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Justice Pfeifer shares view on parole
PAUL E. PFEIFER
Supreme Court
Published: September 18, 2014
Darby Scarberry, an inmate in the North Central Correctional Complex in Marion, filed a claim alleging that the Ohio Adult Parole Authority (“OAPA”) violated his constitutional rights by denying his parole application based upon a report that falsely stated that he used a knife in a robbery and raped the victim.
While that claim was very recent, his case actually began all the way back on Dec. 18, 1983. It was on that day that Scarberry committed rape. Six months later he was convicted and sentenced to a term of 10 to 25 years.
Now let’s jump ahead to Dec. 1 and 2, 2009. Scarberry, while out of prison on parole, committed two theft offenses at the same gas station in Lima, Ohio. On Jan. 7, 2010, Scarberry pleaded guilty to two misdemeanor counts of petty theft for the 2009 offenses.
Three days later, Parole Officer Philip Rader prepared a violation report recommending revocation of Scarberry’s parole. According to Scarberry, the Rader report falsely accused him of raping a gas-station attendant at knifepoint during one of the December 2009 petty thefts.
In February, the OAPA ruled that Scarberry had violated the conditions of his parole. The report containing the OAPA’s findings made no mention of a knife being used or a rape being committed during the December 2009 offenses.
Scarberry alleged that he first became aware of the Rader report more than a year later, in May 2011. Upon learning of the report, Scarberry filed a grievance with the OAPA seeking to have his parole revocation readdressed, but an OAPA regional administrator rejected the complaint.
On Jan. 25, 2013, upon completion of Scarberry’s 36-month re-incarceration, the OAPA conducted a parole hearing and denied Scarberry’s request for early release.
After his complaint to the OAPA was unsuccessful, Scarberry filed a petition for a writ of habeas corpus with the court of appeals. In this context, a writ of habeas corpus is employed to bring a person before a court to ensure that the person’s imprisonment is not illegal.
But the court of appeals issued a judgment denying his complaint on the grounds that Scarberry had no constitutional right to early release. After that, his case came before us – the Supreme Court of Ohio – for a final review.
We ultimately affirmed the court of appeals dismissal for three reasons. First, in Scarberry’s case, a writ of habeas corpus is not the appropriate remedy to address his complaint. The revocation of parole implicates constitutional liberty interests, such that the parolee is entitled to certain due-process protections, among them the right to a hearing. Thus, the remedy for an alleged due-process violation is a new hearing, not immediate release from confinement.
Scarberry made clear that the relief he was seeking was a new parole hearing, not immediate release. However, prior court decisions have established that habeas corpus applies only if the person filing the case is entitled to immediate release from confinement.
Except in extreme circumstances involving unreasonable delay, which Scarberry did not allege, habeas is the wrong remedy to challenge alleged due-process violations at a parole hearing.
Scarberry’s second problem: he did not establish a right to a new early-release hearing.
Scarberry’s complaint concerned two distinct actions by the OAPA. In February 2010, the board revoked his parole. And in January 2013, the board denied him early release. Scarberry wasn’t asking the court to order a new revocation hearing. Rather, he was asking the court “to order an evidentiary hearing and then issue a writ of habeas corpus ordering” another release hearing before the Parole Board to determine his suitability for release.
However, there is no legal basis for our court to order a new hearing to consider early release. The decision to grant or deny early release is wholly discretionary, and a prisoner has no “expectancy of parole upon which he can base his due process claims.” Therefore, Scarberry could not demonstrate a clear legal duty on the part of the OAPA to conduct a second hearing.
Finally, and perhaps most fundamentally, we affirmed the court of appeals’ judgment because the Rader report does not accuse Scarberry of committing rape in 2009. Therefore, he could not establish a due-process violation.
Scarberry claimed that the Rader violation report accuses him of using a knife and committing a rape in 2009. Scarberry objected to the following sentence: “Due to the nature of the offender’s underlying offense, in which he went into a gas station and robbed it at knife point, and then proceeded to rape the cashier, his parole was revoked as a result.”
The warden of the North Central Correctional Complex – where Scarberry was incarcerated – contended that the sentence refers to the 1983 rape offense, not to the 2009 offense. Scarberry countered that Rader could not have been referring to the 1983 incident, because that rape occurred in a Lawson’s Food and Deli, not a gas station, and did not involve a knife.
Despite the erroneous details, however, the sentence in the Rader violation report could only have been referring to the 1983 rape, not the 2009 incident. When the sentence is read in context with the rest of the report, it is plainly clear that the report was describing what happened to Scarberry as a consequence of his arrest for robbing three different gas stations in Bellefontaine, Ohio in 2007. Thus, Scarberry’s interpretation makes no sense.
Moreover, the use of the past tense – his parole “was revoked” – underscores the fact that the report referred to events prior to 2009, since at the time the report was written, Scarberry’s parole had not yet been revoked for the 2009 offenses.
Because the statement in the report was factually accurate, there is nothing to correct, Scarberry’s rights were not violated, and he failed to state a claim for relief.
We therefore affirmed the judgment of the court of appeals by a seven-to-zero vote.
EDITOR’S NOTE: The case referred to is: Scarberry v. Turner, 139 Ohio St.3d 111, 2014-Ohio-1587. Case No. 2013-1228. Decided April 16, 2014. Opinion Per Curiam.