Jacob v. Cotton, A-15-1037

Jacob was convicted in 1986 of three counts of second-degree murder and two weapon-enhancement counts; sentences were consecutive, including life terms for murder.
At the time of the offenses the statutory minimum for second-degree murder was 10 years; later statutes (1995) increased that minimum to 20 years.
Parole eligibility was calculated for January 17, 2015, but the Nebraska Parole Board reviewed Jacob on August 7, 2014, and deferred parole review until August 2015, citing the seriousness of the crime and need for further treatment/training.
Jacob filed a declaratory judgment petition claiming (1) ex post facto violation (parole standards reflecting later increased minimum), (2) separation of powers (Parole Board effectively increasing sentence), and (3) due process violation (deferred parole without adequate hearing).
The district court granted the Parole Board’s motion to dismiss for failure to state a claim; Jacob appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ex post facto	Jacob: Parole Board applied post‑offense higher minimum (20 yrs), disadvantaging him.	Board: Deferral based on §83‑1,114 discretionary factors, not on amended §28‑105; no change to §83‑1,114.	Not an ex post facto violation; Board acted within statutory discretion.
Separation of powers	Jacob: Parole deferral re‑imposes/lengthens punishment, usurping judicial sentencing.	Board: Constitution and statutes confer parole authority to Parole Board, subject to legislative conditions.	No violation; parole power is executive and proper under Nebraska Constitution.
Due process	Jacob: Deferral effectively extends sentence; Board’s decision is arbitrary and akin to resentencing without process.	Board: Parole is discretionary; Nebraska’s procedures (per Greenholtz) provide adequate process and notice of reasons.	No due process violation; Jacob was informed of reasons for deferment and procedures satisfy due process.

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979) (parole procedures that provide opportunity to be heard and reasons for denial satisfy due process)
Adams v. State, 293 Neb. 612 (2016) (statutory parole eligibility conditions are prerequisite; Board alone has authority to grant parole)
State v. Simnick, 279 Neb. 499 (2010) (ex post facto analysis: laws applying retroactively to disadvantage defendants are prohibited)
Shepard v. Houston, 289 Neb. 399 (2014) (ex post facto protections ensure fair warning and guard against vindictive legislation)
Carr v. State, 152 Neb. 248 (1950) (granting parole is discretionary and not a right)