Swihart v. Richard et al

Filing 12

REPORT AND RECOMMENDATION AND ORDER - Petitioner's Motion for Discovery (Doc. 9 ) is DENIED, and the Magistrate Judge RECOMMENDS that 1 Petition for Writ of Habeas Corpus be DISMISSED. Objections to R&R due by 3/21/2017. Signed by Magistrate Judge Kimberly A. Jolson on 3/7/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL SWIHART,
Case No. 2:16-cv-158
Judge George C. Smith
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
RHONDA R. RICHARD, et al.,
Respondents.

REPORT AND RECOMMENDATION
AND ORDER
Petitioner, a state prisoner, brings the instant Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the Petition (Doc. 1), Respondent’s
Return of Writ (Doc. 5), Petitioner’s Reply (Doc. 8), and the exhibits of the parties. Also before
the Court is Petitioner’s Motion for Discovery (Doc. 9). For the following reasons, Petitioner’s
Motion for Discovery is DENIED, and the Magistrate Judge RECOMMENDS that this action
be DISMISSED.
I.

FACTS AND PROCEDURAL HISTORY
This case involves Petitioner’s underlying 1978 conviction in the Medina County Court

of Common Pleas on one count of aggravated murder, two counts of murder, and one count of
aggravated arson. (Doc. 1 at 1). Although Petitioner was sentenced to death initially, his death
sentence was commuted to life with the possibility of parole after fifteen years. (See Doc. 5-1,
PAGEID #: 821–22 (modifying Petitioner’s death sentence to life imprisonment based on Ohio
v. Lockett)).

In March 1992, Petitioner sought to participate in the Furlough Program, requesting an
appearance before the Parole Board for consideration. (Id., PAGEID #: 848). Following a
hearing, Petitioner was denied furlough. (Id., PAGEID #: 850, 853). Then, consistent with his
sentence, Petitioner had his first parole hearing after he had served fifteen years. The Parole
Board determined that Petitioner was unsuitable for parole due to the serious nature of the crime.
(Id., PAGEID #: 872).
Petitioner’s next parole hearing was scheduled for 2002. (Id.). Prior to his 2002 hearing,
however, the Ohio General Assembly implemented new parole guidelines in 1998. The new
guidelines included a determination that a prisoner with Petitioner’s characteristics should serve
300 months, or 25 years, before being considered for parole. See Swihart v. Wilkinson, 209 F.
App’x 456, 457 (6th Cir. 2006). At Petitioner’s next parole hearing, the Parole Board noted that
Petitioner had served 299 months and determined that he was unsuitable for parole. (Doc. 5-1,
PAGEID #: 884–86). More specifically, the hearing panel voted “to continue offender into his
guideline range of 300 months-life, based on the offender’s offense behavior involving the death
of his mother, father, and two brothers, and in deference to the court’s sentence of death which
was later commuted to life.” (Id., PAGEID #: 886). Petitioner’s next parole hearing was
scheduled for 2007. (Id.).
A.

