Wagner v. Gilligan, 77-3372

Citation609 F.2d 866
Decision Date19 November 1979
Docket NumberNo. 77-3372,77-3372
PartiesLawrence WAGNER et al., Plaintiffs-Appellees, v. John J. GILLIGAN, Governor, et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

William J. Brown, Atty. Gen. of Ohio, John C. Stamatakos, Asst. Atty. Gen., Columbus, Ohio, for defendants-appellants.

Frank S. Merritt, Norman Zemmelman, Toledo, Ohio, Stanley A. Bass, New York City, Oliver Nickerson, Chillicothe Correction Inst., Chillicothe, Ohio, for plaintiffs-appellees.

Before CELEBREZZE and ENGEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PER CURIAM.

The issue on this appeal is whether a prisoner in an Ohio penal institution who becomes a candidate for parole possesses a liberty or property interest sufficient to evoke a right to procedural due process. The district court answered this question in the affirmative in Wagner v. Gilligan, 425 F.Supp. 1320 (N.D.Ohio 1977). Reference is made to the published opinion of the district court for a recitation of pertinent facts.

The district court granted an injunction directing the Ohio Adult Parole Authority to:

(a) Inform each inmate candidate for parole well in advance of his parole hearing of the bases upon which the Ohio Adult Parole Authority may deny parole;

(b) Permit each inmate candidate for parole to submit to the Parole Authority, prior to or during his hearing, documentary evidence within the inmate's control; and

(c) Provide each inmate hereafter denied parole with a statement of the grounds for denial of his parole and the essential facts from which the Parole Authority drew the inferences that led to its decision;

The suit was sustained as a class action, certified to include all present and future inmates of Ohio penal institutions who are or may become eligible for parole. The injunction was stayed by this court pending appeal.

Thereafter, the Supreme Court released its opinion in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, et al., --- U.S. ----, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), holding that "(t)here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Id., 99 S.Ct. at 2104. Accord, Bell v. Kentucky Parole Board, 556 F.2d 805, 808 (6th Cir.), Cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977).

Counsel for appellees conceded, both in open court and by a written confession of error, that the decision of the Supreme Court in Greenholtz requires reversal of the district court in the present case. We commend counsel for this action, which is in accordance with his ethical responsibilities as a member of the bar and an officer of the court.

...

To continue reading

Request your trial
44 cases
  • Board of Pardons v. Allen
    • United States
    • U.S. Supreme Court
    • June 9, 1987
    ...F.2d 172, 174 (CA10 1980) (Colorado statute); Shirley v. Chestnut, 603 F.2d 805, 806-807 (CA10 1979) (Oklahoma statute); Wagner v. Gilligan, 609 F.2d 866, 867 (CA6 1979) (Ohio statute). A third type of statute provides that an individual shall not be released unless or shall be released onl......
  • Vincenzo v. Warden
    • United States
    • Connecticut Court of Appeals
    • November 12, 1991
    ...( [10th Cir.] 1980) (Colorado statute); Shirley v. Chestnut, 603 F.2d 805, 806-807 ( [10th Cir.] 1979) (Oklahoma statute); Wagner v. Gilligan, 609 F.2d 866, 867 ( [6th Cir.] 1979) (Ohio statute)." Board of Pardons v. Allen, 482 U.S. 369, 379 n. 10, 107 S.Ct. 2415 n. 10, 96 L.Ed.2d 303 (1987......
  • Carver v. Lehman
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 22, 2008
    ...(New York parole statute); Shirley v. Chestnut, 603 F.2d 805, 806-07 (10th Cir. 1979) (Oklahoma parole statute); Wagner v. Gilligan, 609 F.2d 866, 867 (6th Cir. 1979) (Ohio parole 5 The Liptrap court specifically noted section 72.09.340's provision for denial of a release plan because the p......
  • Baker v. Commissioner of Correction
    • United States
    • Connecticut Supreme Court
    • February 13, 2007
    ...174 ([10th Cir.] 1980) (Colorado statute); Shirley v. Chestnut, 603 F.2d 805, 806-807 ([10th Cir.] 1979) (Oklahoma statute); Wagner v. Gilligan, 609 F.2d 866, 867 ([6th Cir.] 1979) (Ohio 14. See generally Regs., Conn. State Agencies §§ 54-125a-1 through 54-125a6, effective May 2, 1997, enac......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT