1947).
55
the absurdity of requiring the exhaustion of … separate remedies when
at the outset a petitioner cannot intelligently select the proper way, and
in conclusion he may find only that none of the alternatives is
appropriate or effective."144
Substantive Prerequisite – the Unreasonable Application Clause
James Crawford is challenging the authority of the Parole Board to
contemplate core questions of guilt or innocence and to substitute its judgment for
the verdict of an Article IV Ohio court, resulting in a new sentence with an upward
departure from the standard range of time required for his crime. Mr. Crawford is
further challenging the manner in which he has been prosecuted, judged and
sentenced for new criminal behavior, because it has not been done the right way.
These substantive legal issues have all been addressed in Brey, Layne and Ankrom.
According to these Ohio cases, these practices are prohibited and Mr. Crawford
should not be in prison. Unfortunately, Mr. Crawford is still very much in prison –
because the Parole Board insists upon exercising its ultra vires authority.
The core issue beneath both of Mr. Crawford’s claims has been identified
and championed by Ohio's Attorney General. In the Attorney General's opinion,
Ohio's Parole Board has been given the right to exercise sentencing authority.
"The decisions under attack here – Parole Board decisions
determining that the Respondents should serve specified periods of
time in prison before again being considered for release – are
144 Marino v. Ragen, 332 U.S. at 568.
56
sentencing decisions. Ohio law recognizes parole decisions as such,
and this Court also understands parole in that manner.
"Under Ohio law, sentencing authority is divided between the
court and the Adult Parole Authority ("APA"). After conviction, the
courts set the minimum and maximum terms of any prison sentences.
Woods v. Telb, 89 Ohio St. 3d 504, 511, 733 N.E.2d 1103 (2000 Oh.).
"But … for as long as parole has existed in Ohio, the executive branch
(the APA and its predecessors) has had absolute discretion over that
portion of an offender's sentence between those termini. Id. at 512. 145
While Ohio's Supreme Court has tried to restrain Parole Board discretion,
Mr. Crawford, as well as Greg Hunsaker, Dennis McCoy, Michael Dennis, Edward
Fadgen and thousands of additional Plaintiffs bear living witness to the fact that
these decisions are not followed, and do not appear to be amenable to enforcement.
There is either an absence of corrective authority or an absence of will to apply the
law or both. Regardless, denial and ineptitude cannot excuse unlawful exercise of
authority, particularly when conduct results in detention contrary to federal law.
The Parole Board's sentencing authority must be analyzed in light of 28
U.S.C. § 2254(d), which reads as follows:
An application for writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
145 See Wilkinson v. Dotson, Brief for Petitioner Reginald Wilkinson to the U.S. Supreme Court,
Case No. 03-287, at p. 20 (dated July 19, 2004), Appendix to Plaintiffs’ Brief on Blakely Issues,
Part I – Supplemental Brief, Plaintiffs’ Exhibit 1.
57
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
A state court decision is an unreasonable application of clearly established
Federal law, as determined by the Supreme Court of the United States, when the state
court identifies the correct governing legal rule from Supreme Court cases, but
unreasonably applies it to the facts of a particular case, or" when the state court either
unreasonably extends a legal principle from Supreme Court precedent to a new
context where it would not apply or unreasonably refuses to extend that principle to a
new context where it should apply."146 The unreasonable application clause
"requires the state court decision to be more than incorrect or erroneous. The state
court's application of a clearly established law must be objectively unreasonable."147
In our case, the Parole Board has refused to extend the principal that any fact
that can prolong the duration of a prison sentence must be acknowledged in a plea
or found to be true beyond a reasonable doubt by a jury to a new context where it
should apply. Specifically, the Parole Board must be guided by the same rule now
governing Ohio courts. Only facts found to be true by the jury or contained in the
plea can be used as a basis for assigning time. The Parole Board's current
guidelines are conflicted beyond repair with this current reading of the Sixth
146 Williams v. Taylor, 529 U.S. 362, 407 (2000).
147 Lockyer v. Andrade, 538 U.S. 63, 75 (2000).
58
Amendment of the U.S. Constitution. Nevertheless, the Parole Board remains
steadfast in its insistence to apply these guidelines and use them to dictate the fates
of Old Law Ohio inmates. This conduct is more than incorrect of erroneous.
Continuing adherence to these parole guidelines is objectively unreasonable.
The exercise of Ohio Parole Board authority in Mr. Crawford's case and
thousands of others similarly situated cannot be reconciled with the New
Constitutional Rule developed in Booker, Blakely and its progeny. At the same
time, there is clearly an absence of corrective authority in Ohio to put this agency
back on its track. These Plaintiffs are currently trapped in an ultra vires and illegal
sentence, with only one hope for redemption. This case speaks to the very essence
and meaning of the writ of habeas corpus, for it was ingrained by our founders into
the U.S. Constitution for specifically this purpose.
Conclusion
In a civilized society, government must always be accountable to the
judiciary for a person's imprisonment. These Defendants have lost their way. On
occasion, this happens. We held citizens of Japanese descent in relocation centers
during World War II. In 1833, South Carolina felt entitled to imprison any person
acting on behalf of the federal government. The Great Writ has not been called "the
59
most celebrated writ in the English law" 148 for naught. It is there to rescue our
society from the tyranny of zealots as well as men with good intentions but
mistaken notions of justice.
Entering and serving every day of a guideline range in the current parole
guidelines is no minor matter. When compared to minimum sentences set by trial
courts, these guideline ranges are pitched high. To understand how high, in 534 out
of 600 clients surveyed, the average trial court minimum sentence was 6.4 years.149
These Plaintiffs had to serve another 5.3 years just to reach the entry point of the
guideline range matching their conviction. This condition was exacerbated by the
widespread use of upward departures. To illustrate, these same 600 Plaintiffs had
to serve another 8.9 years just to enter their assigned guideline range. 150 Typically,
Plaintiffs were placed near the high end or at a mid-point in their guideline range
before receiving a hearing. In 526 out of 600 cases, after serving on average 6.1
years to reach their initial hearing, these plaintiffs had to serve another 12.4 years
or 18.5 years in all before they could receive a meaningful release hearing.151 But
even this was insufficient. To appease the Parole Board's voracious appetite for
vengeance, thousands of Ohio inmates have served every day of their guideline
148 3 Blackstone Commentaries 129.
149 See Document No. 196, Plaintiffs' Exhibits, Charts and Graphs, Chart I, and Document No. 172,
Motion for Partial Summary Judgment for Separation of Powers and Memorandum in Support, at
footnotes 35 to 42 and accompanying text.
150 See Document No. 196, Plaintiffs' Exhibits, Charts and Graphs, Chart II.
151 See Document No. 196, Plaintiffs' Exhibits, Charts and Graphs, Chart III.
60
range, and years beyond. The Parole Board has no one to blame for this
predicament but itself. This problem has been festering ever since 1995.
Under Ohio's Old Law, the maximum sentence acted as a deterrent. Nobody
expected an inmate to literally serve this much time. The current Parole Guidelines
were designed to render the minimum sentence a vain act, and make the maximum
sentence the only sentence. Since 1998, they have been succeeding. The Great Writ
needs to be dusted off and put to work. Restoring the Judiciary to its rightful place
and checking the usurpation of authority by administrators is precisely the kind of
work envisioned by this Country's Founders for the Writ of Habeas Corpus.
For all of the foregoing reasons, Plaintiffs add this Supplemental Brief to our
Rule 56 (c) Motion, in support of our Rule 15(d) Supplemental Complaint.
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

