Jacob v. Cotton et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff's Motion to Alter or Amend (Filing No. 6 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA DAVID H. JACOB, Plaintiff, 8:17CV215 vs. ROSALYN COTTON, Chairperson of the Nebraska Board of Parole; REX RICHARD, Member of the Nebr. Board of Parole; RANDALL L. REHMEIER, Member of the Nebraska Board of Parole; TERESA L. BITTINGER, Member of the Nebraska Board of Parole; and VIRGIL J. PATLAN, Member of the Nebraska Board of Parole; MEMORANDUM AND ORDER Defendants. This matter is before the court on Plaintiff’s Motion to Alter or Amend Judgment under Fed. R. Civ. P. 59(e). (Filing No. 6.) The court dismissed Plaintiff’s Complaint with prejudice, finding that collateral estoppel, or issue preclusion, applies here because Plaintiff attempts to relitigate in federal court the issues decided against him in the state courts. (Filing No. 4.) In the alternative, the court agreed with the analysis of the Nebraska Court of Appeals and found that Plaintiff fails to state a claim upon which relief may be granted. (Id.)1 1 The court adds that the parole board members are entitled to absolute immunity from damages in their individual capacities regarding their decision to defer Plaintiff’s case for review. See Patterson v. Von Riesen, 999 F.2d 1235, 1239 (8th Cir. 1993) (“[p]arole board members are absolutely immune from suit when considering and deciding parole questions.”). A district court has broad discretion in determining whether to grant or deny a motion to alter or amend judgment pursuant to Rule 59(e). United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). Rule 59(e) motions serve the limited function of correcting “manifest errors of law or fact or to present newly discovered evidence.” Id. (quoting Innovative Home Health Care v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)). “Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” Id. Plaintiff argues that collateral estoppel does not apply to his case because he did not receive a “full and fair” opportunity to litigate the issues in the state courts. (Filing No. 6.) The documents included with this Memorandum and Order from Plaintiff’s state court cases 2 show otherwise. Accordingly, IT IS THEREFORE ORDERED that: Plaintiff’s Motion to Alter or Amend (Filing No. 6) is denied. Dated this 29th day of September, 2017. BY THE COURT: s/ Richard G. Kopf Senior United States District Judge 2 See Jacob v. Cotton and Nebraska Board of Parole, Lancaster County District Court Case No. CI 15-179 and Nebraska Court of Appeals Case No. A-151037, at https://www.nebraska.gov/justice//case.cgi. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public records). 2 I, the undersigned, certify that on October 28, 2015 , I served a copy of the foregoing document upon the following persons at the addresses given, by mailing by United States Mail, postage prepaid, or via E-mail: Kyle J Citta kyle.citta@nebraska.gov Date: October 28, 2015 BY THE COURT: _____________________________________ CLERK FILED A-15-1037 JAN 25 2016 NEBRASXA SUPREME COURT COURT APPEAIS IIT TEE }TEBRASKA DAVID E. COURT OF APPEATS JACOB, AppeUant, Y8. ROSALn COf,3OtI, Chairperson, Nogn. BoARD op pARor.E, AppeUees. APPE.IL FROU rEE DISTR,ICT OF I,ANCASTER, fhs gqllsiable Andrey IS BRIEF DavLd E. Jacob, pro Ee P.O. Box 2500-37269 tfurco1a, NE 68542-2500 l ilil ilil ilil ffiffiffi ff flffiil iltil ilil il ilil TABLE OF CONTENTS Table of Citations i . Statement Jurisdiction 1 Statement of the 1 Assi-gnments Case of Error Propositions of 2 Law 2 Statenent of the Facts. Sunmary 5 of the Argunents 7 Argunent 1.A. 9 Argument 1.8. 13 Argunent 1.C. 16 Argument 1.D. 20 Conclusion 21 Certificate of Service. 22 TABLE OF CITATIONS 4, 14 482 U.S. 369 (1987). 4, 18 U.S.499 3, 9 c.B.& Q. RR. co. v. chicago, 166 U.s.226 (1897) 4, 19 Collins v. Youngblood, 497 U.S. 37 3, 9 Anderson Board of v. Tiemann, 182 Neb 393 (1967) Pardons v. AUen, California v. Morales, Daniel. Dent 5'14 v. west Virginia, v. Garner (1995) (1990) v. Fulwood, 766 r.3d 57 (D.C. Cir. 129 U.S. 114 Ditter v. Nebr. Bd. of Parole, Doe . Board of Regents, v. Jones, 2014) (1889) 11 Neb.App. 473 (2OO2) 280 Neb 492 (2010). 529 U.S. 244 (2000) 12 4, 18 4, 14, 2, '12 3, 9 19 Greenholtz t'lathews Mooney Dloore . . 4, 8, v. Inmates, 442 v.S. 1 (1976) . v. Eldridge, 424 tJ.S. 319 (1976) 17 v. Holohan, 294 U.S. 103 (1935). v. Bd. of Parole, Rafert v. Meyer, Shepard v. Houston, . 4, 12 Neb.App.525 (2OO4) 29O Neb 219 19 3, 4,9, 14, 16-17 . (2015). 289 Neb 399 16-18 1, . 3, (20141. 2 9 State ex rel. Bruning v. R.J. Reyno1ds, 275 Neb 310 (2008) 1 State v. Kibbee,284 Neb 72 (20121 . 3, State v. Moore, 274 Neb 790 (2008) 3, 10' vanAckeren weaver v. v. Nebr. Bd. of Parole, Graham, 450 251 Neb 477 (1997). . Wolff v. FlcDonnell, 418 U.S. 539 119741 . 13 2 . 3' u.S. 24 (1981) . 10 . . 4, 9 18-19 Neb.Rev.Stat. 529-2320 et seq. (Reissue 2008) .. 3, 5, Neb.Rev.Stat. s83-192 (Reissue 20141 '10-1 ). - 1 14 Neb.Rev.Stat. 583-1,111 (Reissue 20141- - 13 13 Neb.Rev.Stat. 583-1 ,1 1 1 (Reissue 1981 Neb.Rev.Stat. 583-1,114 (Reissue 2014). Article I, S23, Nebraska Constitrttion . . . 6, 13-14, 3' Article V, $9, Nebraska Constitution Article II, Nebraska Constitution 18 1 19 13 3 f-l- ___l STATEMENT OF JURISDICTION i. The District Court's final. Order dismissing this case was entered on october 27th, 2015 [T26-33]. ij-. There were no motions filed tolling the tine for appeat. iii. The Notice of Appeal was filed by the Clerk of the District on Noveuber 6th,2015 andwasrserved after the weekend on or about l1th, 2015, and the Appellant has paid the necessary filing Court November fees for this appeal. iv. Disnissal of a case is a final appealable order; Neb.Rev.stat. S25- 1902(1) and Neb.Rev.Stat. 525-1912 et seg.; State ex rel. Bruning v. R.J. Reynolds Tobacco Co., 2'75 Neb 310 (2008). STATEMENT OF THE CASE a. The Appellant filed a Petition for Declaratory Judgnent(s) ask5-ng for a statement of his constitutional rights under a number of Nebraska statutes relating to his parole eligibility and the parole process in Nebraska. [T1-12] b. The issues tried below were whether the Petition stat,es a clain for which relief can be granted. c. The District Court below ruled that none of the Appe[antrs causes of actj-on stated a claim for which relief can be granted. [f26-33] d. An appellate court reviews a District Courtrs Order granting a Motion to Dismiss de novo, accepting atl aUegations in the complaint as true and drawing all reasonable inferences in favor of the non-moving party. Rafert v. Iqeyer, 290 Neb 219 (2015). To prevail against a motion to disniss for failure for failure to state a cl-aim, a plaintiff must aUege sufficient facts to state a claim to relief that is plausible on its face. Id. The factual alle- gations, taken as true, are nonetheless plausible if they suggest the existence of the eletrent or clain; Doe v. Board of Regents, 280 Neb 492 (2010). Statutory interpretation is a matter of 1aw in connection with which an appeuate court has an obligatj-on to reach an independent, correct conclusion irrespective of the determination made by the Court below. VanAckeren v. Nebr. Bd. of Parole, 251 Neb 477 (19971. ASSIGNMENTS OE ERROR 1. The District Court below erred in disnissing each of the four causes of action in the Petition: A. The ex post facto vioJ-ation of changing the substantive parole suitability standard under Neb.Rev.Stat. 583-1, 1 14(1 ) (b). B. The separation of powers violation from the Board's redeternination of a judicial branch fact decision. C. The violation of the Greenholtz Due Process holding by denying a hearing. D. the arbi-trary denial of parole suitability under Neb.Rev.Stat. 583-1 ,1 14( 1 ) (d) without a hearing. PROPOSITIONS OF LAW 1. To prevail against a l,totion to Dismiss for failure to state a.c;.aim, a plaintiff must a[ege sufficient facts to state a claim for relief that is plausible on its face. Rafert v. Meyer, 29O Neb 219 (2015) 2. Factual allegations are plausible if they suggest claim. Doe v. Board of Regents, ?80 Neb 492 (2010) the existence of the 3. It j-s the effect of the law, not the form, that determj.nes whether there has been an ex post facto violation. Weaver v. Graham, 450 U.S. 24 (1ggll Shepard v. Houston, 289 Neb 399 (20141 4- Even subtle ex post facto violations are no more pern5.ssibre than overt ones. Collins v. youngblood, 497 U.S. 37 (1990) Shepard v. Houston, 289 Neb 399 (2014) 5- After the fact changes to an inmate's suitability for parole that create a significant risk of increasing the severity or duration of the punishnent violate the ex post facto prohibition. Garner v. Jones, 529 V.S. 244 (2000) California v. Morales, 514 U.S. 499 (1995) Moore 6- In v. Nebr. Bd. olParu, Nebraska the severity of a sentence is deteruined by the mininum sentence. State v. lloore, 7. Changing 12 Neb.App. 525 (Neb.App. 2OO4) 2'14 Neb 790 (2008) the punishment and inflicting a greater punishment than inposed when the crime was comrnitted State v. Kibbee, 284 Neb 72 was is an ex post facto violation. (20121 8. In Nebraska the power to i.upose a criminal sentence is reserved to the District Courts in the Judicial branch of government. Article V, $9, Nebraska Constitution 9. A prosecutor nay appeal a sentence that depreciates the seriousness of the offense or promotes disrespect for the law as being too lenient. Neb.Rev.Stat. 529-2320 et seq. (Reissue 2008) 10. Parole Board rtreviewstt are not "hearings.t, Moore v. Nebr. Bd. of Parole, 12 Neb.App. 525 (Neb.App. 2004) 11 . There is no appeal from a Board of parole ',review.,, Ditter v. Nebr. Bd. of paro].e, 1t Neb.App. 473 (Neb.App. 2OO2l 12. The Legislature is not authorized to delegate judicial powers to executive branch officials without an appeal process. Anderson v. Tienann, 182 Neb 393 (1967) 13. The expectancy of parole provided in Neb.Rev.Stat. 583-1 to some Deasure ,1 14 is entitled of constitutional protection. Greenholtz v. Innates, 442 U.S. 1 (1976) Board of Pardons v. Allen, 482 U.S. 369, 373-4 (1987) 14. The touchstone of Due Process is protect.ion of the individual against arbitrary action of the government. wolff v. llcDonnel]., Dent v. West 418 Virginia, u.s. 539 (1974) 129 U.S. 114 (1889) 15. Violations of a state constitution violate the 14th Amendmentrs Process clause. llooney v. Holohan, 294 U.S. 103 (1935) C.B.& Q. RR. Co. v. Chicago, 166 U.S. 226 (1897) 4 Due STATEMENT OF THE FACTS on 8/22/1986, the Appellant was sentenced Gage County, Nebraska, counts of in the District court of to an indeterminate term of life for Second Degree Murder (Neb.Rev.Stat. 528-304) and each of three not less than 6 nor more than 20 years on each of two counts of using a firearm to commit a felony (Neb.Rev.stat. 528-1205) [T14-15]. During 1986, Neb.Rev.stat. 528-105 provided a ninimum sentence of Second Degree Murder and when of 10 years for the C1ass IB felony a life sentence was i,roposed without expres- sion of a minimum term for Second Degree t'lurder, the statutory 10 year minimum applied for parole eligibility. Under the good tine J.aw that applies to the Appellant, he becane eligibJ.e for parole on January 17th, 2015 [T16-171. Appellantrs sentence was NoT appealed by the prosecutor pursuant to Neb.Rev.Stat . S2g-2320 a sentence that does or fails "to NOT et seq., which provides the process for nodifying adequately promote respect "reflect the seriousness of the for the lawr,; see, S2g-2322(3)(c). the Appellant appealed his sentence as "excessive" the Nebraska offense,, althougtr Supreme Court srrmrn6lily af firmed that sentence. Prior to reaching his parole eligibility were amended date, a relating to the rnininum sentence for and parole procedures [T3-4, tltll5-2O). In to increase the mininun sentence for to fron its prior was anended to change 10 years. Late of state statutes Second Degree tlurder 1995, Neb.Rev.Stat. 528-105 was amended 20 years nu.mber in Second Degree Murder 1986, Neb.Rev.Stat. 583-192 the Boardrs "review" schedule and included: The review schedule shal1 be based on court-irnposed sentences or statutory mininun sentences, whichever is greater. Neb.Rev.Stat. S83-192(11(f) (v) (Reissue 2015) In response to these statutory changes, the Board implenented a nutrber of policy changes [T5-7, 111127-37 ]. These Board policy changes show that the Board's consideration of offenders serving time for Second Degree lilurder had been unrelated to the ninimum sentence inposed or required by state statutes. Significant to the Appellant, the 1995 Board Policy c-2 lT16,1t32J requires the Appellant to serve 10 years for each count of Second Degree tilurder before the Board would consider hin eligible for parole. This Board policy completely ignores statutory good tine credits earned by the Appe[ant and acts as an increase to the minimum sentence inposed upon the Appel1ant As a resrrlt-of -anl 8/7/2olr4- Boafd'nreview{ tlre €oard rtdefezz'ed+- ttre Appe.Iaarrtr- -- - to an August 8th, 2015 "reviewti rather than scheduling a "hearing" [T18] based upon Neb.Rev.Stat. S83-1,114(1 ) (b)&(d). Neb.Rev.Stat. 583-1,114(l) provides the Board shall order the release of an eligible offender unl-ess it is of the opinion that his or her release should be deferred because: (b) His or her release would depreciate the seriousness of his or her crime or pronote disrespect for the lawi (d) His or her continued correctional treatment, medicat care, or vocational or other training in the facility will substantially enhance his or her capacity to lead a law-abiding life when released at a later date. Neb.Rev.Stat. 583-1 ,114(1 ) (Rej.ssue 2O14, Upon reaching his parole eligibility date on January 17th,2015' the filed this suit for a declaration of his rights to procedural due process, hj.s right to not be subjected to an ex post facto increase in the AppeUant 6 severj-ty and duration of his sentence, and his right to enforce the separation of powers. See, [T1O-12, tltlA-D]. Appellant's Petition requested a discovery order to gather evidence to show not only a substantial risk of, but actually had, 5-ncreased the measure of punishment fron the statutory changes and the Boardrs poU.cy and procedure changes to determinations of parole suitability lT7-8, tl39l . The Appellees filed a Motion to Dismiss ll23-24J for failure to state a claim. Following a hearing 14-14) and briefing, the District Court disnissed the Appellant's case [T26-33] by finding it "failed to state any plausible claim for reIief....,'[T32]. This tinely appeal foUowed. SUII{MARY OF THE ARGUT,IENTS 1. The Distri-ct Court erred in disnissing each of the four causes of action: A. The Court failed to consider the 1995 change to Neb.Rev.Stat. 528-105 was the substance of the standard the Board appJ.ied to the Appe1lant i-n Neb. Rev.Stat. 583-1,114(1)(b). The effect of this substantive change in the parole suitability standards are ex post facto violations because they inflict a Elore severe punishnent than was imposed when the Appellant's crime was committed. The factual allegations about the Boardrs policies are adeguate to suggest the Board routinely infiicts a Eore severe and increased measure of punishrnent than actually inposed. B. The Judicial branch determined that the Appellantts sentence DID NoT depreciate the seriousness of his Crime or promote disrespect for the Iaw. The separation of powers prohibits that judicial power (whose procedure is adequately protected by an appeal process) fron bej-ng delegated to an Executive branch agency without also providing the procedural protection of an appeal. ___l The Boardrs use of the publicrs perception of an "adequatet'sentence as a criteria for parole suitability necessitates a public hearing to prevent arbitrary decision making under the Due Process protection. C. The District Courtts reliance upon the conctusion from Greenholtz v. upon which Gre€nholtz was based are no longer in effect; yet the Nebraska statute that the Greenholtz Court found created a liberty interest entitled to some protection has NOT been changed. Nebraskars current parole procedure violates the Due Process that WAS avaj-lable and WAS key to the Greenholtz Courtls conclusions. The Board's extending the duration and increasi-ng the severity of the Appe[ant's punishment without a hearing and its consequent appeal, violate the guarantee of an appeal in a criminal case under Art. I, S23 of the Nebraska Constitution. This state constitutional violation violates the 14th Amendnent's Due Process clause D. The factual allegations show a p1ausible case for arbitrary denial of parole suitability under Neb.Rev.Stat. 583-1,114(1)(d). The denial. of a hearing elininates the process of ].aw that is due in Nebraska (a Petition in Error) to challenge that arbitrary fact-finding. the issue is the Board's procedures implenented since the Greenholtz decision, which now take away the process of law required by the is how Nebraska's of Department Due Process clause. This arbitrary process prisons were purposely overcrowded to satisfy the desires of Corrections officials. ARGUII,IENTS 1.A. The District Court erred in failing to find the Petition stated a plausible claim for the Board,s imposing an ex post facto change in parole suitabj-Iity standards. The District Courtis reasoning on this ex post facto claim in the paragraph in 1969, J-ast of [T30] is that since Neb.Rev.Stat; 583-1,114(1)(b) was enacted prior to the AppeUantts sentencing, there can be no ex post facto vioX,ation. The District Courtts error was to place form over substance. It is the effect of the law, not the form, that determines whether there has been an ex post facto violation; Weaver v. Graham, 450 U.S. 24,31 (1981) cited in Shepard v. Houston, 289 Neb 399 , 412 (2014). Even subtle ex post facto violations are no ttrore pernissible than overt ones; Coll-ins v. Youngblood, 497 U.s. 37, 46 (1990) also cited in Shepard, Bupra. After the. fact changes to an inmate's suitability for parole that create a significant risk of increasing the severity or duration of the punishment violate the ex post facto prohibition,'Garner v. Jones, 529 U.S. 244 (2000) and CaLi.fornia v. Mora1es, 514 U.s. 499 (1995), both of which are cited to in Moore v. Bd. of Parole, 12 Neb.App;-525 (Neb.App. 2004). However, Moote is not controlling because of it dealt with a procedural issue rather than the substantive issue trrarole The suitability standards brought in the Appe1J.antrs case. factual allegation is that the Board of Parole is using the statutory 20 year minimum sentence (presumably less good that the Appetlant's is not sufficient tiue) enacted in 10 year minimunsentence (again presunably and would depreciate 1995 to deternine less good time) the seriousness of his crjse and pronote disrespect for the law if he were released on parole. The Board feels authorized 9 to impose this higher standard of parole suitability through the mandatory language in Neb.Rev.Stat. SB3-192(1) (f)(v) which says: The review schedule shall be based on court-imposed sentences or statutory nini-urun sentences, whichever is greater. Neb.Rev.Stat. Here the Board S83-1 g2(1)(f) (v) (Reissue 2014) sinply applies the new statutory uinimum of 20 years rather than the 10 year minimum sentence inposed on the AppeUant. Since no District Court can lawfully inpose a minimum sentence l.ess than the statutory what else could the "whichever In Nebraska m5-nimum' is greater" phrase in 583-192(1)(f)(v) the severity of a sentence is determined by the mean? minimum sentence; State v. lloore,274 Neb 790,793-796 (2008). Inposing a 10 year increase for the Appellantts parole suitability deternination would, if true' inflict greater, Dore severe punishment than i-mposed when the Appellantls cri-me conmitted and, therefore, would be an ex post facto violation. v. Kibbee,284 Neb a was See, State 72,83-84 (2012)(Description #3 of ex post facto violations). Thus, applying the 1995 statutory change increasing the 10 year minimum sentence to the 2O year minimum sentence could effect an ex post facto change to the parole suitability standards. Petitionrs allegations raise the fact question of whether the Board is actually applying the 1995 20 yeax minimuu standard for parole suitability to the Appe[ant (and others) or not. As a matter of Iaw, however, the District The Court should have found that, if the Board was actually doing this, it would be an ex post facto violation. But the Petition goes f,ar beyond such a bare allegation. The al.l.egationrs of the Boardrs policies [T7-9] show the Board hasi a history of inPosing arbittary to conditions upon parole suitability for Second Degree }lurder greater than those authorized by statutory law: In'1983 the Board required Second Degree Murder 6ffenders to serve 10 years without good tiue reductions before even being considered for "programmingrt which the Board (and the Department of Corrections) required to be completed before being paroled. [T5, tl28]. That policy increased the severity of the minimum sentence by nearly four years simply by ignoring good ti'ne. See, [T6, 11297. The 1996 Board policy for Second Degree Murder [T6, !130] ignored good tine and jai]- time credits mandated by statute; see, Neb.Rev. stat. S83-1 ,106. The Board's 1999 policy for igmored good tine and jail Second Degree Murder [T6, !132] again time credits but also increased the tj-xne from the 1995 increase in the mininum to 20 years [T7, n133-35]. The Board now required 15 years before parole consideration. There is no legal basis to withhold parole consideration for 15 years. This is an arbitrary determination of parole suitability. Sj-nce 2OO3 the Boardrs policy for Second Degree l,lurder cases is to ,'review, cases in accordance with Neb.Rev.stat. 583-192(9). [T7, n361. That statute has been renumbered and is now 583-192(11 (f)(v) (Rej-ssue 2O14). These written poaicies faw iegarding gooa show the Board's arbitrary disregard for statutory tine and jair titre credits. The Appellant sought a discovery order to show the consequences of these statutes, the Board,s policies, and their application to the Appeltant 11 and others simitarly situated. [T7-8, !139]. The discovery sought a list of aU offenders wj-th a sentence for Second Degree Murder since 1970. That ].ist should include the Inmaters imposed name and inmate number, the minimum and maximum sentence by the Court, the Good Time tost (if any) r the sentence begin date, parole eligi-bility date, their first parole hearing date, and the date they were paroled (or indicate they have not been paroled). It is the Appe11antls observations over the last nearly 30 years that make him confident that this list would expose a routine increase in the durati-on of punlshnent for these offenders. At the very least these allegations suggest the existence of these ex post facto violations. The District Court erred in disnissing this first cause of action because the factual allegations, taken as true, are nonetheless plausible because they suggest the existence of the a[eged ex trrcst facto violations. Doe See , v. Bd. of Regents,2SO Neb 492, 506 (2010) for the standard for a Motion to Disniss. Compare this to Daniel v. Fu1wood,'766 E.3d 57 (D.C. Cj-r. 2o14li where the Court not only discusses the standards for a Ivlotion to Dismiss but also the ex post facto considerations applied to parole suitability standards. This case should be reversed and remanded with instructions that the first cause of action states a plausible claim for the violation of the Appellant's right not to be subjected to an ex post facto change in parole suitability standards. 12 1.8. The District Court erred in failing to find that the Board's use of Neb.Rev.Stat. 583-1,114(1)(b) usurps the Judicial branch power to determine the severity of a criuinal offenderrs sentence, violating the constitutional separation of powers. The District Court found that Neb.Rev.Stat. 583-1 ,'114(1 ) (b) did not violate the separation of powers [T31 ]. But the District Court appears to have misunder- stood the claim because it also said: "The increase in the ninimum sentence for second degree murder was enacted does not involve murder; see [f In 11 Nebraska , in 1995. " fhis separation of the 1995 increase to the nininum sentence for llB] powers clain second degree . the poser to inpose a criminal sentence is reserved to the District Courts in the Judicial branch of government; see, Art. V, 59, rr... and pass such sentence as nay be prescribed by law.rtThe minimum sentence inposed determines the severity A defendant is of the punishnent; Slate v. Moore, guaranteed an appeal I, 52: of the Nebraska Constitution. of the criminal case decision Then Neb.Rev.Stat. 529-2320 2008) provides the prosecutor the power supra. in Art. et seq. (Reissue to appeal the sentence imposed if they feel it depreciates the seriousness of the offense or proDotes disrespect for the law; see 529-2322(3)(c). That determination also gets rnade by the Judicial branch and Art. II of the Nebraska Constitution forbids the Executive branch Board of Parole from exercising that It is true that since power- 1969, Neb.Rev.Stat. 583-1,11411)(b) allowed the of parole to increase the severity of an offender's punishnent by denying or defering parole for precisely the same reasons the judiciat branch determined in S29-2322(31(c). But prior to the 2003 change to Neb.Rev.Stat. 583-1,111 Board 13 the Board uade these decisions in "hearings." See, Neb.Rev.Stat. 583-1'111 (Reissue 1981) described in l'loore v. Bd. of Parole, supra, 12 Neb.App. at S3Z tT9-101. A ,,hearing,' before the noard was a constitutionally significant proceeding in Nebraska because an appeal process; through the Petition in Error statutes, Neb.Rev.Stat. 525-1901 et seq. (Reissue 2008); was then available. Since the 2003 change to 583-1 ,1 1 1 the Board is no longer requirgd to in "hearings." Instead the Board holds "reviews"; see, Id., 12 Neb.App. at 532-533 tT1Ol. There is no appeal process from a make such determinations Board,'review,,; Ditter v. Nebr. Bd. of Parole, 11 Neb.App. 473 (Neb'App' 2OO2l' Therefore, when the Board defers or denies paroLe to an eligible offender for the reason set out in 583-1,114(1)(b) it extends the duration of and increases the severity of the punishment of that offender' renaking the Judicial branch decision without any appeal process. This violates the guarantee of Art. I, SZS. [As described in 1.C., infra, this is also a Due Process violation'] of powers, the Nebraska supreme court has said the Legislature i-s not authorized to delegate judicial powers to executive branch negarding the separation officiaIswithoutanappeaIprocess;see,@,182Neb393,403 (1967). Art. I, s23 nakes an appeal process particularly necessary judiciat Note power in a criminal case is that the Appellant is NoT where a concerned' attacking Neb.Rev.stat. s83-1,111 as violating the separation of powers. That statute gives the Board discretion to provide ,,hearings', which would preserve an offender's right to appeal' In additioni note that the Board night deny or defer parole for one of the other reasons set out ) without necessitating an appeal' Holdever' the Board's failure to assert 583-1,114(1)(b)rs criteria once an offender reaches in Neb.Rev.Stat. 583-1 ,114(1 parole eligibility might render a later findinq of that ',fact,, arbitrary. facts of the Appell-ant's crimj-nar case present a unique demonstration of arbitrary fact-f5-nding in the Board's procedures. rn the Board's August,2015 The "review, of the Appeuantrs case the Board informed me they received retters indicating ttpublic opposition" to my rerease on parore. This raised the question: Hoh' does the Board know if this "public oppositionrr is based on factsr just urban regend, or rnternet ru.mor? The only way to determine this would be to hold public hearing and have those in opposition show up and describe why a they are opposed. rt is likery to some be hard to gauge the pubric thirty years later. rn ny case reaction to any crimj-nal codefendant Ken Johnson hung himself case in the Jair before a triar could take place. rn the locar press that reft me as the focus of public anger. How Bany of those i-n "opposition. understand Gage Corxtty why there are three counts How many know who of Second Degree Murder fired the fatal gunshots? but only two gun I don,t mean to charges? sound as if I an not taking responsibility for what r did or didn,t do, but a publ-ic hearing would be the place and process for educating those uembers of that ',public opposition,' as to what the facts are. Surely the l,egislature did not enact SB3-1,114(1)(b) to permit ignorant angry mobs to usurp the Judicial branch function of inposing "just" sentences. If the Board,s decision under SB3-1,114(1)(b) is based upon "public opposition".then a hearing must be hetd to determine if that,rpubJ-ic opposition" is fact based or not. Anything less would render such a trfactrl finding arbitrary by definition. This second cause of action was both facial (because the procedures the statutes allow the Board to follow can be used against any offender eligible for parole) 15 and as aPplied to the Appellant (because the Board DrD fouow procedures improperry delegated to the Executive branch Board of parole). ttre District Court erred in finding no basis in law or fact for this cause of action; the delegation of a Judicial branch power without an appear process speaks for itself. This cause of action shourd be remanded back to the District court. 1.c. The District Court erred in disn5-ssing the thj.rd cause of action by relying upon Greenholtz v. Innates, 142 V.S. 11979) to find that Nebraska,s 1 current parole procedures did NOT violate Due process. District court's order disnissing this cause of action relied upon the conclusion of the u-s- supreme court in Greenholtz, s:rpra lT31-32). The District The court recited, "The Nebraska procedure affords an opportunity to be heard, and nhen parole is denied it informs the inmate in what respect he falrs short of qualifying for parole; this affords the process that is due under these circumstances. The constitution does not reguire more.,f This quote comes directly from Greenhol-tz, supra, 442 u.s. at 't 6. But then the District court ni-srepresents the gree44ortz decision, continuing, 'rsince the board of parolers decision at its initial review hearj.ng is one that must be made largely on the basis of the inmate's file, this procedure adequately safeguards against serious risks of error and thus satisfies due process." [T32] This is The District court modified the forlowing Since the decision is one that NOT on page 16 of Gree'nholtz. language from Greenholtz: must be nade l.argel-y on the basis of the inmatets fires, this procedure adequately safeguards against serious risks or error and thus satisfies due process. Greenholtz, supra, 442 U.S. at The District 15 Court made two changes: (1) "deeisionrrbecomes ,rboard of parolels l6 decision"; and (2) he inserts, "dt its initiar review hearingt,. Note how the District court inserted the word, "hearing, tr rirhen in fact the Appelrant rece j-ved only a "review'r'That is a constitutionarly significant difference as r describe below. Purthermore, the he quoted from Moore District court misrepresented the Appeltantls claim when v. Bd. of parole, supra, r... the petitionerrs ,,arguEent that he has a protected state-created liberty interest in being parored i.s without nerit"" rg- at 539. rf Moore had argued that he had a liberty i.nterest in being paroled, he was incorrect. But that is not the Appeuantrs c].a5.m. The Apperrant does NOT claim he has a right to be paroled. [7:15-8:14]. The Appellant claims onry a Due Process right to adequate procedures to deterBine his parole suitability. The clai-n the Appelrant brings was Nor decided by the u.s. suprene court j'n Greenhortz. The procedures Nebraska follows have changed since Greenholtz. The Greenhortz court found, trrwo types of hearings are conducted: 5-nitiar parole review hearings and finar parore hearings., Greenholtz, supra, 442 u.s. at (enphasis added) - The court arso said, 'lEowever, si.nce the Nebraska parore 4 Board provides at least one and often two hearings every year to each eligible innate, we need of only consider whether the additional procedures uandated by the Court Appeals are required under 1424 u.s- 3191 Mathews v. Eldridge, at 335...." Greenholtz, supra, at 14 (enphasis added). But Nebraska no longer provides "heari.ngs" suitability finding. upon parole the standards set out in until after the Board has made a favorable parole The 2003 change eligibility to Neb.Rev.Stat. 583-1,111 replaced "hearing,, with only "reviews" and changed the legal landscape. Therefore, the Greenhol-tz Courtrs conclusion that Nebraskars paro].e procedures are adequate can no }onger be reJ.ied upon. l7 Nebraskats parole procedures roust neet the requirements of Due Process. The Greenholtz Court found that Neb.Rev.Stat. 583-1,114 created a liberty interest in the process to determine parote suitability; Greenholtzr supra, at 12 (...the expectancy of parole provided in this statute is entitled to constitutional protection.) See 373-374 (1987). tne touchstone soue neasure Elso, Board of Pardons v. Al].en, 482 U.S. of Due Process of 369, is protection of the individual against arbitrary actj-on of the government. Wolff v. McDonnell, 418 U.S. 539, 558 11974) cj-ting Dent v. west v.irginia, 129 U.S. 114, 123 (1889). When the Board denies or defers parole to an eligible offender under S83- 1,114(1)(b) this increases the duration and severity of the offender's ptrnishnent by extending their minimum sentence. Thi-s has constitutional conseguences. First. the Boardts denia]. of parole suitability based upon $83-1,114(1)(b) is arbitrary. Eoth the Legislative branch (by enacting statutory sentencing and the Judicial branch (through i-nposition of sentences and appeals thereof) have made the determination of hrhether or not the offenderrs sentence depreciates the seriousness of their offense or promotes disrespect for the Ia!r; see Stat. ranges) 529-2320 et seq. described in Argument Neb.Rev. 1.8. above. The Board possesses no more evidence about the offense than the sentencing court did. Even public opinion or oppos5.tion is available at the tine of sentencing and appeal. Therefore, defering or denying parole suitability under 583-1,114(1)(b) to an eligible offen- der is equivalent to another sentencing of the offender with a different result. How could such a decisi-on be anything but arbitrary if there was no question of the adequacy of the punishrnent imposed by the sentencing eourt? A.hearing is required to satisfy the mininun requirements of such arbitrary decisions. Due Process The Appeltrant was.NOT afforded l8 that to protect against nini.num constitu- tional. protectiont nor, I believe, is any other parole eligible offender denied or defered under 583-1 ,1 14( 1) (b) . Second, the Nebraska Constitution guarantees a procedure of arbj.trary decisions in sentencing. Art. I, inal case. Extending the duration of to avoid the inposition $23 guarantees an appeal in a crj.m- an offender's mj-nimum sentence and increasing the severity of his punishment resentences that offender and entitles then to an appeal in Wo1ff of that decision. This is comparable to the taking of good time v. McDonnell, supra, which requires a hearing and appeal An appeal credits process. is only available to a parole eligible offender when a hearing has been provided; see the Petition in Error process d.escribed in Argr:ment 1.B., supra. The Appeltant was denied this appeal because he was only provided with a review; see, }i!!gl, supra. Therefore, the Appellant's r5.ght to an appeal , fron the extensj.on of the duration and increased severity of his punishment was violated by the Board. This violation of the State Constitution violates the 14thAnendment'sDueProcessc1ause;see,@'294U.s.1o3'112113 (1935) citing C.B.& Q. RR. Co. Here the State has clothed v. Chicago, 166 U.s. 226,233-234 its agent, the Board of Parole, vith the (1897). power to annul or evade this state constitutional guatantee. This 6iSiiii6sal of the. third cause of action shoul-d be reversed for a deternin- ation by the District Court. Either the Board,s denial or deferal of parole suitability using $83-1 ,114(1 ) (b) is unconstitutional on its face OR \ilas uncon- stitutionaL as applied to the Appellant because the Board did hear5.ng. The NOT provide a Petition adequately states a clain for either determination by the Court below. 19 1.D. The District Court erred in dismissing the fourth cause of action based on Greenholtz, supra and Moore v. Bd. of Parole, supra. , As action in Argunent l.C. above, the District Court's rejection of this was based on cause of the erroneous reliance on the Greenholtz conclusion which is no longer factually supported by the procedures currently adopted and followed by the Board. [T31-32). The Appellant has made no clain to a right to be paroled. The Appellant has a right to a process that is not arbitrary. The factual allegations in the Petition show that the Board failed or refused to consider the Appellantrs abi!-ity to obtain the substance abuse treatnent through the Veteran,s Administration progran. It is one thing for the Board to decide that an offender or the Appellant needs substance abuse when the facts show treatnent. I an not challenging that authority. that requirement can be satisfied, it is wrong However, for the to defer an eligible offender under 583-1,114(1)(d) without a hearing. denial- or deferal extends the severity and duration and that consequence of the offender's Board Such a puni-shment requires an appeal process guaranteed by Art. I, S23. Again, the problem here is not the Boardrs choice to require substance abuse treatment that is the problem. The problem is that they chose to make in a I'reviewl while the Appellant was el-igible for parole. that determination Ehe consequences their decision require a hearing to guarantee the right of appeal. The of failure to provide that hearing process violates the State Constitution and, therefore, the 14th Arnendmentrs Due Process clause, as described in 1.C. above. The ability of the Department of Corrections to control which, and how many, inmates received treatnent allowed then to control the parole function and overcrowd the prison systen to suit their needs and desires. The Legislaturers enactment 20 of Neb-Rev.Stat. 583-1 ,110.01 was ai-ued at endS-ng this subterfuge. Not providing a hearing permits thj-s subterfuge to continue. Did the Board consider the options availabLe to this Appellant or does the Board (containing former Dept. of Correctj-ons officials) Department rs subterfuge? The District sinply wish to ignore 583-1,110.01 to continue the Court's dismissal of the fourth cause of action should reversed and remanded with instructions that (1 be ) the concLusion from Greenholtz only applies when hearings are provided by the Board and (2) the Court nust address the fourth cause of action and deterroine whether Sg3-1 ,114(1 ) (d) can be or has been applied arbitrarily to the Appellant, resulting in the violation of the Appellantrs right to the Due process of Law. CONCLUSION The disnissar of the Appellantrs Petition must be reversed and to the District Court. remanded Petition adequately makes factual allegations which plausibly suggest the violation of the Appellantrs rights by the state statutes and Board The of Parole actions. vid H. J P.O. Box 25 Linco1n, 21 7269 68542-2500 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the Appellant's Brief was p.laced into the possession of Dept. of Corr. Svcs. staff for nailing by first-class, postage prepaid U.S. maj.l to: Kyle Citta, Assistant Attorney General, 2115 State Capitol , Li-ncoln, of Janqary, 2016. NE 22 h$ J FII.ED A-15-1037 JUl,t 2 s 20ffi ffiX:ounr Ilt IBE DAVID H. trEBRASKA COURT OF aPPEALS iIACOB, AppelLant, vs. ROSATYN COTTON, NEBR. BOARD Chairperson, OF PAROTE, AppeUees. FROM DISTRICT COURT OF EER able AndreY R. J H. tfaeob, pro Ee Box 2500-37269 h, NE 68542-2500 TABLE OF CONEENTS Tab1e of Citations . Propositions of Law. Arguuents 1st Assignment of Error 2 of Error 5 3rd Assignment of Error 6 4th Assignment of Error 7 2nd Assignment Certificate of Service. . 11 TABLE OF CIIATIONS Board of Pardons v. A1len, 482 U.S. 369 (1987) Garner v. Jones, 52g ll-i. - 244 (2000). Greenholtz v. Inmates, 442 IJ.S. 1 (1979). 1, 1, v. Graham, 450 U.S. 24 (1981) 2 1, state v. Ivloore, 274 Neb 790 (2008) 3 . 1, Shepard v. Houston, 289 Neb 399 l2}14l Weaver 4 .1, 7, 9, . Pratt v. Board of Paro1e, 252 Neb 906 (1997). Swarthout v. Cooke, 562 U.S. 216 (2011) 9 5 . 1, 9' . 1, 2 10 10 PROPOSITIONS OF LAW l. It is the effect of the Iaw, not the form, that determines whether there has been an ex post facto vioLation. Weaver v. Graham, 450 U.S. 24 ('1981) Shepard v. Houston, 289 Neb 399 (20141 2. After the fact changes to an j-nmaters suitabil-ity for parol-e that create a significant risk of increasing the severity or duration of the punishment vioJ-ate the ex post facto prohibition. Garner v. Jones, 529 U.S. 244 (2000) 3. In Nebraska the severity of the sentence is determined by the minimum sentence. State v. Moore, 2'14 Neb 790 (2008) 4. Determining parole "e1igibi1ity,' is a ministerial act. Pratt v. Board of parole, 252 Neb 906 (1997 ) 5. Nebraska parole statutes create a 'rliberty interest,, entitled to constitutional protection . Greenhol-tz v. Inmates, 442 U.S. 1 6. When some ( 1979 ) a state creates a liberty interest, the due process cLause requires fair procedures for it,s vindication. Swarthout v. Cooke, 562 U.S. 216 (2O11't ARGUIT,IENTS !. The Ex Post Facto claim (Assignment of frror #1 ) The Appellee's argusent regarding the First Assigmment of Error j-s inadequate and attempts to mislead the Court. Their first mj-stake is to "restate'r this assignment of error into sonething it is not. [The Appel]-ee has even trrestatedrr the Parole Board's decision as reJ-ying upon 83-1,114(1)(c) rather than 8311114(1)(d) on page 10 of their Brief.l tried to restrict Soth the Appellee and the Court below the ex post facto claim to the form of Neb.Rev.Stat. $83- 1,'114(1)(b). That is error. The ex post facto violation comes from the effect of Neb.Rev.Stat. 528-105 and 583-192. The changes to these statutes a]-].ows, if not requires, the Board to violate the ex post facto prohibition. It is the effect that matters; Weaver v. Graham, 450 U.S. 24, 31 (1981) and Shepard tl. Houston, 289 Neb 399, 412 (2O14'l . Neb.Rev.Stat. 583-1 ,114(1)(b) merely puts attrlamert or "Labell'on the parole suitability standard to be used by the Board. whether or not an offenderrs "release would depreciate the seriousness of the offense or promote disrespect for the lawrr is a generic !.abel. not tied to any one offense. Surel-y the suitability.standard under that nane is different for a couoon burglary than for a second degree murder offense. The naue of the suitability standard did not change but the actual value for the Appellantrs offense did change. So what is the actual suitability standard for a second degree murder case? Here the AppeUantrs cl.aim is that the suitabil-ity standard has been legisJ.atively changed and increased. The Legislature accompLished this change to the suitabi].ity standard by doing two things: (1) changing 528-105's minimum sentence for second degree murder from 10 years to 20 years in 1995; and (2) using nandatory language when changing 583-192 to require the Board to use that greater statutory minimum sentence to determine an offenderrs "suitability" for release on parole. Under 583-192, Lf the Board finds an offender not "suitable" it provides only I'reviews.. Once an offender reaches their "eligibility;" which is just a ministerial determination, see Pratt v. Board of Paro1er 252 Neb 906, 911 (1gg7);itistheBoard1s.,suj-tacontro].swhether the offender continues to receive onJ.y "revj-ews." The Appellee makes no mention of the change to 583-192 or the Board's criteria for making suj-tability determ'inations. Nor does the Appellee have any explanation that could justify using the greater of the minimum sentence set out for an offense rather than the minimum sentence actualLy inposed by the court. By law that minimum sentence imposed must be greater than or equal to the minimum sentence set out for the crime in statute. There can be no other use for that roandatory language in 583-193 except to require the use of a later increase in the statutory uinimum sentence. Under the new mandatory language in 583-192 a second degree murder offender because the Board's is only going to get trrevies/srr suitability decision j-s now dictated by the greater statutory is prima facie evidence of creating a 'rsignificant risk" of increasing the severity or duration of the punishuent for minimum sentence of 20 years. This second degree murder offenders such as the Appellant. This is more than just a procedural change. The Petition alleges a substantive change has been made to the suitab5.lity standard for the offense of second degree murder and the Legislature has required that change to be used in the Board's suitabiJ.ity determinations. The Petition alJ.eges that one can see the ef,fect of this substantive change by J.ooking at the Boardrs changing poJ.5.- cies and alleges that discovery will- reveal the actual increase i-n punishnent for second degree murder offenders in response to the Legislaturets changes to 528-105 and 583-192. The Board has not denied these claimsi they have not yet filed an Answer to the Petj-tion. Procedurally, the factual allegation that this new suitability standard of requiring 20 years rather than the prior 10 years for "suitability" for parole must be accepted by the Court as true. This was the District Court's error that requires reversal and remand of this claim. The best evidence that the Appelleers "restatement" has misled then is that they confuse parol-e "e1igibility" rdith the parole "suitability" issue the Appellant brought to the Court below. The Appellee argues that "[t]he change in the crini-na1 penalty did not include any legislative changes in parole el-j.gibi].ity.,r1n.10 of the Appel.1-eers Brief.l But the issue raised is. standard and the LegisNOT "el.igibi1ity,' it is the change in the t'suitabitity" lative mandate to apply that increase in "suitability" deterrninations even if it is greater than the niniuum sentence actually inposed by the sentencing court. That Legislative increase in the "suitability" standard has the effect of increasing the risk of, if not mandating, the i.ncrease in severity and duration of the punishment imposed. Legislative changes that create such effects violate the ex post facto cl-ause; Garner v. Jones,52g 1t.5.244 (2OOO). It is 583-192's mandatory language that is the culprit that the Appellee chooses to ignore. 2. The Separation of Powers cl-aim (Assignment of urror #2) The Appelleets argument on the Second Assignment of Error fails to respect the uniqueness of substantive Nebraska ].aw. Instead, the Appellee once again confuses this with a parole release decision; see, r'...the Parole Boardrs denial of paroIe...." on parole. [p.11, Appe[eers Brief]. This issue is NOT about'rreJ-ease 1' In Nebraska, the severj-ty of the punishment irnposed on offenders is a substantive power reserved for the Judicial Branch; see, Artic].e V, $9 of the Nebraska Constitution. This judicial branch power is subject to review by the Courts under the standard set out in Neb.Rev.Stat. 529-2322(3)(c) and Article I, S23 of the Nebraska Constitution. It is the Appellant's claim that once an offender has reached their parole eJ-igj-bi1.ity date (a ministerial- calculation from the minimum sentence imposed) any Parole Board decision that finds the offender unsuitable for paroJ-e necessarily increases the severity and duration of the punishment inposed. Again, perhaps uniquely in Nebraska law, the severi-ty of the punishment is determined, by the minimum sentence imlrcsed; State v. Moore, 2'14 Neb 790 , 793-6 (2OOB). That Parole Board decision is no different than if the Dj-strict Court sentencing that offender had imposed a greater ninimum sentence. The standard for parol-e suitability same standard found in 583-1 ,114(1 ) (b) is the very already applied by the Courts in Neb.Rev.Stat.529-2322(3)(c) in determining the severity of the punishment imposed. once the Courts exercise the power the stiLe constitution exclusively sets out for that branch, no other branch of government can be given that power. The Legislature is not authorized to pernit the Executive branch Board of Parole to retry the facts of the case and then exercise that same standard Even same substantive judicial power under the of evaluation. if the Legislature could delegate that judicj-al. fact-finding poirer to the Executive branch Board of Parole, they would stj-l1- have to respect the state constitutional guarantee of the right to appeal that judicial polder decision found j-n Artic].e I, S23. Since such an appeal- is only guaranteed when the Board holds a "hearingrt' the Legislature's failure to require the Board to hold I'hearings,' for al]. e]-j-gible offenders makes even a del-egation of this power improper and inadequate. 3. rhe Procedural Due Process claim (Assignment of error *3) The Third Assignment of Error is about the procedural Due Process aspect of the second claim regarding the suitability standard under 583-1 ,114U ) (b). The Appellee has nashed both the Third and Fourth Assignments of Error into one so I wi]-]- address some: of therr errors rn the next argument. Suffice it to say, for now, that at]. their arguments about "no right to paroletr are a misrepresentation of the issue. As in the Second Assignnent of Error we are dealing with the Boardrs use of the suitability standard set out in 583-1,114(1)(b). Using this standard to deny an e].i-gib]-e offender a hearing wiJ.J. increase the severity and duratj-on of the punishment imposed. This is uniquely Nebraskars substantive law as I described above. And, as above, the uniqueness of Nebraska law requires that an offender is guaranteed an appeal for the imposition or increase to that severity of punishment; Art. I, The c1aim here S23, Nebraska Constitution- is a procedural one. I an offender unsuitable for parole. am NOT My cLaim saying the Board cannot find is that Nebraska law, the Nebraska Constituti-on, and the Federal Constitutionrs Due Process Clause requires that the offender's right to that appeal be respected. Here my argument is that, procedurally, if the Board wants to find an offender unsuitable for parole under the standard set out in 583-1,114(1)(b) then the Board is, procedurally, required to do so in a "hearing'r so. that offender's right to an appeal is respected. Nebraska J-av, provides a judicial appeal from a Board decision made in a "hearing;'r the Petition in Error process. The process currently foUowed by the Board violates the Appellantrs right to that appeal and, therefore, his right to the Due Process of ' Law. Since the time of the Greenholtz decision; Greenholtz v. Inmates, 442 U.S. 1 (1979); ttre Nebraska Legislature has allowed Nebraskars parole process to change. The result of the changes to 583-'192 and 583-1,111 are that no offender gets a parole "hearing,, until after the Board has made the decision to release that offender on parole. This j-s done by restricting "hearingslt to what are calIed "final hearings.ttBut prior to that "final hearing'r the Board sets a date that they wil.l release that offender on parole; that is the date of the "finaL hearing.trThat release decision may change between the time the Board informs the offender of the date of that t'final hearing'r and when that t'fina} hearingtt actually occurs. Obviously, some offenders may do something stupid in that tine period that causes the Board to change their nind. But as of right now the process being followed by the Board means that neither the parole suitabil.ity determination nor the release on parole deternination is different made as a result of a "hearing.l'That is a very significantly process than was fo].]-owed at the tine of the Greenholtz decision. It is this new and current process that I cJ-aim is J-ega11y inadequate, leads to arbitrary decisionmaking (banned by the Due Process protection), and creates. a significant risk of increasing the punishment imposed on offenders, and specifically violates the Appellantrs right to the Due Process of Law. This case should be reversed and remanded with a clear statenent of Nebraskars unique law. 4. The 583-1,114(1)(d) Due Process C]-aim (Assignment of Error *4) The Fourth Assignnent of Error is even more fact specific. It relates to the Board's decision that the AppeDant needs substance abuse treatment under 583-1,1'14(1)(d). Neb.Rev.Stat. 583-1,110.01 allows the Board to require the Appel].ant to participate in such an approved treatment prograB as a condition of his release on parole. The factual aUegation is that the Appel-Lant is a veteran and the Veteran's Admj-nistration has just such an approved treatment program available for the AtrryeUant. Without a "hearingt'there is absoluteJ-y no evidence that the Board knows this or even considered it in maki,ng their decision. Again, the Board might deny this when they Answer the Petition. Did the Board make an arbitrary decision without all the facts? Obviously, a "hearing', (the results of which could be judiciaLly tested in the Petition in Error process) could make a showing of that determination's adequacy I argue is required by the Due Process CLause of the 14th A.G. and Anendment. rs l'lisdirection about t'The Right To Paroler! I want to address the A.G.rs misleading arguments about no'rright to parole." The Federal Constitution does not require States to make or have a parole process. Horirever, onces States do that and create sufficient statutory require- ments then the Due Process Clause requires those procedures to meet certain requirements The to prevent arbitrary decisionmaking. A.G.'s reliance on Swarthout v. Cooke,562 U.S. 216 (2011) is misplaced. In Swarthout, ttre U.S. Supreme Court found that California statutes created a l.5.berty interest in the parole process; Id., 562 ll.S. at 22O; because the statutes provide that the Board shall set a release date. But the Court aLso found that Cooke and the other inmates v,rere al].owed to speak at their parol-e hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons that parole was denied. California statttes then provided the prisoners the right to seek judicial- review in a state habeas petition. The Court not only found that process to be adequate but also found that the Federal Constitution did NOT require the "some evidence,,standard to be applied to the Boardrs decisj-onnatfing. The A.G. correctly recites Swarthout for the tlro step Due Process analysS-s, but gets the first step wrong. "We first ask whether there exists a liberty or property interest of whj.ch a person has been deprived; " It., 219. fhe A.G. c1aiBs this first Supreme step fails for the Appellant. 562 tJ.S. at WRONG! The U.S. Court in Greenhal-t,z, supra, 442 U.S. at 12, ruted that the interest in Nebraska's parole process set out in 583-1,114 was "entitled to some measure of constitutional protection." In Board of Pard.ons v. Allen, 482 U.S. 369, 373-4 (1987), the U.S. Supreme Court said Nebraskars statutory provision created of the land until the U.S. Supreme Court overturns the Greenholtz decision. This Court is bound by that ruling. a ,,Iiberty interest.tr This is the supreme The U.S. Suprene Court's decision ]-aw that in Nebraska, as in California, the state parole statute(s) creates a Liberty interest,then due process protections appty. rtwhen, however, a state creates a liberty interest, the due process clause requires fair procedures for its vindication...." s!pE, supra, 562 U.S. at 220. Whether Nebraskars CURRENT procedures are adequate is the second step of the due process analysis. Once again, the A.G. misrepresents the U.S. Supreme Court decision in Greenhol-tz, supra. The A.G. recites: "The Nebraska procedure affords an oppor- tunj-ty to be heard, and when parole is denied it informs the j.:rnate in what respect he falls short of qualifying for parole; thj-s affords the process that is due under these cj-rcumstances;', Greenholtz, supra, 442 U.S. at 16 ienphasis added). But the A.G. forgets or rdants to hide just what "circumstancesrt the U.S. Supreme Court actual.J-y found about Nebraska,s process. The Greenholtz Court found that this "opportunity to be heard" was in a hearing for every parole eligib]-e offender. S+e, Id., 442 U.S. at 14, trHowever, since the Nebraska Parole Board provides at least one and often two hearings a year to each eli-gible inmate....'r The Greenholtz Court found Nebraska's process adequate only because eJ-5.gibl-e offenders were getting hearings. That is no longer Nebraskars current process and that is why the Appellant has brought this case to the Courts. Greenholtz is still the supreme law of the land that Nebraska Courts must foIlow. Nebraskars parole statutes stil.L create a liberty interest in the parole process. Nebraska's parole process must stil]. meet the ninima]- requirements of the Due Process clause. But do the current procedures that provide no hearing whatsoever untiL stilI after the Board has made the parole release decision meet those minima1- requirenents. The Appel-l-ant claims guarantee requires Nebraska that the Due Process to provide a "hearing" (subject to judicial review) for every parole eligibl.e offender. 10 If the supreme l-aw of the land is to be changed then this Court should reverse and remand thi-s case and requS.re the A.G. to Petition the U.S. Supreme Court to make the change they seek. Respectfully submitted, 542-2500 CERTIFICATE OF SERVICE The undersigned hereby certifies was placed first-class, that a copy of this Appellant's Reply srief into the possession of Dept. of Corr. Svcs. staff for mailing by postage prepaid U.S. mail to: James D. Smith,, Asst. A.G., state capitol, Lincorn, NE 68509-8920, on tni, 1O'|L", o, June, 2115 2016. Cr+Tqffiq q' $5D FILED IN THE NEBRASKA DAVID H. JACOB, A - 15 - 1037 ) Appellant, vs. ltlAR SUPRE}4E COURT 20 2017 NEBRASKA SUPREME COURT COURTAPPEALS ) ) PET]TION FOR FURTHER REVIEW ) ROSALYN COTTON, ChairPerson' NEBR. BOARD OF PAROLE, ) ) ) Appellees. ) Appellant, pro se, pursuant to Neb.ct. RuIe s2-102(r) and petitions the Court for further review of the Court of Appeals ruling in this cot4Es NOW the matter. Appellant assigns the following errors: 1. The court of Appeals erred in their analysis, and finding the petition failed to state a claim for a violation, of the Ex Post Facto prohibition' 2. The Court of Appeals erred in their analysis of, and finding the Board did not violate the separations of powers provision of the Nebraska Constitution' 3. The Court of Appeals erred in failing to find a Due Process violation in the current parole Board process Of ,,reviews" for parole eligible offenders rather than "hearings. WHEREFORE, " for the reasons argued in the Memorandum Brief in Support of of this petition, the Appellant prays the court will grant further review of the the court of Appeals decision, reverse their ruJ-ing with a stateEent and Appettant,s constitutional rights regarding the Nebraska Parole statutes current Board of Parole's procedures in fight of the U'S' Supreme Courtrs decision in Greenholtz v. Inmates, 442 U.S. 1 (1976), and remand this case to the District Court for a vindication of those rights ' tfully P.O. Box Lincoln, submitted, 542-2500 010.0s6.039.21' IN THE NEBRASKA SUPRET4E COURT A-15-1037 DAVID H. JACOB, Appel]-ant, APPELLANT ,S I,IEI,IORANDUM BRIEF vs. TN SUPPORT OF ROSALYN COTTON, Chairperson, NEBR. BOARD OF PAROLE, PETITION FOR FURTHER REVIEW Appellees. COI4ES NOW the Appellant, pro se' and presents the fo].].owing lvlemorandum Brj-ef is Support of his Petition for Further Review. The Appellant has assigned three errors: 1. The Court of Appeals erred in their analysis, and finding the petltion failed to state a claim for a violation, of the Ex Post Facto prohibition. First, the Court of Appeals and the District Court below erred in not accepting the factual allegations of the Petition as true; Rafert v. Meyer,29O Neb (2015); Doe v. Board of Regents, 2BO Neb 219 492 (2010)' Tire petition made a prima facie case for an Ex Post Facto violatj-on. The Petition alleges that the Board, as a matter of written Board policy adopted long after the Appellant's sentence was imposed, uses changes in 528-105 to routinely enforce a greater penalty as the suitabitity standard for parole imposed upon the Appellant and others. The Petition shows than was originally the Appellant was sentenced when the statutory mi-nimum sentence for Second Degree Murder was 0 years lT2, !ltl4-61. At that time the Board's policy used '1 ten years to be considered suitable for parole for Second Degree Murder [T5, 1t1t2g-321. Nine years after the Appe1lant was sentenced, the statutory minimum sentence for Second Degree Murder was raised to 20 years in Neb-Rev.Stat' s28-105 [T3, !115]. In 2003, long after the ApPellant was sentenced, the Board changed the suitability standard for Second Degree Murder i-n its' policy to 1of8 010.0s6.039.21; be ,,in accordance with State Statute A3-192(9)." lT7, fl 361. Neb-Rev.Stat' sB3-192(g) saj-d: "The review schedule sha]-]. be based on court-imposed sentences or statutory minimum sentences, whichever is greater." IT3, !ltl17-2o]' connect the dots: The Board's latest policy uses the statutory increase in the minimum sentence for Second Degree Murder to continue to defer the Appellant to further reviews under s83-1,114(1)(b) because a 10 year minimum rather than the new statutory 20 year minimum as a suitabi].ity standard woul-d depreciate the seriousness of the offense or promote disrespect for the law. [T5, The effect of the Board's change in the suitability 1126]. standard is an ex post facto increase in the severity of the Appellant's sentence; Garner v' Jones' 529 u.s. 244 (2000); California v. Moral-es,514 U.S. 499 (1995)' It is this not the form of the statute(s) that determine whether an ex post facto violation has occurred; weaver v. Graham, 450 U.S. 24 (1981); Shepard v' Houston' EE'FECT, 289 Neb 399 (2O14). in error because The Court of Appeals analysis of the Ex Post Facto claim was it relied upon the ,,form,, of Neb.Rev.Stat. 583-1,114(1). The Court below said that there had been no changes to 583-1,1'14 since the commission of the Appellant,s offense -'p.2, Memorandum Opinionl. It was error to ignore the effect; ) sets out four categories for which the Board may deny parole. The statute does not set out what specific into facts are required to come to the conclusion that an offenderrs case fits below'] one of those categories. [See, the Due ProceSS Assignment of Error' *3' weaver, et aI. , supra. Neb.Rev.stat. s83-1 ,1 14(1 Parole second, the court of Appeals erred by concluding that the Board of opinion]' had statutory discretion to defer the Appelrant [p.4, Memorandum MEAN the Just because the Board MAY HAVE HAD valid reasons to defer DoES NOT 2of 8 Board relied upon such reasons. The factual alJ.egations are that the Board DID violate the ex post facto prohibition, and if that is the effect of the Board's discretion, the Court of Appeals conclusion does not defeat the factual allegations that should have been accepted as true; Eelert r/. Xlyer' et a1., supra. Even a non-lawyer can understand that the Board the petition and denied the factual aJ-J.egations; COULD HAVE answered BUT THEY DID NOT. Therefore' the Courts below erred because they failed to accept the Petition's factual allegations as true and require the Board to respond to them. 2. The Court of Appeals erred in their analysis of, and finding the Board dj-d not violate, the separations-of_,poruers provision of the Nebraska Constitution' The Court of Appeals argues that the Board has the power to defer parole because of the "conditions" the Legislature has created in statute [P.4, randum Ivlemo- Order]. Ho\^/ever, the Court never discusses whether it is a Judicial branch power to determine the severity of an offenderrs sentence, specifically under the standard of not depreciating the seriousness of the offense nor promoting disrespect for the law. Neither the District Court nor the Court of Appeals denied this was a Judicial branch po\'/er' But even if the power is reserved to the Judicial branch, the Legislature could stilI delegate it to the Executive branch Board of parore rF the Legislature provides sufficient (1967)' standards and an appeal process; Anderson v. Tiemann,182 Neb 393, 403 branch The Court of Appeals' failure to examine whether thls is a Judi'cial polver renders their analysis inadequate or, at best' incomplete' branch As in #1 above, the Petition alleges, as fact, that it is a Judicial power to impose a sentence [T2 , 11114-7] that does not depreciate the serious- ness of the offense or promote disrespect for the law LI2-3, tltll0-141' 3of 010. os6.039.21: Note how the Legislature has not only created a statutory procedure for the Executive branch to chaltenge such a sentence and that that process incJ.udes an appeal procedure lT2, !l 110-1'l l. Thus that delegation Eeets the requirements stated by this Court in Anderson v. Tiemann, supra. These allegations should have been accepted as true; Rafert, supra. Note also that the question left unanswered by the Court of Appeals, whether the Legislature's delegation was constitutionally adequate or not, was unnecessary during the greenholtz v. Inmates timeframe when the Board's procedures ,,[t]wo types of hearings initial were parole review healings and final parole hearings." Greenho:-tz v. Inmates, 442 IJ.S. 1 (1976). Everything was a "hearing" back then. 1t is only the Legislature's statutory change that altowed the Board to provide only unappealable ,'reviews" that raised this constitutional question IT9-10, 1152-55]. you canrt play word games to evade constitutional requirements. This constitutional question must be answered and the case should be remanded back to the Courts below. 3. The Court of APPeals in the current Parole erred in faiJ.ing to find a Due Process violation Board process of "reviews" for parole eJ.igibl-e offenders rather than "hearings." The Court of Appeals makes the same error the District Court below made' They both ignore the fact that Nebraska's parole procedures are NO LONGER theSameastheyonce\iIereinthetimeofGreenry,442U.S. 1 (1976). If you can,t see this then you also can't see that thj's is one of the major reasons behind the current prison overcrowding. In 1976 the U.S. Supreme Court found the procedures the Board was following to be adequate to meet the requirements of Due Process. To make such a 4of I found Nebraska's parole release statute, Neb' determination the court first Rev.Stat.S83-l,ll4,createdalibertyinterestwhichwasentitledtosome protection under the Due Process clause; Id. at 12 (..' a" parole provided in this statute is entitl* protection.) since sB3-1,1'14 has still the expectancy of some measure NoT been changed the same of constitutional protection must exist today. The parole procedures i-n 1976 were described in Greenholtz' The court found, I'Two types of hearings are conducted: initial parole review hearings at 4 (emphasis added). Thus' every parole "."rr"*.n prOcedure \das a HEARING in 1976. The Court also said: "However, since the every year Nebraska Parole Board provides at least one and often two hearings to each eligible inmate, we need only consider whether additional procedures and final parole *. by the court of Appeats are required under the standards set out in [citation ornitted]" rd. at 14 (emphasis added)' As hearings-' those parole procedures allowed offenders to appeal the decision of the Board' But as mandated procedures we sha1l show, without an appeal process, the lack of those additional result in Due Process violations. The Courts below failed to consider the procedure decisions consequences of a lack of a hearing had on those additionat made their by the Greenholtz Court. They recite to them without acknowledging dependence on the "hearings" finding' have changed Since the Greenhortz decision, Nebraskars parore procedures partly because of the overcrowding they caused' The 2003 change' r;ignificantly; replaced 2 years after the Tecumseh prison opened, to Neb.Rev'stat' sB3-1'111 ,,hearing,' upon parole etigibility with only "reviews'l' eliminating the offender's abilitytoappealfromanarbitrarydecisionbytheBoard.Whenta}kingabout 5of I L 010.0s6.039.21'1 the particular evidence in the inmate's file the Greenholtz court said, "The Board's decision is much like a sentencing judgers choice-- provided by many states-- to grant or deny probation following a judgment of guilt.-.-" fgj-, at 16. In Nebraska, such a probation decision has the opportunlty for an appeal' just as the parole procedures in place in 1976 did. That mattered in the Appellant's case and the Court of Appeals decision shows the difference. On p.2 of the Ivlemorandum Order, the Cour tof Appeals describes the facts the Board (only in a later letter the conclusion under 583-1,114(1)(d). I.e., upon records reflecting lf22l) used to reach the "recommendation was made based that the current offense occurred after a tengthy drug,/alcohol spree,'and stated Jacob "self-admitted to the use of marijuana' hashish, opium, mescaline, acid, speed, and cocaine." That IS a statement of the record evidence that led the Board to the opinion that 583-1,114(1)(d) should require the Appellant to complete drug treatment before his release on parole. ISi-nce then the Appellant was admitted into and successfully completed the RTC drug program at NSP.I Furthermore, the Board did not share their reason in the review itself; hence the }etter after the Board provided a written "Notice" tT18l using only the statutory boilerplate. However, when it comes to 583-1,114(1)(b), the Board's other excuse for denying parole, the Board offers no reason why the records 1ed them to the opJ-nion that "The nature,/circumstances of your offense(s) indicates that an early release would depreciate from the seriousness of your crime and promote disrespect for the law.,,tT18l Whose file are they looking at? Is it one crime but multiple offense(s)? Or one offense and multiple crimes? In the review' the Board only referred to the "opposition" to my parole' 6of B 010.0s6.039.21: This j-s significant in the Appellant's case. As I described in the Brief to the Court of Appeals, a codefendant, Ken Johnson, hung hiroself in the county jail before a trial could take place. I was offered and accepted a plea agreement to Second Degree Murder before that happened. A trial would have shown the public that it was Ken Johnson who fired the fatal shots. The police reports and the autopsies (which should be in the Board's files) would show that I have admitted and accept my guilt as an aider and abettor. Does the files before the Board have that information? There is no way of knowing. But I do know that the Board told me the reason I would be deferred was "oppositj-on" from the public. Does the Board know if the "opposition" is based on facts' or would the Appellant's file refute what that "oppositi-on" believes? The Board did not say, they merely repeated the statutory biolerplate language from $83-1 ,114 ( 1 ) (b) . Simply repeating the statutory language from SB3-1,114(1)(b) does not satisfy the standard stated in the Greenholtz decision: \''hat Tiie parole determination therefore must include consideration of the entire record shows up to the time of the sentence, including the gravity of the offense in the particular Id., at case ' 15. record under Greenholtzr "opposition'r contemporaneous to and in the sentencing so Must be used. But "oppos+tion" that comes only later requires a hearing that Appellant couldluse the file and record to refute (and educate) that the ,,opposition.,,How can wel*rro* if the "opposition" the Board referred to is may believe that anything but arbitrary afd/or erroneot.r=' The "oppositiontr truth' r am the principle actorltrr an" crimes and might change if they knew the TofB 0l- The lack of an appeal process would permit the Board's arbitrary and erroneous decision to go unquestioned. A process that cannot prevent arbitrary decisionmakJ-ng violates the touchstone of Due Process; Wofff t. ucOonneff' 418 U-S. 539, 558 (197A); Dent v. West Virginia, 129 U.S. 114,123 (1889). So while, in an environment that guaranteed an appeal, the Board would not have to state what evidence they relied upon to deny parole; Greenholtz, supra, at 16; an environment without an appeal process could permit arbitrary decisions by not subjecting them to appellate scrutiny. That is what has happened to the Appellant and the Courts below erred in finding otherwiseAs above, the petition made factual a].].egations that the Board violated the Appellant's Due Process right. The Board has failed to even deny that' This Court should grant further review, correct the procedures that should be followed under the facts in the Appellantrs case, and remand the case to the Court below. CONCLUSION The Court of Appeals' errors on these constitutional issues should be reviewed by this Court. The Appellant prays the Court will grant that review' David H. P.O. Box Lincoln 8of pro se -37 269 68542-2500 I 010. os6.039.21: CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of his Petiti-on for Further Review and the Memorandum Brief in Support vrere placed into the possession of Dept. of Corr. Svcs. staff for mailing by first to: James D. smith, Asst. A.G., on this lClL^ of Ir4arch , 2'l 'l class, postage prepaid U.S. mail 5 State capitol , Lincoln, NE 68509-8920 2017 . 010.0s6.039.21:

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