Mr. Swihart’s 42 U.S.C. § 1983 Case: Swihart v. Wilkinson, Case No.
C2-04-893

In 2004, Petitioner filed a pro se complaint in this Court pursuant to 42 U.S.C. § 1983
against Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Correction
(the “ODRC”); Margarette T. Ghee, former Chairperson of the Ohio Adult Parole Authority
(“OAPA”); Gary Croft, then-current Chairperson of the OAPA; and all former and current
members of the OAPA from 1990 forward who allegedly violated his substantive and procedural
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due process rights by retroactively applying parole eligibility guidelines which denied him parole
or furlough eligibility. (Swihart v. Wilkinson, No. C2-04-893, Doc. 1). Petitioner’s claims are
summarized as follows:
Swihart asserted that the OAPA has expressed its intention never to grant him
parole due to the fact he was originally sentenced to death. He argued that such a
blanket denial violated the Privileges and Immunities Clause, the Eighth
Amendment’s prohibition of cruel and unusual punishment, and due process. In
addition, Swihart alleged that amendments to both the parole guidelines and an
administrative regulation authorizing prisoner furloughs were applied to his
sentence in violation of the Ex Post Facto Clause. He sought declaratory and
injunctive relief, as well as monetary damages.
Swihart, 209 F. App’x at 457–58. Thus, Petitioner claimed that the denial of parole and furlough
violated his due process rights as well as other constitutional rights because his hearings were
meaningless. See id.
Magistrate Judge Mark R. Abel determined, inter alia, that the OAPA acted within its
discretion. (Case No. C2-04-893, Doc. 18 at 8). Magistrate Judge Abel stated that, although
Petitioner questioned the OAPA’s reliance on his original sentence of death, “due process does
not forbid the board from considering the death penalty originally imposed by a three-judge
panel as a gauge to the serious nature of the offenses committed.” (Id.). Magistrate Judge Abel
noted that Petitioner confessed in writing to killing his parents and two brothers with a baseball
bat, lighting the house on fire, and fleeing the scene. (Id., n.3). Thus, Magistrate Judge Abel
explained that Petitioner’s conduct did not cause the Court to conclude the death penalty was
unwarranted; instead, the death penalty was set aside based on the United States Supreme
Court’s determination that Ohio’s death penalty statute was unconstitutional. (Id. at 8 (citing
Lockett, 438 U.S. at 586)). Magistrate Judge Abel recommended that Petitioner’s due process
claims, as well as his other claims, be dismissed. (Id. at 10).

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Petitioner objected to Magistrate Judge Abel’s Report and Recommendation. (Case No.
C2-04-893, Doc. 23). District Judge George C. Smith overruled his objection, finding that the
OAPA properly considered that Petitioner’s crime involved the death of family and his original
sentence of the death penalty, which was commuted later to life in prison. (Case No. C2-04-893,
Doc. 27 at 7). Thus, Judge Smith agreed with Magistrate Judge Abel’s determination that the
OAPA considered Petitioner individually and exercised its discretion in rendering its decision.
(Id.). In 2006, the United States Court of Appeals for the Sixth Circuit affirmed Judge Smith’s
decision. See Swihart, 209 F. App’x at 460.
B.

Mr. Swihart’s Third and Fourth Parole Hearings

Meanwhile, in 2005, Petitioner received consideration by the Parole Board based upon
his status as a Category 1 inmate under Ankrom v. Hageman, Case No. 01CVH02-1563 (Franklin
Cty.). (Doc. 1-2, PAGEID #: 249–51 (noting that Petitioner received an “Ankrom hearing based
upon the fact that [he] had served less time at the last hearing than the minimum of the suggested
guideline range”)). Again, the Parole Board continued the hearing until 2007. (Id., PAGEID #:
251). In the decision, the Hearing Officer noted that Petitioner “was given mercy by the
Supreme Court decision to commute the Death Sentence” and it was his position that Petitioner
“remain incarcerated for his entire natural life for this most heinous crime.” (Id.).
In 2007, Petitioner again was denied parole based on the severity of his crimes. (Doc. 53, PAGEID #: 1821–23) (stating that “to release [Petitioner] at this juncture would demean the
seriousness of these crimes”). Petitioner’s next hearing was set for 2012. (Id., PAGEID #:
1823).

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C.

Mr. Swihart’s Franklin County Court of Common Pleas Case:
Swihart v. Ohio Adult Parole Authority, et al., Case No. 07 CVH 022229

Petitioner filed a complaint in the Franklin County Court of Pleas on February 15, 2007,
alleging, inter alia, that the Defendants had, in effect, unilaterally modified his sentence from 15
years-to-life to life without the possibility of parole by conducting “sham” parole hearings in
which Defendants denied him meaningful consideration. (Swihart v. Chairman/Chairperson of
the Ohio Adult Parole Auth., et al., Case No. 07 CVH 02-2229). In a decision issued on
February 28, 2013, Franklin County Court of Common Pleas Judge Timothy S. Horton
concluded that Petitioner received meaningful consideration at his 2007 parole hearing, which
rendered his claim concerning the 2005 proceedings moot. (Swihart, Case No. 07 CVH 02-2229,
Feb. 28, 2013 decision at 4–10).

Following an appeal and numerous rounds of summary

judgment briefing, the Court granted the Defendants’ third motion for summary judgment and
dismissed Petitioner’s claims with prejudice. (Id., Oct. 28, 2013 decision at 5).
D.

Mr. Swihart’s Fifth Parole Hearing

Petitioner had his fifth parole hearing in 2012. Although one Parole Board member
found Petitioner suitable for release (Doc. 5-3, PAGEID #: 2070), the majority of the Parole
Board found “[t]here is substantial reason to believe that due to the serious nature of the crime,
the release of the inmate into society would create undue risk to public safety, or that due to the
serious nature of the crime, the release of the inmate would not further the interest of justice or
be consistent with the welfare and security of society.” (Id., PAGEID #: 1891). The majority
likewise offered the following rationale:
Inmate’s case is aggravated by the case-specific factors of violence, multiple
deaths, the ages of the victims, and trying to cover-up the crimes by arson. The
inmate has completed some relevant institutional programs, vocational
programming, earned a college degree and he has engaged in spiritual
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programming with his pastor for the past 30+ years. He also has excellent
institutional conduct and community and family support. But, the aggravating
factors in this case lead the Board to conclude that release would demean the
seriousness of the offenses and not further the interest of justice. After weighing
relevant factors, the Board does not consider the Inmate suitable for release at this
time and assesses a five year continuance.
Thus, Petitioner’s next parole hearing will occur in August 2017. (Id.).
E.

Mr. Swihart’s State Court Appeal:
Authority, et al., Case No. 13AP-993

Swihart v. Ohio Adult Parole

Petitioner appealed Judge Horton’s dismissal of his state court case. See Swihart v. Ohio
Adult Parole Auth., et al., No. 13AP-993, 2014 WL 3740418 (Ohio Ct. App. July 29, 2014). The
Court of Appeals affirmed, finding that “the OAPA’s decision is discretionary, and the OAPA
was not required to find appellant suitable for release on parole based on allegedly positive
factors where the record contains sufficient reasons weighing against his release.” Id. at *7–10.
The Supreme Court of Ohio declined review of the decision. Swihart v. Ohio Adult Parole
Auth., et al., 141 Ohio St.3d 1473, 1473 (2015).
F.

The Instant Case

On February 18, 2016, Petitioner filed the instant Petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, asserting one ground for relief—that “[t]he Ohio Department of
Rehabilitation and Correction and Ohio Adult Parole Authority have denied Mr. Swihart due
process by failing to meaningfully consider him for parole, furlough, or lower security status.”
(Doc. 1 at 5). More specifically, he asserts that the ODRC and OAPA have unconstitutionally
repeatedly and arbitrarily denied him meaningful consideration for release on parole, furlough, or
lower security status based on improper deference to his initial and unconstitutional death
sentence and inaccurate records regarding his ineligibility for release on parole. (Id. at 5; Doc. 11, PAGEID #: 17–18; Doc. 8 at 1–2). He complains that the ODRC and OAPA provided him

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with allegedly meaningful parole hearings in 2007 only after he filed a complaint in the state trial
court, and now that his complaint has been dismissed, they “are free to resume the sham hearings
they conducted for more than a decade.” (Doc. 1-1, PAGEID #: 28). Petitioner seeks to conduct
discovery and requests an evidentiary hearing. (See Doc. 9).
In response, Respondent suggests Petitioner’s claim is untimely but asserts that it
“appears to be based on one underlying contention, that he should have been given different
considerations during his parole hearings.” (Doc. 5 at 10). Thus, “[r]ather than engage in a
protracted and convoluted statute of limitations analysis involving Swihart’s lengthy state
proceedings and multiple parole hearings, Respondent, without waiving his statute of limitations
defense, submits that Swihart raises non-cognizable claims.” (Id.). Respondent likewise argues
Petitioner’s claims are without merit. (Id. at 12–13).
II.

WHETHER PETITIONER’S CLAIM IS COGNIZABLE IN FEDERAL HABEAS
CORPUS
Petitioner points to a single case, Terrell v. United States, 564 F.3d 442 (6th Cir. 2009),

to demonstrate that his claim is cognizable in habeas corpus. (Doc. 8 at 5). In Terrell, a federal
prisoner “commenced his claim by petitioning the district court to enter an order, pursuant to 28
U.S.C. § 2241, to require the [United States Parole] Commission to give him a live in-person
parole hearing,” as opposed to a videoconference. Id. at 445. Mr. Terrell did not contend that
granting him an in-person parole hearing necessarily would entitle him to early release from
custody. Id. The Sixth Circuit considered its jurisdiction to entertain the petition sua sponte.
Relying on Wright v. U.S. Board of Parole, 557 F.2d 74 (6th Cir. 1977), a case also involving a
federal prisoner, the Sixth Circuit found that Mr. Terrell’s challenge “was cognizable under
§ 2241 as a challenge to the execution of his sentence.” Id. at 446.

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The instant case is distinguishable. As an initial matter, Petitioner is a state, not a federal,
prisoner. Additionally, he brought this action under § 2254, not § 2241. Thus, the Court
disagrees with Petitioner’s contention that Terrell “ends the matter” and unequivocally
demonstrates that his “use of habeas in this case is proper.” (Doc. 8 at 5).
Beginning with Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court “focused
on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when
they seek to invalidate the duration of their confinement—either directly through an injunction
compelling speedier release or indirectly through a judicial determination that necessarily
implies the unlawfulness of the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)
(emphasis in original). Thus, a prisoner was prohibited from seeking relief under § 1983 where
the result would “necessarily imply the invalidity of [the] conviction or sentence.” Heck v.
Humphey, 512 U.S. 477, 487 (1994). In this way, the Supreme Court “developed an exception
from § 1983’s otherwise broad scope for actions that lie ‘within the core of habeas corpus,’ i.e.,
where a state prisoner requests present or future release.” Dotson, 544 U.S. at 74.
However, in Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court clarified that
§ 1983 remains available for procedural challenges where success “would not necessarily spell
immediate or speedier release for the prisoner.” Id. (emphasis in original). Stated differently, a
prisoner is prohibited from using § 1983 to obtain relief only where success “would necessarily
demonstrate the invalidity of confinement or its duration.” Id. at 74–75 (emphasis in original)
(citing Wolff v. McDonnell, 418 U.S. 539 (1974) and Heck, 512 U.S. at 477). Consequently,
following Dotson, a § 1983 case attacking parole proceedings could not be dismissed on the
grounds that habeas corpus is the sole remedy for such claims. See id.

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Based on that precedent, Petitioner had two potential claims available to him when
seeking relief for an alleged constitutional violation: he could either file a § 1983 case that
would not necessarily result in his immediate or speedier release or seek a writ of habeas corpus
under § 2254 that would necessarily demonstrate the invalidity of his confinement or its
duration. Here, Petitioner has done both. As stated supra, United States District Judge George
C. Smith, the same District Judge assigned to this case, has already reviewed Petitioner’s § 1983
claim and dismissed it on the merits, a decision affirmed by the Sixth Circuit. (See Case No. C204-893, Doc. 27 at 7 (agreeing that the OAPA considered Petitioner individually and acted
within its discretion); Swihart, 209 F. App’x at 460). Therefore, despite having had his day in
Court concerning the alleged denial of a meaningful parole hearing, Petitioner wishes to begin
anew by bringing his claim in habeas corpus, not § 1983.
With a lack of clarity in the relevant case law, Petitioner may be able to do so. See, e.g.,
Parsons v. Wilkinson, No. 2:05-cv-527, 2008 WL 816710, at *5 (S.D. Ohio Mar. 26, 2008)
(noting that the § 1983 plaintiff had “already challenged the state parole procedures as applied to
him in a petition for habeas corpus under 28 U.S.C. § 2254 and that petition was decided on the
merits”). However, there is a conceptual difficulty posed by permitting parole-related claims to
proceed both in § 1983 and in habeas corpus—it grants claimants a “re-do” by allowing them to
re-characterize their claim if they fail on the merits in their first case.
For example, had Petitioner initially brought a habeas claim, rather than a § 1983 claim,
in Swihart v. Wilkinson, Case No. C2-04-893, this case would violate 28 U.S.C. § 2244(b)’s
prohibition on “second or successive” petitions. See 28 U.S.C. § 2241(b)(1) (providing that a
“claim presented in a second or successive habeas corpus application under section 2254 that
was presented in a prior application shall be dismissed”). Alternatively, had Petitioner attempted