Certificate of Service
A copy of the foregoing has been sent via the electronic filing system and
via U.S. mail to the Office of the Attorney General, Corrections Litigation Section,
to the attention of Phillip King, Esq. and Scott Campbell, Esq., at 140 East Town
Street, 14th Floor, Columbus, Ohio 43215, this 24th day of May, 2005.
/s/ Norman L. Sirak
By _________________
Norman Sirak
__________________
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
Reply With Quote
  #8  
Old 05-24-2005, 05:55 PM
MsChiku's Avatar
MsChiku MsChiku is offline
Prayerful Ohio Member
Donation Award 
 

Join Date: Jul 2003
Location: Ohio, USA
Posts: 5,437
Thanks: 31
Thanked 83 Times in 47 Posts
Default

thanks again (((Bebopp)))
__________________
~Sabrena~


"...for this too shall pass..."
Reply With Quote
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Forum Jump

Similar Threads
Thread Thread Starter Forum Replies Last Post
Important Legal Info For Everyone At Pto KConnor56 Prison & Criminal Legal Help! 36 01-27-2007 02:44 PM
Attorney Sirak sueing more Ohio prison officials bebopp7 Ohio Parole, Probation, Work Release, Halfway Houses & Community Service 3 03-16-2005 02:35 PM
Represented by Pro Bono Atty? JamesGirl Prison & Criminal Legal Help! 11 05-03-2004 07:39 PM
on parole dates for lifers , case in court smith/ state for research sunkissed California Prison & Criminal Justice News & Events + 3 Strikes 3 11-30-2003 11:00 PM


All times are GMT -6. The time now is 05:55 AM.
Copyright © 2001- 2019 Prison Talk Online
Powered by vBulletin® Version 3.7.4
Copyright ©2000 - 2020, Jelsoft Enterprises Ltd.
Website Design & Custom vBulletin Skins by: Relivo Media
Message Board Statistics