Nelson v. Ohio Adult Parole Authority et al
Filing
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Memorandum Opinion and Order: Petitioner's Application to Proceed In Forma Pauperis (ECF No. 2) is granted, the Petition (ECF No. 1) is denied and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Fu rther, I certify, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed.R.App.P. 22(b). Judge Jeffrey J. Helmick on 4/11/2016. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Carl A. Nelson,
Case No. 1:14-cv-01530
Petitioner
v.
MEMORANDUM OPINION
AND ORDER
Ohio Adult Parole Authority,
Respondent
BACKGROUND AND HISTORY
Pro se Petitioner Carl A. Nelson filed the above-captioned Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Petitioner is incarcerated in the Grafton Correctional Institution,
serving a sentence of 15 to 150 years for rape and kidnaping. In his Petition, he contends that he
was denied release on parole at his latest parole eligibility hearing due to the serious nature of his
offenses and the board’s determination that there is a substantial likelihood that he will reoffend if
released. As grounds for habeas relief, he asserts: (1) the Ohio Adult Parole Authority (“OAPA”)
deprived him of substantive due process and a protected property interest in a meaningful parole
hearing when the board used Ohio Administrative Code § 5120:1-1-07(A)(1) and (2) to deny him
parole because it conflicts with Ohio Revised Code § 2967.03; and (2) the OAPA’s use of Ohio
Administrative Code § 5120:1-1-07(A)(1) and (2) to deny him parole violated the separation of
powers doctrine. For the reasons set forth below, the Petition is denied and this action is dismissed.
Petitioner was convicted of the kidnaping and rape of a juvenile female in 1978. While on
parole from that sentence in July 1985, he and an accomplice forced another fourteen year old girl
into their vehicle and transported her to the accomplice’s residence where they both forcibly raped
her numerous times. He was convicted of four counts of rape with specifications and one count of
kidnaping on October 21, 1987. He is currently serving a sentence of 15 to 150 years.
Petitioner received his first parole hearing in August 1997, and was given a ten year
continuance. Thereafter, at subsequent parole hearings, he was denied release on parole due to the
serious nature of his crime and the Board’s determination that he posed a high risk for reoffending if
released. In support of this determination, the Board cited the fact that he was on parole for a
similar offense when he committed his current offenses. His last hearing was held on September 26,
2013.
Petitioner has now filed this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254
seeking a new parole hearing in which the Board is prohibited from considering the likelihood that
he will engage in future criminal conduct if he is released or the danger he may pose to public safety
due to the serious nature of his crimes. He contends that these factors found in Ohio Admin. Code
§5120:1-1-07 do not conform to the legislative intent of Ohio Revised Code § 2967.03 and deny him
substantive due process. Ohio Revised Code § 2967.03 states in pertinent part:
The adult parole authority... may investigate and examine...prisoners
confined in state correctional institutions concerning their conduct in
the institutions, their mental and moral qualities and characteristics,
their knowledge of a trade or profession, their former means of
livelihood, their family relationships and any other matters affecting
their fitness to be at liberty without being a threat to society. . . .
The authority...may grant a parole...if in its judgment there is
reasonable ground to believe that ...paroling the prisoner would
further the interests of justice and be consistent with the welfare and
security of society.
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He claims that while the statute permits the OAPA to consider institutional conduct, mental
and moral qualities, knowledge of a trade or profession, former means of livelihood, and family
relationships, it does not expressly permit the board to consider the seriousness of his offense as a
reflection of his dangerousness to society nor his likelihood of reoffending due to his criminal
history. He acknowledges that the statute permits consideration of “any other matters affecting [his]
fitness to be at liberty without being a threat to society,” but argues his likelihood of reoffending and
the serious nature of his crime do not fall within this general category when the doctrine of ejusdem
generis is applied. He claims that using the factors listed in Ohio Admin. Code §5120:1-1-07 to deny
him parole violates his right to substantive due process.
In addition, Petitioner asserts the OAPA’s use of Ohio Admin. Code §5120:1-1-07 violates
the separation of powers doctrine. He contends that the serious nature of the crime is a factor to be
considered under Ohio Revised Code § 2929.23 (factors to consider in felony sentencing) and
therefore cannot be considered by the parole board. He claims consideration of the nature of the
offense is a judicial function, not the function of an administrative agency. He asserts this violates
the doctrine of separation of powers.
Finally, Petitioner contends the actions of the parole board in denying him parole “shocks
the conscience” of any person. He claims the Substantive Due Process Clause protects him from
arbitrary decisions by the parole board based on the seriousness of his offenses and his likelihood to
reoffend if released.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which amended 28
U.S.C. § 2254, was signed into law on April 24, 1996, and applies to habeas corpus petitions filed
after that effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see Woodford v. Garceau, 538 U.S.
202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999). The AEDPA was enacted “to
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reduce delays in the execution of state and federal criminal sentences, and ‘to further the principles
of comity, finality, and federalism.’” Woodford, 538 U.S. at 206 (citing Williams v. Taylor, 529 U.S. 362,
436 (2000)). Consistent with this goal, when reviewing an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct. Wilkins v. Timmerman-Cooper, 512 F.3d 768,
774-76 (6th Cir. 2008). The Petitioner has the burden of rebutting the presumption of correctness
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A federal court, therefore, may not grant
habeas relief on any claim that was adjudicated on the merits in any state court unless the
adjudication of the claim either: “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court of
the United States; or (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);
Wilkins, 512 F.3d 768, 774 -76 (6th Cir. 2008).
A decision is contrary to clearly established law under §2254(d)(1) when it is “diametrically
different, opposite in character or nature, or mutually opposed” to federal law as determined by the
Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 405 (2000). In order to have
an “unreasonable application of ... clearly established Federal law,” the state-court decision must be
“objectively unreasonable,” not merely erroneous or incorrect. Id. at 409. Furthermore, it must be
contrary to holdings of the Supreme Court, as opposed to dicta. Id. at 415.
A state court’s determination of fact will be unreasonable under §2254(d)(2) only if it
represents a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). In other words, a
state court's determination of facts is unreasonable if its finding conflict with clear and convincing
evidence to the contrary. Id. “This standard requires the federal courts to give considerable
deference to state-court decisions.” Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir. 2007). AEDPA
essentially requires federal courts to leave a state court judgment alone unless the judgment in place
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is “based on an error grave enough to be called ‘unreasonable.’” Herbert v. Billy, 160 F.3d 1131, 1135
(6th Cir. 1998).
DISCUSSION
Despite Petitioner’s attempts to characterize his first ground for relief as a denial of
substantive due process, it is in essence a challenge to the State of Ohio’s interpretation of its
statutes and its administrative regulations. Generally, a federal habeas court sitting in review of a
state-court judgment should not second guess a state court’s decision concerning matters of state
law. Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001); Gall v. Parker, 231 F.3d 265, 303 (6th Cir.
2000) (“Principles of comity and finality equally command that a habeas court cannot revisit a state
court’s interpretation of state law, and in particular, instruct that a habeas court accept the
interpretation of state law by the highest state court on a petitioner’s direct appeal.”). A claim based
solely on an error of state law is not redressable through the federal habeas process. Pulley v. Harris,
465 U.S. 37, 41 (1984); Greer, 264 F.3d at 675; Hutchison v. Marshall, 744 F.2d 44, 46-47 (6th Cir.
1984). It is especially inappropriate for a federal habeas court to set aside a state court’s ruling on an
issue of state law where, as in the present situation, Ohio’s appellate courts have already found
Petitioner’s claim that the parole consideration factors found in Ohio Admin. Code §5120:1-1-07 do
not conform to the legislative intent of Ohio Revised Code § 2967.03 to be meritless. See Nelson v.
Mohr, No. 13AP-130, 2013 WL 5603588 (Ohio App. 10 Dist. Oct. 10, 2013).
Although this principle does not prohibit federal habeas relief where a state court’s error in
interpreting or applying its own law has rendered a decision “so egregious that it results in a denial
of fundamental fairness” as to have deprived Petitioner of substantive due process in violation of
the United States Constitution, see Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); Serra v. Michigan
Dep’t of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993), this is not our situation here. Substantive due
process serves the goal of preventing “governmental power from being used for purposes of
oppression,” regardless of the fairness of the procedures used. See Daniels v. Williams, 474 U.S. 327,
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331 (1986). Substantive due process serves as a check on legislation that infringes on fundamental
rights otherwise not explicitly protected by the Bill of Rights; or as a check on official misconduct
which infringes on a “fundamental right;” or as a limitation on official misconduct, which although
not infringing on a fundamental right, is so literally “shocking to the conscience,” as to rise to the
level of a constitutional violation. Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996). Where the
government action does not deprive Petitioner of a particular constitutional guarantee or shock the
conscience, that action survives substantive due process scrutiny as long as it is rationally related to a
legitimate state interest and thus not arbitrary or capricious. See, e.g., Reno v. Flores, 507 U.S. 292, 30105 (1993); Valot v. Southeast Local School Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997).
