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 02-25-2006, 02:47 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 Attorney Sirak has filed the appeals

Here is what Attorney Siak has posted on his web site

February 24, 2006

To : Clients and Sponsors

From: Norman Sirak

Re : Progress Report for February 24, 2006

We have just filed two appeals. The first appeal is for the Civil Rights lawsuit. The second appeal is an Application for a Certificate of Appealability. This second appeal is for our habeas corpus lawsuit.

Last week, we brought in Webster Bivens, the Plaintiff in a landmark U.S. Supreme Court decision that created a new cause of action, called a Bivens action. Just as we are bringing a lawsuit against state employees, the Bivens action created by this lawsuit creates a cause of action against a Federal employee if rights have been violated. Webster is considered an expert in the field of habeas corpus, although he is not a lawyer. He stayed with us for a week and counseled us on the drafting of a Certificate of Appealability. Until I met Webster, I was unaware of this document.

Application for a Certificate of Appealability

To preserve our appeal rights for the habeas corpus part of our lawsuit, we have to request a Certificate of Appealability. Unlike the Notice of Appeal for a civil rights action, this Certificate of Appealability is not a domino that falls simply because it is filed. The Court reviews this and decides whether or not there is good cause for an appeal. I think this is a good thing.

In the first place, I do not think the Court is expecting us to file a Certificate of Appealability. I doubt if anyone is expecting us to file this document. When someone does review this document, they are going to appreciate the fact that something rather large – a second class action law suit – has been omitted. Maybe, just maybe, they may begin wondering about what else might have been forgotten. I took a lot of care and time in drafting this Certificate of Appealability, and Leonard Yelsky also gave it a review and made some very helpful suggestions. We believe that it might be one of the best Certificates of Appealability that the Court has seen. I expect this to be approved. If for any reason it is not approved, we can apply directly to the Sixth Circuit, and I am confident that it will be accepted there.

Draft of Legal Brief

This decision is tormenting me constantly. A miscarriage of justice has occurred. I have been working at finding flaws in this decision since it was issued. In the past nearly three weeks, I have found major flaws. Errors like Arbitrary and Capricious Decision Making, Plain Error and Manifest Error in Fact and Manifest Error in Law are practically embarrassments, and I have found not just one, but all of these errors in this decision. This has helped me cope, and I am sending this draft to you, in the hope that it will help you cope. I want to emphasize that this is a draft, quite distant from the final product. I consider this my research. So please read it in that manner. The final document will be much slimmer, it will cut right to the core of the issue and it will not be weighed down with unnecessary fact and commentary. For myself, I have to put everything out there in a first draft. As I go over it and over it, I gradually get a sense of what is indispensable and what is not.

Turning Adversity into Advantage

Something very basic has run off its tracks. We have to get this train back on its track. To do that, we need to turn this adversity into an advantage. In this appeal, I am not just seeking to get this reversed. I am seeking to get it returned with comments. When this comes back to our District Court – and I cannot imagine three Appellate Judges affirming this – I want us to be viewed as a victim of shoddy judicial work. I want the District Court to be angry with its own opinion and determined to do this job the way it needs to be done. This is what I call turning adversity into advantage, and that is my strategy now.

Sincerely,
Norman Sirak


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

JAMES CRAWFORD, et al. Judge: James Carr

Plaintiffs District Case: # 3:01CV7436

vs. Application for Certificate of Appealability

MARGARETTE GHEE, et al. Pursuant to 28 U.S.C. § 2253 (c)(1)

Defendants

James Crawford and all similarly situated Plaintiffs – Appellants, respectfully request a Certificate of Appealability and for good cause, state:

1. James Crawford is a Named Plaintiff in the civil rights class action lawsuit titled Michael v. Ghee, Case #3:01CV7436 [hereafter Michael v. Ghee]. In addition to Mr. Crawford, there is an estimated 2,000 Named Plaintiffs in the Michael v. Ghee civil rights lawsuit that are still incarcerated. This Certificate of Appealability is filed on behalf of these Named Plaintiffs in the Michael v. Ghee class action lawsuit. In addition to our Named Plaintiffs, the ultimate class, if Named Plaintiffs are successful, will encompass as well, all Ohio inmates convicted under Ohio's former sentencing law. Accordingly, this Certificate of Appealability is filed on behalf of all Old Law Ohio inmates.

2. On Feberuary 22, 2006, a Notice of Appeal was filed for all Named Plaintiffs in Michael v. Ghee, on behalf of incarcerated as well as no longer incarcerated Named Plaintiffs (Document No. 348). This application for a Certificate of Appealability springs from the same matrix of facts and possesses commonality of legal issues raised in Michael v. Ghee.

3. In referencing all Ohio Old Law inmates, this term includes: (1) all Ohio inmates with convictions prior to July 1, 1996 who are still incarcerated; (2) all Ohio inmates presently serving a New Law prison sentence, but subject to Parole Board discretion because of an outstanding remnant of unserved time under a prior Old Law conviction; (3) all technical parole violators with Old Law convictions; and (4) all Old Law inmates still under supervision.
Initiation of Habeas Corpus Claim

4. Michael v. Ghee was filed on July 20, 2001. At the time of filing, Plaintiffs were limited to seeking procedural relief. No legal basis existed for seeking relief through habeas corpus.

5. On July 12, 2004, the Michael v. Ghee lawsuit was stayed indefinitely while the Supreme Court considered Wilkinson v. Dotson, a case which could potentially have a dispositive impact upon Michael v. Ghee.

6. While this indefinite stay was imposed, the Supreme Court decided Blakely v. Washington. At a pre-trial conference on September 30, 2004, Plaintiffs asked for permission to supplement their pending Summary Judgment Motion with a Memorandum on Blakely Issues. The Court granted this request. [Document No. 249].

7. The inmates won Wilkinson v. Dotson. The stay imposed upon Michael v. Ghee was lifted on April 27, 2005 [Document No. 265].

8. By April of 2005, the U.S. Supreme Court decided U.S. v. Booker, a case very similar to Blakely. These two U.S. Supreme Court decisions, Blakely and Booker, together, altered previous thought in connection with the rights to a jury trial under the Sixth Amendment. Blakely and Booker overruled the force of law contained in the Federal Sentencing Guidelines, making these Federal Sentencing Guidelines advisory instead of mandatory.

9. The New Constitutional Rationale evolving from these decisions 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."

10. If a Federal judge cannot act on such guidelines, the rationale of law elucidated in Blakely and Booker is consistent with a holding that a Parole Board can and should be held to the same standard.

11. On account of the New Constitutional Rationale, a legal basis now existed for asserting a habeas corpus claim. Fed. R. Civ. P. 15(d) allows a party to seek leave to file a Supplemental Pleading if there are new developments since the date of the pleading sought to be supplemented. Plaintiffs filed a Motion seeking leave to file a supplemental pleading pursuant to Fed. R. Civ. P. 15(d) [Document No. 274]. This New Constitutional Rationale was the new development.

12. On May 24, 2005, the Court granted Plaintiffs leave to file a Supplemental Pleading pursuant to Fed. R. Civ. P. 15(d). [Document No. 277].

13. Plaintiffs filed their Supplemental Pleading and a Memorandum in Support. [Document No.'s 275 and 272 respectively]. On July 29, 2005, Defendants responded to Plaintiffs' brief. [Document No. 293]. Accordingly, this matter was fully briefed and decisional when the Court's Order was issued on February 1, 2006. [Document No. 345]. The Court's Order dismissing the case made no mention or ruling in connection with the pending class action for habeas corpus relief.

Applicable Law Engaged

14. Plaintiffs are primarily engaging § 2241, because their claims arise from the execution of a sentence as opposed to the imposition of a sentence. Plaintiffs are challenging Parole Board decisions, not trial court decisions. The 3rd prong of § 2241(c)(3) applies to our facts.

15. Because our Named Plaintiffs are state prisoners, they are also subject to the procedural requirements of § 2254. Before Federal relief can be granted, § 2254 engages comity considerations (i.e. an exhaustion of state remedies), statutory qualifications and substantive bars to overcome.

16. Before any of these § 2254 concerns are considered, there is a threshold question of law to resolve. The question is whether a remedy annexed to the Civil Rights Statute 42 U.S.C. § 1983 [hereafter § 1983 ] and a remedy annexed to the habeas corpus statute 28 U.S.C. § 2241 [hereafter §2241] can be applied to the same nucleus of facts and inside the same case.

17. Legal issues raised by Michael v. Ghee require both § 1983 and §2241 remedies. While § 1983 establishes a right to relief, it does not grant complete relief. While habeas corpus 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. Under the facts of Michael v. Ghee and this appeal, the remedy afforded by § 1983 and the remedy afforded by habeas corpus are consistent ingredients embedded in the same case or controversy for Article III purposes. The quality of being indigenous to the same case or controversy necessitates merging these two statues and their remedies to achieve relief.

18. Plaintiffs submitted authorities confirming that § 1983 and § 2241 remedies can be applied to the same nucleus of facts. The Court’s decision does not comment upon these authorities or address the question of whether or not § 1983 and § 2241 remedies can be applied to the same nucleus of facts and inside the same case.

19. Plaintiffs – Appellants are aware that a failure to raise an issue in this Certificate of Appealability is jurisdictional and acts as an irrevocable waiver, barring an appellant from addressing this issue in the appeals court. Therefore, acting out of an abundance of caution, Plaintiffs – Appellants specifically reserve and hereby appeal the issue of whether § 1983 and § 2241 remedies may be applied to the same nucleus of facts and inside the same case.

20. Comity considerations under § 2254 require a habeas corpus petitioner to exhaust all available state remedies. These Plaintiffs – Appellants are challenging Parole Board decisions, not trial court decisions. The Ohio Supreme Court has ruled that if an inmate is challenging a decision of the Parole Board, there are no remedies available. If no remedies are available, there are no remedies to exhaust. In the view of Plaintiffs – Appellants, the comity requirement imposed by § 2254 has been satisfied.

21. The Court’s decision does not comment upon whether or not the comity requirement of § 2254 has been satisfied, and whether all state remedies have been exhausted. Plaintiffs – Appellants are aware that a failure to raise an issue in this Certificate of Appealability is jurisdictional and acts as an irrevocable waiver, barring an appellant from addressing this issue in the appeals court. Therefore, acting out of an abundance of caution, Plaintiffs – Appellants specifically reserve and hereby appeal the issue of satisfying the comity requirement of § 2254 and declare that: (1) there is both an absence of judicial remedies to exhaust, and (2) the process which does exist is ineffective to protect the rights of Plaintiffs – Appellants.

22. The Antiterrorism and Effective Death Penalty Act, [28 U.S.C. §2244 (d) (1)], imposes a one year statute of limitation upon state prisoners for habeas corpus motions. There are four prongs to this statue. Only the 3rd of these four prongs applies to the facts of this case, “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.”

23. Plaintiffs – Appellants maintain that these Defendants, members of the Parole Board and administrators of Ohio prisons, do not have the authority to substitute their judgment for the judgment of a judge by indicting, prosecuting and convicting an inmate of new criminal behavior, contemplating core questions of guilt or innocence, followed by a punitive sentence. Plaintiffs – Appellants view all such acts as ultra vires, beyond their authority. Given that these acts are ultra vires, these acts are always subject to collateral review and challenge.

24. The case at bar has many similarities to Blakely and Booker. Like Booker, the offending source of law consisted of guidelines promulgated through delegated authority. Under the facts of this case, the offending source of law consisted of guidelines and policies promulgated through a delegation of authority to the Director of the Department of Rehabilitation and Correction. In contrast, Blakely involved a delegation of authority to judges. The trigger for a renewed one year limitation period on the 3rd prong began January 12, 2005, the date Booker was decided.

25. Plaintiffs filed motions in May of 2005, within one year of both decisions, Blakely and Booker. The Court’s decision does not comment upon whether the statute of limitations requirement of § 2254 has been satisfied.

26. Plaintiffs – Appellants are aware that a failure to raise an issue in this Certificate of Appealability is jurisdictional and acts as an irrevocable waiver, barring an appellant from addressing this issue in the appeals court. Therefore, acting out of an abundance of caution, Plaintiffs – Appellants specifically reserve and hereby appeal the issue of satisfying the statute of limitation requirement of § 2254. Plaintiffs – Appellants state that this issue was raised within one year and satisfies 28 U.S.C. 2244 (d)(1)(C).

27. § 2254 further requires an analysis of these Parole Board decisions – not their trial court decisions – in accordance with 28 U.S.C. § 2254(d). This statute stipulates that these Parole Board decisions must be contrary to or constitute an unreasonable application of Federal law, as determined by the U.S. Supreme Court. Plaintiffs – Appellants submit that it is unreasonable for Parole Board members to substitute their judgment for the judgment of a judge by indicting, prosecuting and convicting an inmate of new criminal behavior, contemplating core questions of guilt or innocence, followed by a punitive sentence. Plaintiffs – Appellants submit that this conduct cannot be reconciled with the New Constitutional Rationale formulated in Blakely and Booker.

