NORMAN L. SIRAK
ATTORNEY AT LAW
Case # 3:01CV7436
February 18, 2006
A P P E A L   D R A F T
THIS BRIEF IS IN PROGRESS - NOT THE FINAL VERSION
Mr. Sirak will be sending this out next week to all of his clients, and it will be a little further along.

Introduction

These Defendants have always exercised unfettered discretion when it comes to the fates of inmates. These Defendants have also been answerable only to a state court, not to Federal Courts. Recent U.S. Supreme Court decisions and Ohio Supreme Court decisions and their accompanying rationales have sharply circumscribed this discretion. This crux and thrust of this case is about complying with these recent U.S. Supreme Court and Ohio Supreme Court decisions, and compelling these Defendants to conform to the law. These recent U.S. Supreme Court and Ohio Supeme Court decisions, and their accompanying rationales, have been totally ignored in this Court’s Order. 
 

Scope of Review

Since this appeal is taken from a final order granting summary judgment, this Court’s scope of review over legal conclusions is plenary.   Factual findings may only be set aside upon a showing that they are not supported by substantial evidence. 

This District Court has rendered decisions just as the Parole Board renders decisions. However, the U.S. District Court for the Northern District of Ohio is not a parole panel. 

Additional Basis for Reversal  - Plaintiffs have been deprived of an impartial review.   It is customary to make findings of facts based on a preponderance of the evidence contained in the complete record. Some deference must be due to findings of an administrative agency unless, as happens to be the case here, the administrative agency has taken it upon itself to overrule trial courts. Under these facts, findings of an administrative agency are entitled to no deference. From Kings Local School v. Zelazny, 325 F. 3d 724, 728 (6th Cir. 2003) discussing Individuals with Disabilities Education Act

Misstated and mischaracterized the facts 

DUE PROCESS

 Prisoners are entitled to due process if they have been deprived of liberty within the meaning of the Constitution's 14th Amendment. A threshold question must be answered at the inception of a due process claim. What constitutes a liberty interest within a prison environment? The Supreme Court has ruled that a liberty interest will be 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. If the application of this standard finds no liberty interest, the inquiry stops here. If a liberty interest does exist, a due process claim proceeds through two 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 procedures are deficient, a due process claim ripens, necessitating 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 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 the experiences of 600 inmates, all of them separated from their minimum sentences.  Plaintiffs further offered affidavits attesting to the fact that inmates are being separated from their judgment and being compelled to serve time for unproven criminal behavior.   In addition to these 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 in Plaintiffs' favor that an atypical and significant hardship ocurrs when:: (1) a judge's minimum sentence gets converted into a vain act by guideline ranges; and (2) a parole candidate is indicted, prosecuted, convicted and than sentenced for new criminal behavior in a 5 or 10 minute 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 their 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 equivalent to evidence. 

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.

Plaintiffs submitted two material issues of fact bearing upon whether a liberty interest could be identified. (1) Whether being separated from the minimum sentence rendered by a judge constituted an atypical and significant hardship? (2) Whether being indicted, prosecuted, convicted and then punitively sentenced for new criminal conduct in the course of a 5 or 10 minute parole hearing constituted an atypical and significant hardship? Both material issues of fact were ignored. Plaintiffs' entire second claim was ignored. Evidence in support of both claims was ignored, even though this evidence was admissible. Plaintiffs' true claims are nowhere to be found. 

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, and findings for its due process ruling rest upon a nonexistent foundation. 

 At 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 the task of determining whether or not 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 never even contemplated. The Court's decision begins and pursues, without any hiccups or hesitation, the goal 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 address the first indispensable element, identification of a liberty interest predicated upon Plaintiffs’ claim. Accordingly, the structure which follows has no support, and crumbles. 