As an initial matter, prisoners have no inherent constitutional right to be conditionally
released before the expiration of a valid sentence. Greenholtz v. Inmates of the Nebraska Penal and
Correctional Complex, 442 U.S. 1, 7 (1979). The Ohio parole statutes do not create a protected liberty
interest for due process purposes and therefore the decision to grant or deny parole is entirely within
the discretion of the Ohio Adult Parole Authority. Jago v. Van Curen, 454 U.S. 14, 20 (1981). Until
his maximum sentence expires, Petitioner has no liberty or property interest in receiving parole, and
denying him parole does not infringe on a fundamental right.
Furthermore, denying Petitioner release on parole due to his prior criminal history and the
serious nature of his offenses does not shock the conscience. A person asserting a substantive due
process claim “faces a virtually insurmountable uphill struggle” because he must show that “the
government conduct in question was so reprehensible as to ‘shock the conscience’ of the court.”
Rimmer–Bey v. Brown, 62 F.3d 789, 791 n. 4 (6th Cir. 1995) (citing Rochin v. California, 342 U.S. 165
(1952)); Mertik v. Blalock, 983 F.2d 1353, 1367-68 (6th Cir. 1993); see also Hampton v. Hobbs, 106 F.3d
1281, 1288 (6th Cir. 1997). In this case, Petitioner was on parole for kidnaping and raping a juvenile
female when he and an accomplice kidnaped and raped another juvenile female. Denying him
release on parole in consideration of the serious nature of his offenses and his track record of
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recidivism does not shock the conscience and does not support a finding that Petitioner was denied
substantive due process.
Moreover, Petitioner has not shown that the state acted arbitrarily in considering factors not
specifically enumerated in the statute. Although substantive due process protects inmates from
arbitrary denials of parole based on impermissible criteria such as race, political beliefs or frivolous
factors, such as eye color, even where a prisoner may not have a protected liberty interest, Petitioner
does not present any such allegations here. Mayrides v. Chaudhry, No. 01-3369, 2002 WL 1359366, at
*2 (6th Cir. June 20, 2002); Block v. Potter, 631 F.2d 233, 236 n. 2 (3d Cir.1980). To the contrary,
criminal history and the seriousness of the offenses of conviction are rationally related to the
legitimate government interest in protecting the public. See Mayrides v. Chaudhry, No. 01-3369, 2002
WL 1359366, at *2 (6th Cir. June 20, 2002).
Petitioner failed to state a claim for denial of substantive due process. His claims are based
solely on the state’s interpretation of its own laws and are not cognizable in habeas corpus.
Finally, Petitioner asserts that the OAPA violated the doctrine of separation of powers
between the judicial branch and the executive branch in the State of Ohio when it considered the
seriousness of his offenses. This claim is not cognizable for purposes of federal habeas corpus
review. The separation of powers between a state trial judge and state parole board members is a
matter of state law. See Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000). A federal court may not
grant habeas relief based upon “a perceived error of state law.” Id.; see Whalen v. United States, 445
U.S. 684, 689 n. 4 (1980) (“the doctrine of separation of powers embodied in the Federal
Constitution is not mandatory on the States”); Austin, 213 F.3d 298, 302 (6th Cir. 2000) (holding
that separation of powers argument regarding length of sentence was not cognizable on federal
habeas review).
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CONCLUSION
For all the foregoing reasons, Petitioner’s Application to Proceed In Forma Pauperis (ECF No.
2) is granted, the Petition (ECF No. 1) is denied and this action is dismissed pursuant to Rule 4 of
the Rules Governing Section 2254 Cases. Further, I certify, pursuant to 28 U.S.C. §1915(a)(3), that
an appeal from this decision could not be taken in good faith, and that there is no basis upon which
to issue a certificate of appealability. 28 U.S.C. § 2253; Fed.R.App.P. 22(b).
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
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