Summary
finding no constitutional due process rights in connection with laws governing parole in Ohio
Summary of this case from Richard v. MohrOpinion
No. 82-986
Decided March 16, 1983.
Mandamus to compel parole hearing — Ten-year extension of next parole hearing — R.C. 2967.03 does not create expectancy of parole or presumption that parole will be issued — Due Process Clause not violated, when — Writ denied.
APPEAL from the Court of Appeals for Franklin County.
This cause is before the court upon an appeal as of right from the dismissal of a mandamus action by the court of appeals.
Appellant, Richard H. Blake, was denied a parole on June 24, 1976. His next parole hearing date was set for May 1986.
On October 10, 1981, appellant filed this action seeking an order to compel appellees, who included members of the Ohio Adult Parole Board, to hold another parole hearing. Appellant contended he was not afforded certain minimal due process rights in his 1976 hearing and that the appellees violated their own administrative regulations.
After various pleadings were filed, relating both to the merits of the case and to discovery requests by appellant, the court of appeals dismissed the action.
Mr. Richard H. Blake, pro se. Mr. William J. Brown, attorney general, and Mr. Dennis L. Sipe, for appellees John Shoemaker, Acting Chief, Adult Parole Authority, Clarence Clark, Chairman, Ohio Adult Parole Board, George Bustamonte, Member, Ohio Adult Parole Board, and Arnold Jago, Superintendent, London Correctional Institution.
The basis of appellant's argument is that his right to parole consideration provided in R.C. 2967.03 automatically creates a liberty interest sufficient to establish a right to procedural due process. This contention was rejected in Greenholtz v. Nebraska Penal Inmates (1979), 442 U.S. 1, with the exception of where the state statute itself creates an expectancy of release. The Nebraska statute before the court in Greenholtz required release by the parole authority unless any one of four conditions negating parole was found to exist. The court stated that the expectancy of release provided by the Nebraska statute "is entitled to some measure of constitutional protection," but emphasized that "* * * whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis." Id. at 12.
R.C. 2967.03 provides the Ohio Adult Parole Authority may grant parole to a prisoner "* * * if in its judgment there is a reasonable ground to believe that if * * * the prisoner is paroled, such action would further the interests of justice and be consistent with the welfare and security of society." This statute is a grant of discretion; it does not create any presumption that parole will be issued and does not create an expectancy of parole upon which appellant can base his due process claim. See Wagner v. Gilligan (C.A. 6, 1979), 609 F.2d 866.
Appellant also makes a claim that he was not provided written reasons for the ten-year extension of his next parole hearing as required by appellees' administrative regulations. This factual question was resolved against appellant by the court of appeals and this court is not persuaded to the contrary.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
J.P. CELEBREZZE, J., not participating.