Warren v. Baskerville

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOUGLAS WARREN, 

Petitioner-Appellant,

v.  No. 99-7230

ALTON BASKERVILLE,

Respondent-Appellee.



Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-99-280-7)

Argued: September 28, 2000

Decided: November 13, 2000

Before WILKINSON, Chief Judge, and WIDENER and

MOTZ, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Widener and Judge Motz joined.

COUNSEL

ARGUED: Adam Nathan Steinman, Appellate Litigation Program,

GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,

for Appellant. Christopher Garrett Hill, Assistant Attorney General,

Criminal Law Division, OFFICE OF THE ATTORNEY GENERAL,

Richmond, Virginia, for Appellee. ON BRIEF: Steven H. Goldblatt,

Director, Neil H. Jaffee, Supervising Attorney, Jeffrey E. Palker, Stu-

2 WARREN v. BASKERVILLE

dent Counsel, Appellate Litigation Program, GEORGETOWN UNI-

VERSITY LAW CENTER, Washington, D.C., for Appellant. Mark

L. Early, Attorney General, Criminal Law Division, OFFICE OF

THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

OPINION

WILKINSON, Chief Judge:

Douglas Warren, a Virginia prisoner, claims that the Virginia

Parole Board violated the Ex Post Facto Clause when, upon revoking

his parole, it likewise revoked his previously earned good time cred-

its. Because Virginia law bestowed the Parole Board with authority

to revoke good time credits well before Warren committed his origi-

nal offenses and because Warren is challenging a mere policy deci-

sion of the Virginia Parole Board, we affirm the district court’s

dismissal of Warren’s habeas petition.

I.

In 1990, Douglas Warren was convicted of two counts of aggra-

vated sexual battery. Warren was sentenced to eight-years imprison-

ment. On February 27, 1995, the Virginia Parole Board released

Warren on mandatory parole pursuant to Va. Code Ann. § 53.1-159

(Michie 1998). By that time, Warren had earned four years and seven

months of good conduct time allowances.

Two sections of the Virginia Code are of particular relevance to

Warren’s appeal. The first, § 53.1-165, provides that the Virginia

Parole Board has authority "in its discretion, [to] revoke the parole

and order the reincarceration of the prisoner for the unserved portion

of the term of imprisonment originally imposed upon him." Va. Code

Ann. § 53.1-165 (Michie Supp. 2000). This language was enacted

prior to 1990 when Warren committed his original offenses. The sec-

ond relevant section of the Virginia Code is § 53.1-159. In 1994, the

Virginia legislature amended § 53.1-159 to give the Parole Board

authority to forfeit a mandatory parole violator’s good time credits.

The amended statute provides that prisoners who have their parole

WARREN v. BASKERVILLE 3

revoked may have "to serve the full portion of the term imposed by

the sentencing court which was unexpired when the prisoner was

released on parole." Va. Code Ann. § 53.1-159 (Michie 1998). In

1995, the Parole Board adopted a new policy that required all manda-

tory parole violators to serve all of their original sentences without the

benefit of their accumulated good time credits.1

In 1998, Warren changed his residence and left Virginia without

the permission of his probation officer. After a hearing, the Virginia

Parole Board determined that Warren had violated his parole. The

Virginia Department of Corrections then notified Warren that pursu-

ant to the Parole Board’s 1995 policy and Va. Code Ann. § 53.1-159,

the Parole Board had "revoked" the four years and seven months of

good time credits that Warren had earned prior to his release on man-

datory parole.

In 1998, Warren filed a petition for a writ of habeas corpus with

the Virginia Supreme Court. Warren claimed that the retrospective

forfeiture of his good time credits violated the Ex Post Facto Clause.

See U.S. Const., art I, § 10, cl. 1. The Supreme Court of Virginia sum-

marily dismissed the petition as frivolous. Having exhausted his state

court remedies, Warren filed a habeas petition in federal district court.

See 28 U.S.C. § 2254 (1994 & Supp. III 1997). The district court dis-

missed Warren’s petition. Warren now appeals.

II.

The Ex Post Facto Clause bars enactments which, by retroactive

application, increase the punishment for a crime that has already been

committed. See Collins v. Youngblood, 497 U.S. 37, 42 (1990). War-

1

The Board formally recorded its 1995 policy change in a 1997 Policy

Manual. The Manual states:

The Virginia Parole Board shall upon revocation of parole pursu-

ant to 53.1-159, require the prisoner to serve the full portion of

the term imposed by the sentencing court which was unexpired

when the prisoner was released on parole without regard to good

conduct credit.

Virginia Parole Board Policy Manual, Part II.J.4 (July 1997).

4 WARREN v. BASKERVILLE

ren argues that the Virginia Parole Board’s decision to reincarcerate

him for the unserved portion of his sentence violated this provision.

Although some retroactive changes to parole laws may violate the Ex

Post Facto Clause, see Lynce v. Mathis, 519 U.S. 433, 445-46 (1997),

this is not one of those cases.

A.

To begin with, the law governing Warren’s parole has not changed.

Virginia Code § 53.1-165 was in effect at the time Warren committed

his original offenses. This provision authorizes the Virginia Parole

Board to "order the reincarceration of the prisoner for the unserved

portion of the term of imprisonment originally imposed." Va. Code

Ann. § 53.1-165 (emphasis added). Under the plain terms of § 53.1-

165, the Parole Board possessed the authority to reincarcerate Warren

for the entire portion of his original sentence.

