641 F.2d 411 (6th Cir. 1981), 80-3351, Van Curen v. Jago

Docket Nº:80-3351.
Citation:641 F.2d 411
Party Name:George D. VAN CUREN, Petitioner-Appellant, v. A. R. JAGO and William J. Brown, Respondents-Appellees.
Case Date:February 10, 1981
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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641 F.2d 411 (6th Cir. 1981)

George D. VAN CUREN, Petitioner-Appellant,


A. R. JAGO and William J. Brown, Respondents-Appellees.

No. 80-3351.

United States Court of Appeals, Sixth Circuit

February 10, 1981

Argued Dec. 16, 1980.

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[Copyrighted Material Omitted]

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Louis A. Jacobs, Ohio State University, Columbus, Ohio, for petitioner-appellant.

Dennis L. Sipe, Asst. Atty. Gen. of Ohio, Columbus, Ohio, for respondents-appellees.

Before LIVELY and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

LIVELY, Circuit Judge.

In deciding this appeal we determine what due process requirements must be met before a state parole authority may rescind its action granting parole to an inmate effective at a future date. The district court held that the petitioner, an inmate of an Ohio correctional facility, "had no constitutionally protectable expectation in early release, even under the unusual circumstances presented by this case." We reverse for the reasons hereafter set forth.

The facts are not in dispute. Van Curen was sentenced to not less than six nor more than 100 years incarceration on a guilty plea to two counts of embezzlement, four counts of forgery, three counts of uttering and publishing forged instruments and one count of obtaining money by false pretense. Under existing law he would have first become eligible for parole in March 1976. However, effective January 1, 1974, Ohio enacted a "shock parole" statute, Ohio Revised Code § 2967.31. 1 On April 17, 1974 a panel of the Ohio Adult Parole Authority (the OAPA or the Board) interviewed Van Curen and recommended that he be granted shock parole "on or after April 23, 1974, when arranged by the Division of Parole." The OAPA approved the panel's recommendation incorporating it in the minutes of its regular meeting. Van Curen was given immediate notice of the decision and a "Statement of Parole Agreement" which he signed, acknowledging that he understood the conditions of parole and that he agreed to observe and abide by them. The opening sentences of this statement were, "The Members of the Parole Board have agreed that you have earned the opportunity of parole and eventually a final release from your present conviction. The Parole Board is therefore ordering a Parole Release in your case." Van Curen attended and completed pre-release classes and was measured for civilian clothes.

At an April 23, 1974 meeting of the OAPA "special minutes" were adopted in which the Board rescinded its earlier grant of parole to Van Curen and continued his case to the June 1974 meeting. On June 20, 1974 parole was denied after a hearing. Van Curen brought a mandamus action against the OAPA. In that action the Supreme Court of Ohio held that no hearing

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was required for the parole authority to rescind an order granting parole at a future date where rescission occurred before release from confinement. State ex rel. Van Curen v. Adult Parole Authority, 45 Ohio St.2d 298, 345 N.E.2d 75 (1976). The Supreme Court of the United States denied an application for certiorari. 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). Van Curen then filed a petition for a writ of habeas corpus, which the district court denied. On appeal this court affirmed without opinion. 578 F.2d 1382 (1978). The Supreme Court granted certiorari, vacated the judgment and remanded the case to this court "for further consideration in light of Greenholtz v. Inmates of Nebraska Penal Complex (442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)) ...." 442 U.S. 926, 99 S.Ct. 2854, 61 L.Ed.2d 294 (1979). This court then remanded to the district court for "determination of whether petitioner, under the peculiar facts of this case, had a protectable entitlement to release under the Ohio shock parole statute, O.R.C. § 2967.31; and if such interest did exist, whether he was accorded adequate procedural due process safeguards."

Upon remand the district court found that Van Curen's grant of parole was rescinded because the OAPA received information that he had not been truthful before the panel or in his parole plan. 2 Van Curen was given no opportunity to be heard on the truthfulness of this information or to explain it before rescission. The district court concluded that under Ohio law there is no protectable interest in early release from imprisonment until release actually occurs. Since early release is entirely a matter of grace, a grant of parole may be revoked without a hearing at any time prior to release. The court treated the expectation of parole as a mere desire or hope for release and contrasted it with the expectation of continued liberty of one already released on parole.

