Michael v. Ghee

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0305p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiffs-Appellants, -

DENNIS MICHAEL, et al.,

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No. 06-3595

v.

,

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MARGARETTE GHEE, Chairperson, Ohio Adult -

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Defendants-Appellees. -

Parole Authority, et al.,

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Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 01-07436—James G. Carr, Chief District Judge.

Argued: June 1, 2007

Decided and Filed: August 10, 2007

Before: MOORE and GRIFFIN, Circuit Judges; McKINLEY, District Judge.*

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COUNSEL

ARGUED: Leonard W. Yelsky, YELSKY & LONARDO, Cleveland, Ohio, for Appellants. Todd

R. Marti, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF:

Leonard W. Yelsky, Norman L. Sirak, YELSKY & LONARDO, Cleveland, Ohio, for Appellants.

Todd R. Marti, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

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OPINION

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GRIFFIN, Circuit Judge. Plaintiffs, inmates in Ohio correctional facilities who were

sentenced prior to Ohio’s enactment of a revised sentencing system on July 1, 1996, appeal the

district court’s order granting defendants’ motion for dismissal and for summary judgment.

Plaintiffs argue that the district court erred in dismissing their state law claims, and in entering

summary judgment in favor of defendants on plaintiffs’ claims arising under the Due Process, Equal

Protection, and Ex Post Facto Clauses of the Constitution. For the reasons set forth below, we

affirm.

*

The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western District of Kentucky,

sitting by designation.

1

No. 06-3595 Michael, et al. v. Ghee, et al. Page 2

I.

Under Ohio’s former sentencing law, Ohio inmates were given an indeterminate sentence

comprised of a minimum and a maximum sentence. An inmate became eligible for parole after

serving his or her minimum sentence, minus credit for good behavior. Parole decisions were

delegated to the Ohio Adult Parole Authority (“OAPA”). It determined when release was

appropriate for each inmate. In 1995, Ohio adopted a new sentencing system for crimes committed

after July 1, 1996. See OHIO REV. CODE § 5120 et seq. Under the new law, indeterminate sentences

were abandoned in favor of fixed terms of incarceration determined by the defendant’s presiding

judge. The new system does not apply retroactively to Ohio inmates sentenced under the former

sentencing scheme. OHIO REV. CODE § 5120.021(A).

In 1998, the OAPA adopted guidelines designed to guide the discretion of parole officers

making release determinations for Ohio inmates sentenced prior to July 1, 1996. The guidelines are

similar to the guidelines used by the United States Parole Commission, using two factors to

determine how long a prisoner should be incarcerated before parole: (1) the seriousness of the

inmate’s crime, and (2) the “risk of reoffense,” based on the inmate’s prior criminal conduct and

performance on probation and parole. The presumptive amount of time an inmate serves is

determined by finding the intersection on a grid between the inmate’s offense category and his or

her risk of reoffense. Parole officials, however, retain discretion to depart from the guidelines, but

may not retain an inmate beyond the maximum sentence. See OHIO REV. CODE § 2967.03

(describing the OAPA’s broad discretionary powers).

Plaintiffs filed this lawsuit in the Lucas County (OH) Court of Common Pleas on July 20,

2001, challenging the OAPA’s practices, procedures, and proceedings.1 In their amended complaint

brought pursuant to 42 U.S.C. § 1983, plaintiffs contend that the lack of retroactivity of the new

sentencing scheme and the implementation of the 1998 guidelines violate the Ex Post Facto, Due

Process, and Equal Protection Clauses of the Constitution, as well as various provisions of state law.

Defendants, various members of the OAPA, and the Ohio Parole Board (collectively

“defendants” or “the State”) removed this case to federal court. On February 1, 2006, the district

court granted the State’s motion for dismissal and summary judgment. The court held that 42 U.S.C.

§ 1983 does not provide for a cause of action for violations of state law and, accordingly, dismissed

plaintiffs’ state law claims pursuant to FED. R. CIV. P. 12(b)(6). The court entered summary

judgment in favor of the State on plaintiffs’ federal constitutional claims, holding that plaintiffs’ due

process claims fail for lack of a liberty interest, that plaintiffs’ equal protection claims fail under a

rational basis review, and that the Ex Post Facto Clause does not apply to the OAPA’s adoption of

the 1998 guidelines. This timely appeal followed.

II.