28. The Court’s decision does not comment upon whether or not the unreasonable application requirement of 28 U.S.C. § 2254(d) has been satisfied. Plaintiffs – Appellants are aware that a failure to raise an issue in this Certificate of Appealability is jurisdictional and acts as an irrevocable waiver, barring an appellant from addressing this issue in the appeals court. Therefore, acting out of an abundance of caution, Plaintiffs – Appellants specifically reserve and hereby appeal the issue of satisfying unreasonable application requirement imposed by 28 U.S.C. § 2254(d).

First Substantial Constitutional Question Raised on Appeal

29. Ohio's Parole Board has a policy and a practice which allows the judgment of a parole board panel to be substituted for the decision of a judge, by indicting, prosecuting and convicting a parole candidate of uncharged, unproven and / or never admitted under oath criminal behavior, contemplating core questions of guilt or innocence, followed by a punitive sentence. Both the conviction and the sentence for uncharged, unproven and / or never admitted under oath criminal behavior are deliberated and finalized within the course of a 5 or 10 minute parole hearing, from which there is no appeal.

30. In addition to finding inmates guilty of uncharged, unproven and / or never admitted under oath criminal behavior, the Parole Board also has a practice of conducting a de novo hearing, which covers the identical matters already considered and factored into the sentence by a judge at a sentencing hearing. At this hearing, the Parole Board relies upon findings which have not been specifically referenced by the trial court, particularly aggravating factors of its own choosing and the multiple separate offense rule, to effect a departure from the guideline range matching the conviction.

31. The Parole Board has a further practice of revoking parole for a technical violation, than converting a technical violation into a serious felony conviction and forcing the technical parole violator to serve a punitive sentence, in one case as long as 15 years, for behavior which has never been reviewed by a court or a jury. The unserved remnant of a prior sentence is appropriated by the Parole Board for its own purposes, without returning to the trial court.

32. The Parole Board has a further practice of convening a parole revocation hearing for an offender serving a New Law sentence, just as they are completing the custody portion of their New Law sentence. The sentence of an Ohio trail court calls for the inmate to be released to post release control. At these parole revocation hearings, the Parole Board frustrates this order of a judge by resurrecting a prior Old Law conviction, and ordering an inmate to serve additional time on a prior conviction without any jurisdiction to do so.

33. The Parole Board has a further policy and a practice of tacking on months of time based upon disciplinary violations after an inmate has served every day of the guideline range matching their conviction. This practice has the effect of holding an inmate for a guideline range exceeding the penalty imposed by a judge.

34. The Parole Board has a further practice of violating the terms of a trial court judgment when it has issued a sentence for Life with eligibility for parole. The Parole Board has delineated guideline ranges for inmates with Life sentences that do not allow for serious release consideration after serving the time required by the statute governing the crime, as well as by the trail court judgment which invariably mirrors this statute. In some cases, Life sentences have been assigned guideline ranges, and Plaintiffs – Appellants are being required to serve time in excess of these guideline ranges. In other cases, the guideline promulgated is illegal, in that it denies serious parole consideration for a period exceeding the statute by ten years. In all cases of this kind, these Plaintiffs – Appellants have been denied serious release consideration when ordered by a trial court to do so, and seek habeas relief of this nature.

35. Both the Parole Board and the Department of Rehabilitation and Correction have a policy stating that an inmate shall be granted a projected release date at their first parole review, or a new hearing date ten years into the future. The Ohio Supreme Court relied upon this policy when it formulated its decision in Layne v. Adult Parole Authority. In its Layne decision, the Ohio Supreme Court holds that the Parole Board must assign an inmate to the guideline range matching their conviction. The combination of issuing a projected release date at the first hearing and requiring the Parole Board to place an inmate in the guideline matching their conviction, effectively circumscribes the Parole Board's discretion to placement within the matching guideline range. Hence, all of these departures from the matching guideline violate the Ohio Supreme Court's Layne decision.

36. In accordance with Layne, as well as in conformity with Blakely, an Old Law inmate's maximum sentence is defined by the guideline delineated by the Parole Board for the crime, and not by the broader statutory scheme setting forth parameters that apply to anyone committing a first, second or third degree crime. Under this criterion, a number of Plaintiffs – Appellants are being held beyond their maximum sentence.

37. In another Ohio Supreme Court decision, Hernandez v. Kelly, the Parole Board was told that it did not have the authority impose post release control if this was not done by the trial court. Similarly, the Parole Board has no authority to resurrect an Old Law offense and order incarceration after every day of a New Law sentence has been served, if this condition was not imposed by the trial court. Similarly, the Parole Board cannot impose added time for aggravating factors and for the multiple separate offense rule, if the time required extends beyond the maximum benchmark for the guideline.

38. In a third Ohio Supreme Court decision, the Parole Board was told that it cannot act as prosecutor, judge and jury and force an inmate to serve additional time beyond their maximum sentence for rule violations.

39. All of the practices and policies of the Ohio Parole Board set forth in paragraphs 29 through 34 involve violations of the Separation of Powers Doctrine. Evidence gathered in support of this claim in Michael v. Ghee is voluminous and is hereby incorporated into this filing by reference.

40. In addition to violating Ohio Supreme Court decisions, these Parole Board policies and practices violate the New Constitutional Rationale enunciated in Blakely and Booker, implicating the Constitution's 6th Amendment.

41. Plaintiffs – Appellants maintain that the Court’s decision should 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. The New Constitutional Rationale should be applied to Parole Board deliberations.

Second Substantial Constitutional Question

42. The Parole Board has a further policy and a practice of increasing the recidivism score of a guideline range by treating a D.U.I. and a juvenile offense as if it were an adult felony conviction. In addition, the Parole Board has a policy and a practice of permitting a crime victim to exercise a veto power over an inmate's parole. These policies and practices violate the Ex Post Facto Clause of the U.S. Constitution. Evidence from the ex post facto claim filed in Michael v. Ghee is hereby incorporated by reference.

43. These violations have the further effect of causing Old Law inmates to serve beyond their maximum sentence, as defined by Layne and Blakely.

44. Plaintiffs – Appellants maintain that violations of the ex post facto clause have caused some Plaintiffs – Appellants to serve time exceeding the maximum time designated for their crimes, causing these cases to offend the New Constitutional Rule and violate the 6th Amendment of the U.S. Constitution.

Order of Court

45. The Order did not address any of these items. Nevertheless, the case has been closed and, in effect, this relief has been categorically denied.

Prayer for Relief

This Court, by its Order and Final Judgment entered on February 1, 2006, denied this application for habeas corpus relief. Plaintiffs – Appellants desire to appeal from such Order to the United States Court of Appeals for the Sixth Circuit. In order to take such appeal, Plaintiffs – Appellants respectfully request that this Court issue a Certificate of Appealability (a/k/a Certificate of Probable Cause) pursuant to the provisions of 28 U.S.C. § 2253 and Rule 22(b) of the Federal Rules of Appellate Procedure.

Respectfully submitted by
/s/ Norman L. Sirak
_____________________
Norman L. Sirak #0038058
Leonard W. Yelsky # 0034277
YELSKY & LONARDO
75 Public Square – Suite 800
Cleveland, Ohio 44113
Phone (216) 781 2550
Fax (216) 781 6688
Email nsirak@parolereform.com

Draft of Due Process, Equal Protection, and Ex Post Facto below:

Due Process

Prisoners are entitled to due process if they have been deprived of liberty within the meaning of the Constitution's 14th Amendment. At the inception of a due process claim, a threshold question must be answered. What constitutes a liberty interest inside a prison? The Supreme Court has ruled that a liberty interest is limited to "freedom from restraint which … imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."

Determining an atypical and significant hardship necessarily engages fact-specific issues. The inquiry stops here if this standard is not met. If a liberty interest does exist, a due process claim proceeds through two more steps; (1) whether the liberty interest identified implicates the Due Process Clause; and (2), if answered affirmatively, whether procedures are constitutionally sufficient for depriving a person of their protectable liberty interest. If they are not, a due process claim ripens, requiring corrective action.

Plaintiffs’ First Due Process Claim

This claim is inextricably intertwined with Plaintiffs’ Separation of Powers claim. To prove the atypical and significant hardship standard, Plaintiffs point out how the Parole Board’s current guidelines render a judge's minimum sentence and the inmate’s plea bargain a vain act, and the meaningful hearing required by Ohio's Code at the first parole review an empty formality. In support, Plaintiffs offered charts summarizing experiences for 600 inmates, all of them separated from minimum sentences. Plaintiffs further offered affidavits documenting how inmates are being separated from their judgment and compelled to serve time for unproven criminal behavior. In addition to affidavits, there is a readily identifiable segment of 66 inmates in the survey of 600, receiving similar upward departures in offense behavior.

Defendants counter by arguing that inmates cannot have a liberty interest in parole procedures without possessing a liberty interest in parole itself. Defendants circumvent the plethora of evidence offered to prove the existence of an atypical and significant hardship by declaring this evidence inadmissible. Unfortunately for Defendants, this evidence was admissible.

In reply, Plaintiffs' distinguish this case from Defendants' admittedly formidable authorities by our evidence. None of these forums addressed the spectacle of a Parole Board rendering decisions functionally equivalent to judges. In our Answer to Defendants' due process claim, we stated that the atypical and significant hardship standard necessarily presents a material issue of fact defeating Defendants' Motion to Dismiss. A reasonable juror could find that an atypical and significant hardship takes place when: (1) a judge's minimum sentence and the inmate’s plea bargain gets converted into a vain act by guideline ranges; and (2) a parole candidate is indicted, prosecuted, convicted and sentenced for new criminal behavior in a parole hearing. If only one triable issue of fact is presented, Defendants' claim for dismissal must fail.

Plaintiffs’ Second Due Process Claim

Policy statements by the Department of Rehabilitation and Correction and the Parole Board contain identical language and state that an inmate shall be granted a projected release date within ten years, or be scheduled for a reconsideration hearing in ten years. The pivotal language is mandatory.

In its Layne decision, the Ohio Supreme Court paraphrased this policy and incorporated its rule into its premise. Layne's holding states, the Parole Board must assign the offense score that matches the conviction. Layne's firm order to assign an inmate to the offense category matching their conviction, coupled with the policy to grant a projected release date at the first parole review, radically circumscribes the Parole Board's exercise of discretion. Post Layne, this discretion is confined to the guideline range dictated by the trial court judgment. The Parole Board refuses to confine the exercise of its discretion to the matching guideline, and it also refuses to follow its stated policy of issuing a projected release date at the first parole review. For support, Plaintiffs submitted a survey of 111 parole decisions dated between June 1, 2005 and August 11, 2005, showing that 90% of parole candidates were not receiving projected release dates.

Defendants offered no authority and no evidence to contradict Plaintiffs' second due process claim. Only argument was offered, and the unsworn memorandum of counsel is not sufficient to create a material issue of fact.

The Court's Statement of Plaintiffs’ Claim

The Court's decision acknowledges a threshold question. Instead of using Plaintiffs’ identified liberty issue, the Court substitutes Defendants’ issue – whether the U.S. Constitution creates a liberty interest in parole. Of course, the answer is no. The Court concludes that if there is no liberty interest in parole, there can be no liberty interest in parole consideration. Upon reaching this finding, the Court considers its duty fulfilled. Plaintiffs' claims are denied.

Two material issues of fact were presented. (1) Whether being separated from a judge’s minimum sentence, which often doubles as the plea bargain, constituted an atypical and significant hardship? (2) Whether being indicted, prosecuted, convicted and then punitively sentenced for new criminal conduct in a parole hearing constituted an atypical and significant hardship? Both material issues of fact were ignored. Plaintiffs' entire second claim was ignored. Admissible evidence in support of both claims was ignored.

For a due process claim, where the threshold question requires the fact-specific exercise of deciding whether a liberty interest can be identified, the absence of this inquiry deprives any discussion which follows of its subject matter. True to this rule, the Court’s entire discussion of law is in the abstract. The Order never engages the core concerns embedded in Plaintiffs' claims.

First Basis for Reversal – 1st Claim, Failure to Follow Procedural Rules
We begin with the premise, often taken for granted but acutely germane to the facts of this case, that “…rules of procedure should promote, not defeat the ends of justice.” The Court's decision departs from procedural rules in two areas. Procedural rules governing Summary Judgment are not followed. Its due process ruling is procedurally impaired, and rests upon no foundation.

At the summary judgment stage, the Court's function is not to weigh evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Fed. R. Civ. P. 56 operates to “isolate and dispose of factually unsupported claims or defenses.” The Court's decision has skipped over its primary task of determining whether a material issue of fact has been presented, despite submission of substantial evidence by Plaintiffs. This error is highly prejudicial. The prospect of being indicted, prosecuted, convicted and then punitively sentenced by a parole panel for a new crime without counsel, without a reasoned decision and with no right to appeal this verdict to a judge, would certainly impress at least one reasonable juror as wrong. Genuine issues of fact are not even contemplated in the Order. The Court's decision begins and pursues, without any hiccups or hesitation, the task of deciding who is right and who is wrong. This approach is reversible error.

The U.S. Supreme Court has instructed courts to view evidence tendered for summary judgment "through the prism of the substantive evidentiary burden." Stated differently, the substantive law governing the claim dictates the probative value of evidence. Applied to our facts, the substantive law for a due process claim first requires a fact-specific inquiry as to whether or not a liberty interest can be identified. This is not optional. Each succeeding element to a due process cause of action rests upon its predecessor. Stated inversely, you cannot build a due process claim from the top down, or from the middle up. Each and every element, including the identification of a liberty interest, must be present. At every succeeding stage, if an element is not proven, this becomes dispositive and the due process claim must be denied.

The Court's decision does not discuss the liberty interest identified in Plaintiffs’ claim. The absence of this indispensable element is reversible error.

Second Basis for Reversal – 2nd Claim, Arbitrary Decision-Making

Arbitrary has been defined in Black's Law Dictionary to mean in an unreasonable manner, without adequate determining principle and without fair, solid and substantial cause. It has also been construed to mean not governed by fixed rules, and without consideration for facts and circumstances presented. The term capricious has been defined to mean a willful and deliberate disregard of competent testimony and relevant evidence. Both terms, arbitrary and capricious, presume behavior that is unsupported by facts.

The second due process claim relating to projected release dates is not even acknowledged. No comment of any kind certainly constitutes an absence of determining principle and conduct unsupported by facts. Arbitrary and capricious decision-making affords a basis for reversing this second claim.


Equal Protection

The elements for a claim of invidious discrimination include: (1) the creation of a formal or de facto classification scheme; (2) proof of purposeful discrimination not rationally related to a legitimate government interest; and (3) further proof that this deliberate discrimination burdens a fundamental right or denies a substantial benefit. If these elements are present, the differences must yield. This conduct violates the Constitution’s Equal Protection Clause.

Plaintiffs Three Claims

The first element, the creation of a classification scheme, was not created by Ohio’s legislature. Plaintiffs point out that you cannot challenge a non sequitur (i.e. a law never enacted). As applied to these facts, you cannot attack Ohio's Truth in Sentencing Law [hereafter the New Law] simply because it was not retroactive. This de facto classification scheme was created by a radical shift in enforcement of the Old Law sentencing statute by the Parole Board in 1995. Instead of releasing people near their minimum sentence, the Parole Board began releasing people closer to their maximum sentence. If parole policies had remained consistent with policies in force prior to 1995, a de facto classification scheme would not have evolved. This shift in policy – not the New Law – created a de facto classification scheme.

The second element requires proof of purposeful discrimination which is not rationally related to a legitimate government interest. Under Ohio’s New Law, the Parole Board was stripped of its authority to control the release date of New Law inmates. Our claim points out how Defendants added 11 new prisons from 1992 to 2000, bringing 6 new prisons into existence after 1995 when the New Law was passed. During the late 1990's, the inmate population of Ohio dropped by 9%. We further point out that if the Parole Board had not been blocking exits for conspicuously eligible Old Law parole candidates, it would have dropped a lot further. Old Law inmates were enlisted and required to serve longer prison terms as a cushion for Defendants against the vagaries of this New Law, and to be sure these new prisons could be filled when they opened. Plaintiffs further stated that holding people simply to keep prisons at full capacity did not serve a legitimate government interest.

An Equal Protection claim’s third element requires a fundamental right to be burdened or a substantial benefit to be denied. Plaintiffs' point to three substantial benefits being denied; (1) Plea bargains for Old Law inmates are never honored, while plea bargains for New Law inmates are fully respected; (2) court orders to run sentences concurrently for Old Law inmates are run consecutively, while similar orders for New Law inmates are respected; and (3) the practice of adding time for rule violations and aggravating factors after serving every day of the guideline range matching their conviction holds inmates for a crime never proven in court, thereby violating the finality of judgments principle. New Law inmates serve no such time.

To support these claims, Plaintiffs submitted a chart showing how plea bargains for 295 Old Law inmates had been violated while plea bargains for 121 New Law inmates were honored. To show how sentences are served consecutively contrary to a court order to run them concurrently, we submitted affidavits corroborated with certified trial court records from Randy Downy and Russell Dean Wilburn. To show how rule violations penetrate an elevated guideline range, we submitted the current Ohio Parole Board Decision form, where this is self evident. To show how aggravating factors are used to penetrate an elevated and inapplicable guideline, we submitted the affidavit of Booker Dickason, corroborated by certified court documents.

The Court's Statement of Plaintiffs’ Claim

The entire recitation of Plaintiffs’ three Equal Protection claims states:

“Plaintiffs argue the State violates the Equal Protection Clause because it distinguishes between old and new law inmates by, inter alia, giving new law inmates fixed sentences and old law inmates indeterminate sentences. Other alleged equal protection violations against old law inmates include: 1) promulgation of Ohio Admin. Code 5120-2-03, which requires inmates to serve consecutively any sentences imposed for crimes committed on parole; 2) adoption of the 1998 parole guidelines; and 3) consideration by parole officials of prison misconduct in setting release dates.”

The first sentence is an abstraction. It discusses the different sentences for new and old law inmates without linking its distinguishing characteristic, how one is fixed and the other is indefinite, to an equal protection claim. The second sentence contains a series of three abstractions; (1) the promulgation of Ohio Admin. Rule 5120-2-03; (2) the adoption of the 1998 parole guidelines; and (3) consideration of prison misconduct in setting release dates. None of these subjects are discussed within the context of an equal protection claim. The Court’s Order does not contain any findings of fact germane to this claim.

Administrative Rule 5120-2-03 cannot be found in Plaintiffs’ Equal Protection claim or in its brief. This administrative rule applies to crimes committed while on parole. Our evidence exposes the practice of overruling an explicit court order to run sentences concurrently by aggregating sentences in prison record offices. This administrative rule is inapposite.

Adoption of the parole guidelines is equally irrelevant. The practice of issuing substantially longer prison sentences began in 1995, three years before these parole guidelines were adopted. The chart supporting Plaintiffs’ first claim, that plea agreements are not treated equally, deliberately includes a large number of inmates that were not reviewed under the current guidelines.

Considering prison misconduct in setting release dates is an oxymoron. This self evident truth is simultaneously smart and dull, and also unassailable.

If these are not Plaintiffs’ claims, how did they get into this decision?

The Court’s abstract recitation of facts paraphrases the first paragraph on Equal Protection in the State’s 3rd Consolidated Memorandum Concerning Dismissal and Summary Judgment. These are bogus Equal Protection claims. The State created them. We are at a loss to explain how the Court was duped into believing these bogus claims belonged to Plaintiffs. Naturally, the claims substituted by the State contain a poison pill – the implication of fundamental rights. Burdened with this loadstone, these claims are easy to dismiss. The Court’s Order virtually parrots the State’s arguments.

Fed. R. Civ. P. 56 governs consideration of the State’s motion for summary judgment on Equal Protection as well as Plaintiffs’ cross motion. Materials outside the pleadings and supporting evidence must be considered.

First Basis for Reversal – Manifest Error in Fact

Generally, the findings of a District Court are presumptively correct. However, if the District Court made no specific findings of fact in reference to issues offered by the appellant, a reviewing court is not bound by rationales accompanying the facts which are referenced. Similarly, if the District Court misapprehended evidence, the weight given this evidence can be disregarded.

“Manifest errors are errors so obvious that no additional explanation is needed or possible. For example, if a court on summary judgment refused to draw a reasonable inference in favor of a nonmoving party, the court's error would be manifest; no explanation of the error would be necessary or possible (besides stating that the court violated the rules of summary judgment).”

This Court’s error is manifest. Inexplicably, bogus claims created by the State have been substituted for Plaintiffs' claims, and the Court has dealt with these counterfeit claims exclusively. No additional explanation is needed. This is a manifest error in fact, justifying reversal for all three claims.

Second Basis for Reversal – Arbitrary & Capricious Decision-Making

The Court's decision as given ignores the true constitutional issues raised by Plaintiffs. No relevant comment of any kind constitutes an absence of determining principle and conduct unsupported by facts. Arbitrary and capricious decision-making also affords a basis for reversing these claims.


Fifth Cause of Action – Ex Post Facto Clause

The ex post facto clause announces a constitutional absolute. Laws must not punish retroactively. The elements of an ex post facto claim consist of: (1) state action resembling the force of law; (2) applied retroactively; and (3) inflicting a greater punishment than required by the law annexed to the crime when it was committed. Three ex post facto violations were submitted.

Plaintiffs First Claim

Abusive Rule Making discusses rules embedded in the formulation of an offensive score and a criminal history risk score. No discretion is exercised in applying these rules. If engaged by an inmate’s conviction or past history, they are perfunctorily applied just as addition is used to total a score.

The multiple separate offense rule applies to the offense score, permitting a one range upward departure for multiple crimes. Typically, multiple crimes are lesser included offenses drawing a definite sentence. This rule is applied at an inmate’s first parole hearing, years after the trial court’s sentence is imposed. Under the Old Law, definite sentences had to be served ahead of indefinite sentences. The upward departure for the multiple separate offense rule is applied after the inmate serves every day of the definite sentence imposed by their judge for this same behavior. In this manner, an added and highly punitive consequence is imposed for a past act, engaging the ex post facto prohibition. In the case of Don Miller outlined in our claim, the multiple separate offense rule added an indefinite 1 to 5 year sentence for nine sexual battery crimes after a two year definite sentence had been fully served.

Two other abusive rules influence the criminal history risk score. Every D.U.I. ticket and every juvenile conviction is counted as equivalent to a prior adult felony. Prior adult felonies move an inmate horizontally along the recidivism axis. In cases cited in our evidence, 2 ½ years were added to the guideline range due to D.U.I. tickets and juvenile crimes. This punishment is imposed at the first parole review under the current guidelines, after the inmate has been punished by their municipal court for the D.U.I. or by the Juvenile Court for a juvenile crime. In this manner, an added and highly punitive consequence is inflicted for a past act, engaging the ex post facto prohibition.

Justice Chase summarized his understanding of the ex post facto clause in 1798 and stated, in pertinent part:

"2d Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed."

Plaintiffs submit that these abusive rules engage both prongs.

Plaintiffs Second Claim

The second ex post facto claim states that the Parole Board’s guideline ranges are out of sync with decisions issued by judges. To illustrate how far out of sync, a survey was taken of 600 class members. The Court’s Order refers to this survey as “plaintiffs’ statistical evidence.” Parole Board decisions for all 600 inmates were filed with the Court. Defendants tried mightily to prove these decisions were untrustworthy, and failed. All of this evidence was admitted into the record. An expert witness, Dr. Martin Schwartz, was retained to conduct an audit of our survey techniques and to apply the tools of a statistician to our results, preparatory to rendering an opinion as to whether these 600 inmates were representative of the larger class. Dr. Schwartz authored that affidavit and found these 600 inmates to be representative of the larger class. The affidavit of Dr. Schwartz was never challenged. Utilizing Microsoft's excel and access software, a picture was generated of Parole Board decision-making. Data entry and source documents were filed with the Court. Parole decisions were transmitted informally to the Ohio Attorney General's Office in advance. This was evidence – not statistics.

This survey first noted the average time required by the court's minimum sentence. Next, this trial court sentence was compared to three benchmarks: (1) the average time required for entering the guideline matching the court conviction; (2) the average time required for entering an inmate's assigned guideline; and (3) the average time required for receiving a meaningful hearing. This graduated scale was designed to point out how the Parole Board exercises its discretion to do upward departures, causing Old Law inmates to serve time in a guideline range never sanctioned by their court.

* In 534 out of 600 cases [89%], the minimum court sentence averaged 6.4 years. Entry into the matching guideline was 11.7 years. After serving 6.4 years for a judge, inmates had to serve another 5.3 years for the Parole Board before they entered the guideline matching their offense of conviction.

* For the remaining 66 [out of 600] cases where sentences penetrated or equaled the matching guideline, upward departures occurred in all cases.

* In 600 cases, the minimum sentence averaged 6.3 years. The average time required for entering the Assigned Guideline, a term reflecting both upward departures and matching guidelines, was 15.2 years – an added 8.9 years to the minimum sentence.

* In 526 out of 600 cases – 74 panels provided no answer, only “to be determined” – the minimum sentence averaged 6.1 years. The average time required for receiving a meaningful hearing was 18.5 years – an added 12.4 years – twice the minimum sentence.

Two ex post facto consequences can be deduced from this evidence.

(1) The guideline ranges are pitched high, contemplating only the most hardened, predatory and incorrigible of inmates, delaying the exercise of discretion by years; and

(2) Despite the high pitch of these guideline ranges, the Parole Board has a widespread practice of issuing upward departures, forcing these inmates to serve time in a guideline range for behavior never sanctioned by their trial court.

Prior to assembling this evidence, Ohio's Supreme Court issued its own absolute maxim to the Parole Board, declaring that "in any parole determination … the APA must assign an inmate to the offense category score that corresponds to the offense or offenses of conviction." Under Ohio law, every upward departure portrayed in these graphs constitutes an unlawful act.

The Supreme Court decision U.S. v. Miller stands for the proposition that a high hurdle is created whenever there is a change in law and, as a result, the exercise of discretion is significantly postponed. When a high hurdle is erected to the exercise of discretion, inmates are exposed to a substantial risk of serving an extended prison term. This survey backed up our claim that, without good cause or any cause at all, parole guidelines structurally locked in vast amounts of time never previously required under prior parole regimes. This evidence also shows how Plaintiffs are being required to serve time in guideline ranges appropriate for crimes never sanctioned by their trial court.

Plaintiffs’ Third Ex Post Facto Claim

In 1994, an amendment to the Ohio Constitution was passed for crime victims. Implementing legislation followed in 1995. Under this legislation, crime victims could challenge an inmate’s parole by requesting an open hearing, where the crime victim could personally attend and present evidence against a parole. Under Defendant Margarette Ghee’s regime, open hearings invariably ended badly for the offender. Often, parole candidates were ordered to serve every remaining day of their sentence. Victims virtually exercised a veto power over an inmate’s release. Crime victims possessed no such authority when class members were convicted. In this manner, an added and highly punitive consequence had been imposed for a past act, engaging the ex post facto prohibition. For support, Stephen Cohen’s affidavit was submitted.

The Court's Statement of Plaintiffs’ Claim

The entire recitation of Plaintiffs’ three claims takes two sentences.

“In their fifth cause of action, plaintiffs allege that retroactive application of the 1998 new guidelines violates the Ex Post Facto Clause of the U.S. Constitution. [U.S. art. I, § 10, cl. 1] Specifically, plaintiffs argue the APA violates the Clause because it applies rules and guideline ranges from the 1998 guidelines to inmates that were convicted before the 1998 guidelines enactment.” See Doc. 140 at 102 – 105.”

These are conclusory statements. They do not accurately paraphrase our claims, nor do they provide findings of fact and conclusions of law preparatory for a summary judgment. Like all conclusory statements, they lack a factual basis and a reasoned argument. Like any other conclusory statement, they lack probative value and they do not summon credibility or competency.

Applicable Law

The Court found the State's legal arguments so persuasive, Plaintiffs' evidence could not make a difference. These legal arguments are divided into two parts, designated (a) and (b). We begin with the authorities in the Order.

Part (a) states that internal parole guidelines are not “laws” for ex post facto purposes. For support, the decision quotes two 6th Circuit decisions, Ruip v. U.S., and Shabazz v. Gabry. Both decisions are irrelevant. Ruip is concerned with the Federal parole guidelines. Shabazz discusses the Michigan parole statute. Neither decision addresses the ex post facto consequences of the current Ohio parole guidelines. Hattie v. Goldhart, an Ohio Supreme Court decision, is cited. Hattie was decided four years before these parole guidelines were imposed. Not one of these decisions considers and discusses the Ohio parole guidelines, which are the subject matter for two of these claims.

The only case engaging these guidelines is Conley v. Ghee. Conley carries no precedential value because it is an unreported decision. It is also not a reasoned decision. Three arguments, denial of due process, equal protection and the ex post facto clause, are discussed and decided in one page.

Berry v. Traughber is quoted with approval. Russell Berry is a Tennessee inmate, subject to the Board of Pardons and Paroles in Tennessee. Traughber suffers all of the infirmities of Ruip, Hatttie, Shabazz and Conley; it is irrelevant. None of these courts reviewed Ohio's parole guidelines. Like Conley, Traughber is an unreported decision possessing no precedential value.

Part (b) of the Court's legal argument begins with a concession. The first issue – whether guidelines constitute laws – is not dispositive. The Court's second argument maintains that the "Constitution does not impose a per se ban on laws that retroactively apply changes to parole procedures." For support, the Court’s Order begins with Garner v. Jones, a Supreme Court decision discussing a parole procedure that retroactively reduces the frequency of parole consideration. Garner is inapposite. Ohio’s guidelines create a new substantive formula for parole eligibility which delays the exercise of discretion. The on point Supreme Court decision is Miller v. Florida, discussing the erection of a high hurdle before discretion can be exercised.

Two unpublished federal cases and three state cases follow Garner. Kilbane v. Kinkela is an unpublished Federal decision with no precedential value. Its text runs two pages. Akbar-El v. Wilkinson is another unpublished Federal decision possessing no precedential value, as well as being inapposite. Akbar-El concerned credits for good time. Ohio’s current parole guidelines are never mentioned. In addition, this decision is one page in length.

Thompson v. Ghee, an Ohio decision, is also inapposite. A close reading of Thompson reveals that the opinion merely parrots Akbar-El. But as we pointed out, Akbar-El addressed the application of good time credits. As a result, Thompson stands on the same footing as Akbar-El – its reasoning is irrelevant to the facts before us now. The next authorities, State v. Wright and State v. Masten, are state decisions. Wright and Masten cannot serve as precedential authority for this Federal Court. It is the exclusive province of the Federal judiciary, not the State’s Judiciary, to determine whether the U.S. Constitution’s ex post facto clause has been violated.

The legal argument deemed so persuasive by the Court, that evidence could be disregarded, does not contain one on point, reasoned Federal decision possessing precedential value analyzing these parole guidelines under the ex post facto clause.

First Basis for Reversible Error – Plain Error

To show Plain Error, sixth circuit jurisprudence requires a party to satisfy four criteria: (1) an error occurred in the district court; (2) the error was plain, that is obvious and clear; (3) the error affected a party’s substantial rights; and (4) the error has an adverse impact seriously affecting the fairness, integrity or public reputation of the judicial proceedings.

Voluminous evidence entered the record documenting how the Ohio Supreme Court’s Layne decision was being violated. Plaintiffs presented a chart reflecting 21 Plaintiffs convicted of assault. Every Plaintiff received an upward departure. Placement in this elevated guideline compelled Plaintiffs to; (1) serve the guideline range matching their conviction without receiving parole consideration; and (2) serve time in a guideline appropriate for a crime never sanctioned by their trial court. Pursuant to Wilkinson v. Dotson, parole procedures are subject to the scrutiny of a Federal court and must conform to the U.S. Constitution. More importantly, errors in the application of sentencing guidelines constitute a problem well known and documented in Federal courts.

At the sentencing hearing of William Davis, the 2002 version of the United States Sentencing Guidelines was applied, instead of the 1991 or 1992 version in force when his crime was committed. Use of the 2002 Guidelines caused Davis to be sentenced to three to nine months more than he would have received under the 1991 Guidelines. In U.S. v. Davis, the Court considered whether these facts constituted a violation of the ex post facto prohibition and also satisfied the four elements required to prove Plain Error.

The United States Sentencing Guidelines employ a mandatory provision analogous to Layne. The general rule is to apply the Guidelines in force at the time of sentencing. However, if the current guidelines would present an ex post facto clause violation, "the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.

Sections applicable to Davis in the 2002 and 1991 Federal Sentencing Guidelines revealed that the 2002 guidelines imposed a sentence at least three months longer than the 1991 guidelines. "When the guidelines in effect at the time of sentencing provide for a higher range than those in effect at the time the crime was committed …an ex post facto problem exists and the court must not impose a sentence in excess of that allowed by the older guidelines."

Having identified an ex post facto problem, the Davis court went on to the second element, whether or not this error was plain or obvious. The Davis Court readily concluded that this was an obvious error.

The Davis court then moved to the third element, whether the error affected a party's substantial rights. The Supreme Court has ruled that "in most cases [affects substantial rights] means that the error must have been prejudicial." The Davis court concluded that "the record permits the inference that a defendant would have received a different, shorter sentence … the defendant's substantial rights have been affected …"

The final inquiry is whether the error seriously affects the fairness, integrity or public reputation of the judicial proceedings. Davis states:

"Two factors counsel in favor of exercising our discretion to remand in this case. First, we again emphasize that the ex post facto clause is a constitutional mandate that laws must not punish retroactively. Where that mandate is violated, we think that it seriously affects the fairness and integrity of the judicial proceeding.

Second, we note that a number of other circuits have found plain error in the application of the incorrect version of the Guidelines."

The Davis court cites decisions from the 9th Circuit, the 8th Circuit, the 10th Circuit, the 7th Circuit, and the 2nd Circuit holding that plain error applies when sentencing Guidelines are applied in a manner which violates the ex post facto clause prohibition.

In this case, Plaintiffs are challenging Parole Board decisions, not trial court sentences. There is an abundance of evidence demonstrating that these Plaintiffs are serving time in guideline ranges that do not match their convictions. This violates a firm mandate from the Ohio Supreme Court issued in 2002. Wilkinson v. Dotson stipulates that when an inmate enters a parole hearing, the U.S. Constitution enters the room with them. If their treatment does not comport with the U.S. Constitution, they may challenge this procedure in a Federal Court. Plaintiffs have done this.

Parole Board policies and practices require class members to serve an additional 12.4 years on average, instead of the 6.1 years ordered by a court, before receiving meaningful parole consideration. This evidence, in concert with Davis and the authorities cited therein, justifies reversal as Plain Error.

Second Basis for Reversal – Arbitrary and Capricious Decision-Making

The first and third ex post facto claims for abusive rule making and crime victim rights have been denied without any explanation. The third claim for crime victim rights is not even acknowledged. Silence certainly constitutes an absence of determining principle and conduct unsupported by facts. Arbitrary and capricious decision-making affords a basis for reversing Plaintiffs’ first and third ex post facto claims.


Rule 12(b)(6) Ruling

The Court's Order dismisses claims for Abuse of Discretion, Arbitrary and Capricious Decision-Making, Separation of Powers, Bad Faith and a supplemental complaint for monetary damages pursuant to Rule 12(b)(6), finding these claims are not cognizable under 42 U.S.C. § 1983.

Abuse of Discretion and Arbitrary and Capricious Decision-Making were primary causes of action in 2001 and 2002. As this case evolved, our true causes of action came into focus. Among them, one giant issue emerged – a Separation of Powers claim. By 2003, Plaintiffs abandoned their Abuse of Discretion and Arbitrary and Capricious Decision-Making claims. Ironically, the Court's decision devotes 2 ½ of its 15 pages to these abandoned claims. Separation of Powers is given a half page. Plaintiffs' claims for Bad Faith and Monetary Damages, both of which are inextricably intertwined with the Separation of Powers claim, receive 66 and 48 words respectively. To support its dismissal, the Court cites one authority, Huron Valley Hospital Inc. v. City of Pontiac. We begin with this authority.

Discussion of Huron

Huron Valley Hospital [hereafter Huron Valley] filed an application for a state certificate to build a new hospital. This application was denied. Pontiac General Hospital filed a certificate to add an addition at about the same time. This application was approved. Huron Valley sought injunctive relief in state courts and prevailed. In the decision cited by the Court, Huron Valley sought damages for the delay caused by the wrongful denial. In prior litigation between these parties, these wrongs were conclusively found to be the result of an isolated act committed by an individual. In Huron, this finding of an isolated, negligent act by an individual was pivotal.

"If the wrongs were attributable to 'established state procedure', then he concluded that Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) would apply. Logan held that a challenge based upon violation of an established state procedure, rather than a mere random negligent act by a state official, …is entitled to due process protection, but the action must be the action of 'the state system itself … whether taken through negligence, maliciousness, or otherwise.'"

Based upon Huron, all of our dismissed claims have been viewed by the Court as an isolated and negligent act of an individual.

Established State Procedure in Plaintiffs’ Separation of Powers Claim

Once again, the Court has misstated and mischaracterized our claims. In our Separation of Powers claim, we plead the following:

(1) A new sentencing structure is established through guideline ranges creating a new substantive formula for parole eligibility, overruling the trial court's minimum sentence, and treating every maximum sentence as it were the only sentence.

(2) These new guidelines sidestep and avoid Administrative Rule 5120:1-1-07, which previously served as the vehicle for granting parole under prior parole regimes. Under the new guidelines, this criteria has been rendered obsolete and replaced by fixed ranges on a parole board chart.

(3) Adding time at every initial parole review, without being required to show good cause or any cause at all, places the Parole Board squarely in the sentencing business.

(4) Defendants' parole guidelines usurp the authority of judges, violating the Separation of Powers Doctrine.

Plaintiffs’ Separation of Powers claim sets out facts applicable to every Old Law parol
__________________
"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 02-25-2006, 05:40 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

(((Bebopp))) thank you Sabrena
__________________
~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


All times are GMT -6. The time now is 11:41 PM.
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