At oral argument it was suggested by the respondent that this case is moot in view of the fact that Van Curen has now been paroled. Principal reliance for this contention rests on the decision of the Supreme Court in Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), where an action against a parole authority was held to be moot when the inmate was paroled. However, the fact which created mootness was not the inmate's release. Rather, the case became moot when this status "ripened into a complete release from supervision...." Id. at 148, 96 S.Ct. at 348. Since Van Curen remains under the supervision of the OAPA the present case is not controlled by Weinstein. We conclude that mootness has not been established and that the important constitutional issue presented by this appeal should be decided at this time.

Parole for Ohio prisoners lies wholly within the discretion of the OAPA. The statutes which provide for parole do not create a protected liberty interest for due process purposes. Sharp v. Leonard, 611 F.2d 136 (6th Cir. 1979); Wagner v. Gilligan, 609 F.2d 866 (6th Cir. 1979); State ex rel. Newman v. Lowery, 157 Ohio St. 463, 105 N.E.2d 643, cert. denied, 344 U.S. 881, 73 S.Ct. 176, 97 L.Ed. 682 (1952). Referring to Ohio's general parole statute, which does not differ in this respect from its shock parole statute, this court stated in Wagner v. Gilligan, supra at 867, "The statute does not mandate a presumption of parole release and, therefore, does not create a protected statutory entitlement to parole on which appellees can ground their due process claim." Thus, the present case may be distinguished from Greenholtz, supra, where the Supreme Court found that the Nebraska parole statute which mandates release in the absence of certain conditions is "unique in structure and language." 442 U.S. at 12, 99 S.Ct. at 2106. The expectancy of release provided by the Nebraska statute was found to be entitled

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to "some measure of constitutional protection." Id.

Petitioner concedes that the Ohio statute provides only a possibility of parole which creates no reasonable expectation of early release. However, he argues that once a parole determination has been made its rescission is more like a revocation of parole than an original parole determination. The Supreme Court held in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that certain procedural requirements must be met before parole may be revoked. Petitioner argues that the same due process requirements should have been met in the present case. Petitioner points out that he had far more than a mere desire for release. He had been told that he had "earned the opportunity of parole and eventually a final release," that the parole board was "ordering a Parole Release in your case," and he had signed the statement of parole agreement. He argues that he had acquired a protected interest in a parole which had been granted but had not yet taken effect; it was not necessary that he be released before his interest in parole became entitled to constitutional protections. The rescission was based on a determination that he had falsified information, a question of fact upon which he was entitled to notice and a hearing.

Petitioner also argues that his expectancy of early release was based on past practice and custom of the OAPA. The person who was chairman of the OAPA when petitioner's parole determination was rescinded testified by deposition that the Board rescinded approximately 25 or 30 paroles of the six to ten thousand granted each year during his three year term. Since more than 99 percent of Ohio inmates who are granted parole are actually released without having their paroles rescinded, petitioner contends he had a justifiable expectation of release based on state custom and practice. This expectation is a "liberty" interest which the state may not take away without observing procedural due process requirements, he asserts, citing Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The respondents argue that since the Ohio statute so clearly creates no legitimate expectancy of early release the district court properly denied habeas corpus relief. Responding to petitioner's argument, the respondents assert that Morrissey v. Brewer, supra, which dealt with revocation of parole after release, is not controlling. Two distinctions are noted between parole rescission and parole revocation: (1) parole revocation deprives the parolee of a liberty already obtained while rescission at most denies a conditional liberty merely desired; (2) revocation depends on a retrospective factual determination with the attendant risk of error in the absence of a hearing while rescission remains a purely subjective determination. Under Ohio law, O.R.C. § 2967.01(E), parole is defined as release from confinement by the OAPA. Until the time of release, respondents contend, an inmate has nothing more than a hope, certainly not an entitlement to an early end to incarceration....

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