First, plaintiffs challenge the district court’s dismissal of their four causes of action that arise

under Ohio state law. The district court dismissed each of these causes of action for failure to state

a claim, pursuant to FED. R. CIV. P. 12(b)(6), because 42 U.S.C. § 1983 does not provide relief for

a violation of state law. In so holding, the district court relied on this court’s opinion in Huron

Valley Hosp., Inc. v. City of Pontiac, 887 F.2d 710, 714 (6th Cir. 1989). Plaintiffs dispute the

district court’s reliance on Huron Valley, and argue that the court’s dismissal runs counter to the

Supreme Court’s holding in Wilkinson v. Dotson, 544 U.S. 74 (2005). Plaintiffs’ arguments are

without merit, and the district court’s dismissal of claims one through four is affirmed.

1

Although plaintiffs intended this case to be a class action lawsuit, their motion for class certification was still

pending when the district court granted the State’s motion for dismissal and summary judgment. Thus, before this court,

plaintiffs must show that a genuine issue of material fact exists with regard to each named plaintiff.

No. 06-3595 Michael, et al. v. Ghee, et al. Page 3

In their first cause of action, entitled “Abuse of Discretion,” plaintiffs claim that the new

sentencing guidelines were never submitted to the Joint Committee on Agency Rule Review

pursuant to OHIO REV. CODE § 111.15(D) and that the State did not satisfy the procedure for

adopting the guidelines as set forth in OHIO REV. CODE § 119.03.

In their second cause of action, entitled “Arbitrary and Capricious Decision Making,”

plaintiffs cite OHIO ADMIN. CODE 5120:1-1-07, and claim that “[r]endering decisions without fully

disclosing eligibility criteria is akin to deviating from fixed rules and rendering decisions predicated

upon unknown rules. This practice constitutes arbitrary and capricious decision-making.” Under

this cause of action, plaintiffs claim further that Policy 501-36, which the OAPA adopted on

December 22, 2000, and – argues plaintiffs – makes consideration of the factors set forth in OHIO

ADMIN. CODE 5120:1-1-07(C) discretionary, contravenes OHIO REV. CODE § 2967.03.

In their third cause of action, entitled “Separation of Powers,” plaintiffs claim that because

the parole board has the discretion to retain inmates past the expiration of their minimum sentence

date, the parole board exceeds the scope of its state constitutional powers.

In their fourth cause of action, entitled “Bad Faith,” plaintiffs claim that the parole board has

breached its duty to give every inmate a meaningful parole hearing. Plaintiffs contend that

“[p]romulgating [the] New Guidelines and Policy 501-36 to extend the sentences of Old Law

inmates, thereby extending their own careers and delaying the eventual demise of the Parole Board,

constitutes an ulterior motive.” Each cause of action was brought pursuant to 42 U.S.C. § 1983.

The district court properly dismissed these claims. “Section 1983 . . . authorizes courts to

redress violations of ‘rights, privileges, or immunities secured by the Constitution and [federal]

laws’ that occur under color of state law. ‘The statute is thus limited to deprivations of federal

statutory and constitutional rights. It does not cover official conduct that allegedly violates state

law.’” Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585, 597 (6th Cir. 2003)

(quoting Huron Valley Hosp., 887 F.2d at 714). In the2 amended complaint, plaintiffs have invoked

only state statutory authority for each of these claims. On appeal, plaintiffs have not identified any

federal law or constitutional provision that is implicated by these claims. In short, plaintiffs have

not offered any recognized argument that the district court erred in construing these claims as state

claims.

Nevertheless, plaintiffs argue that the district court’s reliance on Huron Valley is misplaced.

Plaintiffs contend that Huron Valley stands for the proposition that a plaintiff may properly

challenge an established state procedure pursuant to 42 U.S.C. § 1983. Plaintiffs are correct that

they may raise a challenge to an established state procedure pursuant to § 1983, but only to the

extent that the challenge invokes federal statutory or constitutional rights. In Huron Valley, we

noted explicitly that § 1983 may not be used as a vehicle to challenge “official conduct that

allegedly violates state law.” Huron Valley, 887 F.2d at 714. Thus, Huron Valley allows plaintiffs

to raise their due process claim through § 1983; it does not provide that plaintiffs have stated a

viable claim under § 1983 in their allegations of violations of Ohio state law.

Likewise, the Supreme Court’s consideration of the revised Ohio parole procedures in

Wilkinson v. Dotson, 544 U.S. 74 (2005), does not support plaintiffs’ position. In Dotson, the Court

held that state prisoners challenging the constitutionality of state parole procedures are not limited

to seeking relief exclusively under the federal habeas corpus statutes, but may also file their

2

Plaintiffs assert that the defendants’ “arbitrary and capricious decision-making” also constitutes a violation

of the Due Process Clause. However, plaintiffs have also included a separate due process cause of action that involves

essentially the same conduct.

No. 06-3595 Michael, et al. v. Ghee, et al. Page 4

challenge pursuant to § 1983. Dotson, 544 U.S. at 82. However, Dotson involved federal

constitutional challenges to the Ohio parole procedures only and is silent as to whether state

prisoners may raise state statutory and constitutional claims under § 1983. Id. at 76.

Plaintiffs also argue that the district court erroneously relied upon evidence offered by

defendants to rebut plaintiffs’ separation-of-powers claims. In dismissing plaintiffs’ state law

claims, however, the district court did not refer to any evidence offered by defendants. Rather, it

found that each cause of action was an allegation solely under state law that may not be brought

pursuant to 42 U.S.C. § 1983. Therefore, plaintiffs’ argument is without merit, and the district

court’s dismissal of these claims is affirmed.

III.

Plaintiffs also challenge the district court’s dismissal of their bad faith claim. On

December 18, 2002, the Ohio Supreme Court decided Layne v. Ohio Adult Parole Authority, 780

N.E.2d 548 (Ohio 2002). Prior to Layne, the OAPA calculated a prisoner’s parole guideline range

by considering all of the circumstances surrounding the prisoner’s offense(s), including, for

example, convictions for which the prisoner had been acquitted or charges that had been dropped

pursuant to a plea agreement. Id. at 550. The Layne court concluded that “the [O]APA must assign

an inmate the offense category score that corresponds to the offense or offenses of conviction.” Id.

at 555. The Layne court explained further, however, that once the OAPA correctly calculates the

prisoner’s parole guideline range, the OAPA “still retains its discretion to consider any

circumstances relating to the offense or offenses of conviction, including crimes that did not result

in conviction, as well as any other factors the [O]APA deems relevant.” Id.

Defendants in this case have argued that a number of plaintiffs’ claims were resolved by

Layne and were therefore rendered moot. Defendants submitted an affidavit from Richard Spence,

Chief of Quality Assurance for the Ohio Parole Board, stating that the OAPA began calculating

offense category scores pursuant to the instructions of Layne on the date that Layne was decided,

December 18, 2002. Defendants moved for dismissal of those aspects of plaintiffs’ claims that

relied on the OAPA’s calculation of the parole guideline range, and on March 24, 2003, the district

court dismissed those claims. Plaintiffs have not appealed that decision.

On April 1, 2003, plaintiffs filed an amended complaint. Most of plaintiffs’ amended

complaint repeated claims raised in their original complaint, but plaintiffs added claims to one cause

of action: “Bad Faith.” Plaintiffs alleged that Spence’s affidavit was false and described a number

of individual plaintiffs who were not released on parole, despite having served more time in prison

than was dictated by a correctly calculated parole guideline range. It appears that their revised bad-

faith cause of action may have been plaintiffs’ attempt to revive, in part, their previously dismissed

state-law claims – in effect, plaintiffs alleged that their previously dismissed claims should not have

been dismissed because the district court relied on a false affidavit in declaring those claims moot.

Nevertheless, plaintiffs’ bad-faith claims do not affect the resolution of this case. First,

plaintiffs should have moved for reconsideration, rather than alleging an additional claim, if they

wanted the district court to revisit its earlier ruling. Second, plaintiffs have not attempted to explain

how the filing of the allegedly false affidavit violated the Constitution or federal law. Third, and

most importantly, plaintiffs’ allegations do not even suggest that Spence’s affidavit was actually

false. The affidavit states that, after Layne, the OAPA took into account only a prisoner’s actual

convictions in calculating the prisoner’s parole guideline range. The Layne court, however,

concluded that the OAPA could consider any other factors in making its ultimate decision. Id. at

555. Spence’s affidavit did not mention whether the OAPA considered other factors. Plaintiffs did

not allege that the OAPA erroneously calculated any prisoner’s guideline range, but instead alleged

that a number of individual prisoners were not released on parole, despite serving more time in

No. 06-3595 Michael, et al. v. Ghee, et al. Page 5

prison than their parole guideline range dictated. That practice is not inconsistent with Layne or

Spence’s affidavit; pursuant to Layne, the OAPA could have considered other factors and concluded

that the prisoner’s guideline range did not adequately serve the interests of society. Therefore, even

if we were to assume that plaintiffs’ bad-faith claims were raised properly, we would conclude that

plaintiffs have failed to state a claim upon which relief can be granted.

IV.

Next, plaintiffs challenge the district court’s holding that their due process claims fail

because they do not have a liberty interest in parole under state law. Plaintiffs contend that the

district court erred in concluding that their claims are barred by Jago v. Van Curen, 454 U.S. 14, 20

(1981), and that their due process claims should be analyzed under the standard announced by the

Court in Sandin v. Conner, 515 U.S. 472, 484 (1995). We affirm the district court’s entry of

summary judgment in favor of defendants on plaintiffs’ due process claims.

In Swihart v. Wilkinson, 209 F. App’x 456 (6th Cir. 2006), we considered and rejected the

same argument that plaintiffs raise here – that the denial of parole should be analyzed under

Sandin’s “atypical and significant hardship” standard. We held, in pertinent part, as follows:

The district court properly concluded that Swihart’s complaint failed to state a claim

upon which relief could be granted. Although Swihart’s due process challenge to the

procedures used by the parole board is cognizable under § 1983 pursuant to

Wilkinson v. Dotson, 544 U.S. 74 (2005), Swihart failed to state a violation of due

process. A plaintiff bringing a § 1983 action for procedural due process must show

that the state deprived him or her of a constitutionally protected interest in “life,

liberty, or property” without due process of law. Zinermon v. Burch, 494 U.S. 113,

125 (1990) (citing Parratt v. Taylor, 451 U.S. 527, 537 (1981)). A Fourteenth

Amendment procedural due process claim depends upon the existence of a

constitutionally cognizable liberty or property interest with which the state has

interfered. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989).

However, this Court has repeatedly noted that “there is no constitutional or inherent

right of a convicted person to be conditionally released [e.g., paroled] before the

expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7 (1979). The Constitution of the United States does not

require a state to provide a parole system. See Pennsylvania v. Finley, 481 U.S. 551,

(1987). More importantly, the state of Ohio has not created a liberty interest in

parole eligibility, as it has a completely discretionary parole system. See Saunders

v. Williams, 89 F. App’x 923, 924 (6th Cir. 2003); OHIO REV. CODE § 2967.03; Jago

v. Van Curen, 454 U.S. 14, 20-21 (1981); Inmates of Orient Corr. Inst. v. Ohio State

Adult Parole Auth., 929 F.2d 233, 235-37 (6th Cir. 1991).

Swihart argues that the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472,

484 (1995), requires his claim be analyzed under a different standard and that the

“nature of the deprivation” must be considered. However, Swihart’s due process

claim also fails if analyzed under Sandin. In Sandin, the Supreme Court mandated

that a state creates a liberty interest in avoiding certain prison conditions only where

those conditions are an “atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life.” Id. However, Sandin was decided only in

the context of prison conditions, not parole eligibility. This Court has never held that

an inmate’s eligibility for parole at a certain time, under a discretionary parole

system, is an “atypical and significant hardship.” Swihart’s eligibility or non-

eligibility for parole does not affect the manner in which he is confined and, thus, no

liberty interest is implicated.

No. 06-3595 Michael, et al. v. Ghee, et al. Page 6

Swihart, 209 F. App’x at 458-59. Although Swihart is an unpublished decision and, therefore, not

precedentially binding under the doctrine of stare decisis, Williamson v. Aetna Life Ins. Co., 481

F.3d 369, 376 n.4 (6th Cir. 2007), we find this portion of its analysis persuasive and consistent with

our due process jurisprudence.3 Since Swihart, we have not extended Sandin to the parole eligibility

context, and plaintiffs have not articulated why Sandin’s “atypical and significant hardship” standard

should be so expanded. We therefore affirm the district court’s entry of summary judgment on

plaintiffs’ due process claims in favor of defendants.

V.

Plaintiffs next challenge the district court’s entry of summary judgment in favor of

defendants on their equal protection claims. Plaintiffs contend that the State violates the Equal

Protection Clause by giving new inmates fixed sentences, while inmates sentenced prior to 1995

serve indeterminate terms. In addition, plaintiffs argue that the State violated the Equal Protection

Clause by adopting the 1998 guidelines. The district court granted defendants’ motion for summary

judgment, holding that the State’s decision not to apply the 1996 sentencing law retroactively and

to adopt the 1998 guidelines withstands a rational basis constitutional review. We agree with the

district court and affirm.

The Equal Protection Clause of the Fourteenth Amendment commands that no state shall

“deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend.

XIV, § 1. As we have explained, “to withstand Fourteenth Amendment scrutiny, statutes that do not

interfere with fundamental rights or single out suspect classifications must bear only a rational

relationship to a legitimate state interest.” Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir. 2005)

(quoting Richland Bookmart, Inc. v. Nichols, 278 F.3d 570, 574 (6th Cir. 2002)). The district court

concluded properly that plaintiffs are not members of a suspect class and that they do not allege a

violation of a fundamental right. “Without question, prisoners are not considered a suspect class for

purposes of equal protection litigation.” