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)

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
[e-mail]

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

010.056.039.21:

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
010.056.039.21-:

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-0.055.039.2L:

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: