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Nebraska Supreme Court denies requests of 2 men affected by miscalculated prison sentences


OMAHA, Nebraska — The Nebraska Supreme Court on Friday denied the legal requests of two men ordered back to prison last year after being wrongly released because state officials had routinely miscalculated sentences.

The state's high court dismissed the appeal of Kena Jackson, 41, who was released last year after serving 10 years on a drug possession conviction as a habitual criminal. Authorities later determined Jackson had been released 2½ years too early and returned him to prison.

Jackson argued that a lower court lacked jurisdiction to order his arrest and return to prison and that issuing the arrest and commitment warrant without notice or a hearing violated his constitutional right to due process.

State attorneys had argued that giving Jackson and other freed inmates advance notice about hearings would have given them a chance to flee.

The high court said in dismissing Jackson's appeal that the lower court's order for his arrest and commitment was a temporary enforcement order that cannot be appealed. It said only final court orders may be appealed. The justices said Jackson should have instead filed a petition for habeas corpus, which is the right to seek relief from illegal detention.

But in a second opinion Friday related to the state's early release and rearrest of prisoners, the Supreme Court denied the habeas corpus petition of another man affected by the miscalculated prison sentences, Bruce Caton.

Caton, 58, was sentenced in 2004 as a habitual criminal after being convicted of burglary, meaning he had to serve the mandatory minimum of 10 years before he could start earning "good time" credit. Caton was released more than five years early, according to the corrected calculations. He was arrested last year and brought back into the prison system's custody before being immediately released on parole.

Caton said in his petition that his arrest and new subjection to parole violates constitutional prohibitions against ex post facto, or after-the-fact laws and punishments. The high court rejected that argument, saying that previous court rulings and state laws regarding mandatory minimum sentences and "good time" provisions — which enable prisoners to trim time off their sentences because of good behavior — clearly spell out when inmates should be released. Therefore, the court said, Caton's return to prison was neither surprising nor legally unsupportable.

Caton served as his own lawyer in the habeas corpus case. A listed phone number for Caton could not be found Friday.

An attorney for Jackson, Jerry Soucie of Lincoln, said he is waiting to see how the high court rules on two other pending habeas corpus petitions in the cases of two other men whose sentences were miscalculated, leading them to be released early and later rearrested and imprisoned.

"If (they) get the relief that I believe they're entitled to, then Mr. Jackson will be out in 48 hours, probably," Soucie said.

Jackson and Caton were among 750 inmates who had their prison stays recalculated last year after it was learned that state prison officials had been incorrectly setting early release dates for nearly two decades. Of those 750, nearly 200 already had been released early. The state returned about 40 to custody, including Jackson and Caton.

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