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 has been denied without any explanation. Indeed, it is not even acknowledged. Where there are no findings of fact, no recognition of a claim's supporting evidence and a total disregard of a claim’s existence, arbitrary and capricious decision-making affords a basis for reversing this second due process 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 of the State's 3rd Consolidated Memorandum Concerning Dismissal and Summary Judgment.   The State formulated its own equal protection claims, and these claims have been represented to the Court as Plaintiffs’ Equal Protection claims.  Not surprisingly, the equal protection claims substituted by the State contain two poison pills; (1) the implication of fundamental rights, and (2) labeling inmates a suspect class. Cradled in this hopeless posture, these claims are readily trounced. The Court’s Order virtually parrots the State’s arguments.  We are at a loss to explain how the Court was duped into believing these bogus claims belonged to Plaintiffs. 

The Court’s Order states that the Equal Protection claim is cognizable under § 1983.  Fed. R. Civ. P. 56 governs consideration of the State’s motion for summary judgment as well as Plaintiffs’ cross motion. Materials outside of the pleadings, including Plaintiffs’ Equal Protection brief and its supporting evidence, must all be considered under rules governing Fed. R. Civ. P. 56. 

First Basis for Reversal – Manifest Error in Fact

The general rule is that findings of a District Court are presumptively correct. However, if an examination of the record indicates that the District Court made no specific findings of fact in reference to precise issues offered by the appellant, a reviewing court is not bound by rationales accompanying the facts which are referenced.   Similarly, if it is obvious from the record that the District Court misapprehended the evidence, the weight conferred upon 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 formulated 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 constitutional issues raised by Plaintiffs.  Plaintiffs’ claims are nowhere to be found in this Order. Denying these claims without giving any reason for doing so constitutes arbitrary and capricious decision-making, and affords Plaintiffs a second basis for seeking reversal of its Equal Protection 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 behavior score, permitting a one range upward departure because of multiple crimes. Typically, multiple crimes are lesser included offenses drawing a definite sentence. This rule is applied at an inmate’s first parole hearing. The upward departure for the multiple separate offense rule occurs 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 after the inmate has been punished by their municipal court for the D.U.I. or the Juvenile Court for a juvenile crime. Like the multiple separate offense rule, these inmates endured the penalties required by their respective courts before this penalty was imposed. This 2 ½ year sentence springs from the Parole Board and begins at their first parole review under the current guidelines. In this manner, these rules impose an added and highly punitive consequence 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 an administrator 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 unlawful guideline ranges. 

Plaintiffs’ Third Ex Post Facto Claim

 In 1994, Ohio passed a Constitutional Amendment called the Crime Victims Amendment.  Implementing legislation was passed in 1995.   Under this legislation, crime victims acquired the right to challenge an inmate’s parole by requesting an open hearing before the Parole Board, where the crime victim could personally attend and present evidence against a parole.  Under the regime of Defendant Margarette Ghee, open hearings invariably ended badly for the offender. Frequently, 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 these class members were convicted. In this manner, an added and highly punitive consequence is 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). 

  Part (a) states that internal parole guidelines are not “laws” for ex post facto purposes. For support, the decision quotes Ruip,   a 6th Circuit decision discussing the Federal parole guidelines, not Ohio's parole guidelines. The Court’s Order cites another 6th Circuit decision, Shabazz v. Gabry [hereafter Shabazz]. Shabazz is irrelevant because this decision discusses the Michigan parole statute.  An Ohio Supreme Court decision, Hattie v. Goldhart [hereafter Hattie], 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 is the subject matter for two of these claims. 

The only case cited by the Court engaging these parole guidelines is Conley v. Ghee,  [hereafter Conley]. Conley is an unreported federal decision. As such, it carries no precedential value.   Secondly, Conley is not a reasoned decision. The three legal arguments of Buddy Conley, denial of due process and equal protection and the application of the ex post facto clause, were all discussed and decided within one page. 

Finally, Berry v. Traughber, [hereafter Traughber]   is cited and its holding 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. Like Ruip, Hattie, Shabazz and Conley, this case is irrelevant. None of these courts were reviewing Ohio's parole guidelines. Like Conley, Traughber is another unreported federal decision possessing no precedential value. 

Part (b) of the Court's legal argument begins with an admission, namely that the question of whether or not these guidelines constitute laws is not dispositive. The Court's second argument assumes these are laws, but goes on to state that the "Constitution does not impose a per se ban on laws that retroactively apply changes to parole procedures." 

 This argument begins with Garner v. Jones,   [hereafter Garner], a Supreme Court decision which discusses a parole procedure that retroactively reduces the frequency of parole consideration. Under the facts posed by Plaintiffs' ex post facto claims, this 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 this Supreme Court decision. 

 Kilbane v. Kinkela   [hereafter Kilbane], is an unpublished Federal decision with no precedential value. Its text runs two pages. Akbar-El v. Wilkinson,   [hereafter Akbar-El] is another unpublished Federal decision possessing no precedential value, as well as being inapposite. The crux of this lawsuit concerned the application of good time credits. These current guidelines are never mentioned, let alone challenged or analyzed under the ex post facto clause . In addition, this decision is one page in length. 

Thompson v. Ghee,   [hereafter Thompson] is an Ohio reported decision, but it is also inapposite. A close reading of Thompson reveals that the opinion merely parrots Akbar-El. But as we pointed out, Akbar-El did not address these current parole guidelines. Instead, this decision 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 two authorities, State v. Wright   [hereafter Wright] and  State v. Masten,  [hereafter Masten] are state decisions. Neither Wright nor Masten can constitute precedential authority for this Federal Court. It is the province of the Federal judiciary, not the state judiciary, to determine whether or not the ex post facto clause of the U.S. Constitution has been violated. 

 The Court has not cited one reported and reasoned Federal decision which analyzes the current 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 and it was not waived; (2) the error was plain, that is obvious and clear; (3) the error affected a party’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings. 

 This Court was presented with a plethora of evidence attesting to the fact that the Parole Board was violating the Ohio Supreme Court’s Layne decision and, not inconsequentially, also violating an affidavit to the Court filed by its Chief of Quality Assurance that such practices would stop.  Plaintiffs presented a chart reflecting 21 Named Plaintiffs convicted of assault.  Every one of these Plaintiffs received an upward departure. Placement in this elevated guideline compelled these Named Plaintiffs to; (1) serve the entire 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 now subject to the scrutiny of a Federal court and must conform to the U.S. Constitution. Furthermore, errors in the application of sentencing guidelines constitute a problem Federal courts have experienced.

 At the sentencing hearing of William Davis, the 2002 version of the United States Sentencing Guidelines was applied to his crime, instead of the 1991 or 1992 version, which was in force when his crime was committed. Use of the 2002 Guidelines caused Davis to be sentenced anywhere from three to nine more months than he would have received under the 1991 Guidelines. In U.S. v. Davis,   [hereafter 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 have a provision analogous to the Ohio Supreme Court’s Layne decision. The general rule is to apply the version of the Guidelines in force at the time of sentencing.  However, if applying 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.  [Emphasis added.] As in Layne, the language in the Federal Guidelines is mandatory. 

 A review of the sections applicable to Davis in the 2002 Federal Sentencing Guidelines and the 1991 version of the same sentencing guidelines revealed that the 2002 guidelines imposed a sentence at least three months longer than what he could have possibly received under 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 the case before this Court, Plaintiffs are challenging Parole Board decisions, not trial court sentences. There is an abundance of evidence in the record 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. The recent Supreme Court decision, Wilkinson v. Dotson,  stipulates that when an inmate enters a parole hearing, the U.S. Constitution enters the room with them; and if their treatment at this hearing does not comport with the U.S. Constitution, they may challenge this procedure in a Federal Court. Plaintiffs have done this. 

 The record further reflects the fact that these Plaintiffs are being substantially prejudiced by this practice. Because of Parole Board practices, Plaintiffs are serving on average an additional 12.4 years before receiving meaningful parole consideration, instead of the 6.1 years ordered by a court. 

 Plaintiffs submit that the evidence in the record, coupled with the Davis decision and other authorities cited therein, warrants 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. Where there are no findings of fact, no acknowledgment of a claim's supporting evidence and the total disregard of a claim’s existence, arbitrary and capricious decision-making affords a basis for reversing these ex post facto claims. 
 
 

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