Warren asserts that § 53.1-165 does not actually provide the Parole

Board with authority to revoke good conduct credits. Warren argues

that legislative history surrounding the 1994 amendment to § 53.1-

159 suggests that it is unclear whether the Board possesses authority

to revoke good time credits under § 53.1-165.

This court, however, cannot accept Warren’s invitation to adopt a

novel interpretation of § 53.1-165. We see little reason to disregard

the plain meaning of the statutory text in favor of some snippets of

legislative history. Moreover, the Virginia Supreme Court has already

addressed Warren’s claim and dismissed it as frivolous, presumably

because his argument is so at odds with the plain meaning of § 53.1-

165. See Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998)

(holding that the Virginia Supreme Court’s summary dismissal of

petitioner’s state habeas claim was an adjudication on the merits). In

addition, the Virginia Attorney General issued an opinion in 1986

interpreting § 53.1-165 to bestow such discretion upon the Parole

Board.2 In essence, Warren asks this court to declare that the Virginia

2

The opinion notes that "Section 53.1-165 makes it clear that a parole

violator may be required, in the discretion of the Parole Board, to serve

the balance of the term of imprisonment to which the court or the jury

WARREN v. BASKERVILLE 5

Supreme Court and the Virginia Attorney General misinterpreted Vir-

ginia law. We are unwilling to do so.

The Virginia Parole Board possessed the authority to revoke War-

ren’s good time credits under both § 53.1-165 and (after 1994) § 53.1-

159. Thus, the fact that the Parole Board may have relied on § 53.1-

159, instead of § 53.1-165, in revoking Warren’s good time credits is

of little weight.

B.

Warren argues that even if the Board had authority under § 53.1-

165 to revoke his good time credits, the Board’s 1995 policy change

violated the Ex Post Facto Clause. We disagree. No State shall pass

any "ex post facto Law." U.S. Const., art. I, § 10, cl. 1; see also U.S.

Const., art. I, § 9, cl. 3 (no "ex post facto Law shall be passed"). As

the constitutional text makes clear, the ex post facto prohibition

applies to "laws." See United States v. Ellen, 961 F.2d 462, 465 (4th

Cir. 1992); Prater v. U.S. Parole Comm’n, 802 F.2d 948, 951 (7th

Cir. 1986) (en banc) ("The constitutional prohibition against ex post

facto laws . . . is directed to the legislative branch of government

rather than to the other branches."). A change in an administrative

policy that was in effect at the time of a criminal’s underlying

offenses does not run afoul of the prohibition against ex post facto

laws. See Ellen, 961 F.2d at 465; see also Dufresne v. Baer, 744 F.2d

1543, 1549-50 (11th Cir. 1984) (holding that the United States Parole

Commission’s parole guidelines do not have the force of law, and

thus the Commission’s retrospective amendment of the guidelines did

not violate the Ex Post Facto Clause).

Warren argues that the Ex Post Facto Clause applies because the

1995 policy change constituted an exercise of the Board’s delegated

originally sentenced him." 1985-86 Va. Op. Atty. Gen. 222, 1986 WL

221263. While the Attorney General’s opinion is not binding precedent,

it is at least as persuasive an interpretation of § 53.1-165 as the legisla-

tive history upon which Warren relies. See City of Virginia Beach v. Vir-

ginia Restaurant Assoc., 341 S.E.2d 198, 201 (Va. 1986) (holding that

while the Virginia Attorney General’s opinion is not binding, it is enti-

tled to due consideration in matters of statutory interpretation).

6 WARREN v. BASKERVILLE

lawmaking authority to adopt "general rules governing the granting of

parole." Va. Code Ann. § 53.1-136.1 (Michie Supp. 2000). Such a

general delegation of parole authority, however, does not render every

particular change in parole policy subject to the Ex Post Facto Clause.

The 1995 policy change was a mere "statement[ ] of enforcement pol-

icy." Ellen, 961 F.2d at 465. The 1997 document memorializing the

1995 policy was entitled "Policy Manual" and did not for ex post

facto purposes have the force and effect of law. The Board’s 1995

policy simply laid out how the Board intended to exercise its previ-

ously existing discretionary authority under statute. In 1995, the

Board decided that under existing Virginia law, it would require man-

datory parole violators to spend the unserved portions of their prison

sentences in jail. This policy change was consistent with the Board’s

authority under § 53.1-165. Contrary to Warren’s claims, the policy

change did not remove the Board’s discretion. Instead the Board exer-

cised its discretion in favor of requiring parole violators to serve the

entire remainder of their original sentences.

III.

As the Supreme Court has recently recognized, the Ex Post Facto

Clause should not be used for "‘the micromanagement of an endless

array of legislative adjustments to parole and sentencing procedures.’

. . . The States must have due flexibility in formulating parole proce-

dures and addressing problems associated with confinement and

release." Garner v. Jones, 120 S. Ct. 1362, 1368 (2000) (quoting Cal-

ifornia Dept. of Corrections v. Morales, 514 U.S. 499, 508 (1995)).

In this case, the Virginia Parole Board made a policy decision that

was within the parameters of existing state law. If the States are to

have any freedom in developing optimal parole systems, they must be

able to make policy adjustments without raising the specter of consti-

tutional litigation. See Garner, 120 S. Ct. at 1368; Roller v. Gunn, 107

F.3d 227, 237 (4th Cir. 1997).

For the foregoing reasons, the judgment of the district court is

AFFIRMED.