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to reassert here the § 1983 claim raised in Swihart v. Wilkinson, Case No. C2-04-893, it would
have been barred by res judicata if affirmatively raised. See, e.g., Golden v. C.I.R., 548 F.3d
487, 494 (6th Cir. 2008) (setting forth the elements of res judicata). Consequently, to allow
Petitioner to proceed with this habeas claim after unsuccessfully bringing a § 1983 claim rewards
inartful pleading or extremely artful pleading by allowing Petitioner to have the same case heard
twice. The Court is reluctant to conclude that outcome was intended by the relevant case law.
Justice Kennedy’s dissenting opinion in Dotson highlighted the conceptual difficulties
posed by allowing a prisoner to proceed in habeas or under § 1983. Dotson, 544 U.S. at 88.
Specifically, he stated that the majority’s “ruling blurs the Preiser formulation” and would
“allow numerous § 1983 challenges to state parole system determinations that do relate solely to
the duration of . . . confinement.” Id. at 92. Justice Kennedy observed:
The primary reason offered for the Court’s holding is that an order entitling a
prisoner to a new parole proceeding might not result in his early release. That
reason, however, applies with equal logic and force to a sentencing proceeding.
And since it is elementary that habeas is the appropriate remedy for challenging a
sentence, something must be quite wrong with the Court’s own first premise.
Everyone knows that when a prisoner succeeds in a habeas action and obtains a
new sentencing hearing, the sentence may or may not be reduced. The sentence
can end up being just the same, or perhaps longer. The prisoner’s early release is
by no means assured simply because the first sentence was found unlawful. Yet
no one would say that an attack on judicial sentencing proceedings following
conviction may be raised through an action under § 1983. The inconsistency in
the Court’s treatment of sentencing proceedings and parole proceedings is thus
difficult to justify. It is, furthermore, in tension with our precedents.
Id. at 88.
For the reasons discussed, this Court questions the propriety of granting Petitioner an
opportunity to have his claim heard for a second time in this Court. Indeed, the very nature of
habeas and its prohibition on second or successive petitions is designed to allow prisoners
challenging the legality of their conviction or sentence just “one bite at the apple.” However,
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until this issue is resolved clearly, the Court will accept Petitioner’s assertion the standards of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) govern this § 2254 case and will
consider the merits of Petitioner’s claim.
III.

EXHAUSTION OF STATE COURT REMEDIES
Although Petitioner was able to proceed directly to this Court to bring his § 1983 claim,

his current § 2254 petition requires exhaustion of state court remedies prior to bringing this
action. Stated simply, this Court cannot grant Petitioner habeas corpus relief unless the Ohio
Supreme Court first had an opportunity to rule on the federal claim he raises here. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (noting that “the exhaustion doctrine is designed to give the
state courts a full and fair opportunity to resolve federal constitutional claims before those claims
are presented to the federal courts”). If a habeas petitioner has the right under state law to raise a
claim by any available procedure, he has not exhausted that claim. 28 U.S.C. § 2254(b), (c).
In his state court case, Petitioner asserted only alleged violations of state law. (Doc. 112, PAGEID #: 217–228); Swihart, 2014 WL 3740418, at *1. Because the state courts did not
have an opportunity to resolve the federal constitutional claim Petitioner raises here, his claim
does not warrant relief and is unexhausted. 28 U.S.C. § 2254(b), (c). Further, even if Petitioner
had raised a federal due process claim that the Ohio Supreme Court had an opportunity to
review, his pro se complaint in the Franklin County Court of Common Pleas challenged only his
1992, 2002, and 2005 Parole Board hearings, and did not raise a claim concerning his 2007 and
2012 Parole Board hearings. Indeed Petitioner could not have raised those claims in that action
because the 2007 and 2012 Parole Board hearings occurred after he had filed the case. Thus,
Petitioner could not have exhausted those claims.

But see supra page 5 (concluding that

Petitioner received meaningful consideration at his 2007 parole hearing) (citing Swihart, Case

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No. 07 CVH 02-2229, Feb. 28, 2013 decision at 4–10). Based on the foregoing, Petitioner’s
claim is subject to dismissal as unexhausted.
Ordinarily, a habeas case that presents an unexhausted claim should be dismissed.
However, “[w]here, ‘the federal constitutional claim [is] plainly meritless and it would be a
waste of time and judicial resources to require exhaustion,’ exhaustion may be excused.” Scott
Hansen v. Coleman, No. 3:16-CV-2147, 2016 WL 5940922, at *4 (N.D. Ohio Oct. 13, 2016)
(quoting Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991)). Because Petitioner’s claim plainly
lacks merit, this Court will address the merits of Petitioner’s claim.
IV.

THE MERITS
Finally, Petitioner’s claim fails on the merits. Petitioner asserts that the Parole Board

deprived him of due process in several ways. First, he argues “that the ODRC and OAPA have
repeatedly, arbitrarily and deliberately denied him meaningful consideration for parole, ignoring the
sentence that [he] actually received—which made him eligible for parole after fifteen (15) years—
and functionally imposing their own sentence of life without the possibility of parole.” (Doc. 8 at 1).
Second, Petitioner claims that OAPA improperly relied on false information, stating “it appears

that the OAPA’s determinations have been reliant on an entry in [his] file stating that his
sentence was ‘life without parole,’ which—at best—the OAPA had reason to know was
inaccurate.” (Id.). Third, and finally, Petitioner contends that the OAPA’s decisions have been
improperly based on his “original sentence of death—which was later held unconstitutional, and
therefore cannot be lawfully considered or ‘deferred to’ for any purpose.” (Id. at 1–2).
A.

Consideration of Petitioner’s Sentence

Petitioner’s first and third arguments go hand in hand, so the Court addresses them
together. “Since Ohio has a discretionary parole system, there is no attendant due process right
in the grant of parole, and the state’s statutory and regulatory guidelines for parole, without
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more, do not change this calculus.” Kinney v. Mohr, No. 2:13-cv-1229, 2015 WL 1197812, at *4
(S.D. Ohio Mar. 16, 2015). Thus, while the Parole Board must afford an inmate meaningful
consideration, it also maintains discretion to render its decision. See Harris v. Wilson, No. 1:06
CV 2342, 2006 WL 3803410, at *3 (N.D. Ohio Dec. 26, 2006).
Ohio Administrative Code 5120:1-1-07(A) states that the Parole Board may deny release
if, inter alia:
(1) There is substantial reason to believe that the inmate will engage in further
criminal conduct, or that the inmate will not conform to such conditions of
release as may be established under rule 5120:1-1-12 of the Administrative
Code;
(2) There is substantial reason to believe that due to the serious nature of the
crime, the release of the inmate into society would create undue risk to public
safety, or that due to the serious nature of the crime, the release of the inmate
would not further the interest of justice nor be consistent with the welfare and
security of society.
Id.

Further, Ohio Administrative Code 5120:1-1-07(B) sets forth factors the Parole Board

considers when deciding whether to release an inmate. In addition to seventeen specific factors,
the Parole Board also considers “[a]ny other factors which the board determines to be relevant,
except for documents related to the filing of a grievance under rule 5120-9-31 of the
Administrative Code.” Ohio Admin. Code 5120:1-1-07(B)(18). However, Ohio Administrative
Code 5120:1-1-07(C) does not require the decision to address expressly the factors.
Petitioner’s arguments are not new. As set forth supra, Petitioner argued previously in
this Court, the Sixth Circuit, the Franklin County Court of Common Pleas, and the Ohio Court of
Appeals that he had been denied meaningful consideration because the Parole Board did not
consider his actual sentence. See, e.g., Swihart, 209 F. App’x at 457–58 (claiming a § 1983
violation because “the OAPA has expressed its intention never to grant him parole due to the fact
he was originally sentenced to death”); Swihart v. Chairman/Chairperson of the Ohio Adult
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Parole Auth., et al., Case No. 07 CVH 02-2229) (asserting that Defendants had, in effect,
unilaterally modified his sentence from 15 years-to-life to life without the possibility of parole by
conducting “sham” parole hearings in which Defendants denied him meaningful consideration).
However, Petitioner’s claims failed based on the Parole Board’s use of its discretion to consider
the seriousness of the offense, along with all of the relevant factors. See supra.
Those decisions have support in the record.

For instance, in Swihart v.

Chairman/Chairperson of the Ohio Adult Parole Auth., et al., Case No. 07 CVH 02-2229,
Defendants relied on the affidavit of Chair of the Ohio Parole Board Cynthia Mausser. (Doc. 52, PAGEID #: 1411–14). In her affidavit, Ms. Mausser acknowledged that Petitioner became
eligible for parole in 1992 and has remained eligible since. (Id., PAGEID #: 1412). Further, Ms.
Mausser’s review of the record indicated that the mandatory factors in Ohio Administrative Code
5120:1-1-07(B) were considered at Petitioner’s hearings and that the Parole Board’s decisions
were based on the serious nature of his offenses and the determination that he was not suitable
for release. (Id., PAGEID #: 1412–14). And even if, as Petitioner contends, the Parole Board
considered his original sentence of death, doing so to consider the severity of the crime does not
violate due process. (See Doc. 5-1, PAGEID #: 1014 in Swihart v. Wilkinson, No. 2:04-cv00893 (“Due process does not forbid the board from considering the death penalty originally
imposed. . . as a gauge to the serious nature of the offenses committed.”)). Based on the
foregoing, Petitioner’s first and third arguments fail.
B.

Information Relied Upon

Next, Petitioner claims the Parole Board denied him due process based upon its reliance
on false information; specifically, that he had been sentenced to life without the possibility of
parole. Although a Parole Board’s reliance on false information may constitute a due process

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violation, see Jergens v. Ohio Dep’t of Rehab. and Corr. Adult Parole Auth., 492 F. App’x 567,
571 n.5 (6th Cir. 2012), there is no such violation here.
As noted above, every Court to consider the issue has found Petitioner’s claim is without
merit because the Parole Board acted within its discretion. Irrespective of those decisions,
Petitioner’s claim that false information was the reason for the Parole Board’s decisions is
contrary to the record. Ms. Mausser’s affidavit reiterates the reasons for those decisions, and her
statements are consistent with the decisions in the record. (See, e.g., Doc. 5-1, PAGEID #: 872
(finding that Petitioner was unsuitable for parole due to the serious nature of the crime); id.,
PAGEID #: 886 (continuing Petitioner into his guideline range of 300 months-life, based on his
offense behavior involving the death of his mother, father, and two brothers, and in deference to
the court’s original sentence of death); id., PAGEID #: 251 (denying parole based on the severity
of the crime); Doc. 5-3, PAGEID #: 1821–23 (same); id., PAGEID #: 1891 (same)).
Stated simply, this Court disagrees with Petitioner’s contention that the Parole Board
made its decisions based on a mistaken belief that he was ineligible. To the contrary, the record
reveals that the Parole Board was aware of his eligibility, but found him unsuitable based on the
severity of his crime. It was within the Parole Board’s discretion to make that determination, and
Petitioner’s due process claim fails.
“Due process in parole proceedings is satisfied as long as the procedure used affords the
inmate an opportunity to be heard, and, if parole is denied, the parole board informs the inmate
of the basis upon which it denied parole.” Swihart, 209 F. App’x at 459 (citing Greenholtz v.
Inmates of the Nebraska Penal and Corr. Complex, 442 U.S. 1, 16 (1979)). Here, due process
has been satisfied, and Petitioner’s claim is without merit.

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V.

MOTION FOR DISCOVERY AND EVIDENTIARY HEARING
Additionally, Petitioner has filed a Motion for Discovery pursuant to Rule 6 of the Rules

Governing Section 2254 Cases in the United States District Courts. (Doc. 9). Specifically,
Petitioner seeks discovery to support his argument that the Parole Board relied on false
information in his file. (Id. at 4–5). For the reasons set forth above, the Court finds Petitioner’s
claim to be without merit. Thus, the Motion for Discovery is DENIED. (Id.).
Petitioner also requests an evidentiary hearing. (Id. at 1). An evidentiary hearing is not
required where it would be futile or where, as here, the record is complete and no fact that could
be developed would result in the granting of the writ. Mack v. Bradshaw, No. 1:04CV829, 2010
WL 1416703, at *1 (N.D. Ohio Mar. 31, 2010).

Therefore, Petitioner’s request for an

evidentiary hearing also is DENIED. (Doc. 9 at 1).
VI.

RECOMMENDED DISPOSITION
Based upon the foregoing, the Magistrate Judge RECOMMENDS that this action be

DISMISSED. Petitioner’s request for an evidentiary hearing and Motion for Discovery are
DENIED. (Doc. 9).
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further

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evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
IT IS SO ORDERED.

Date: March 7, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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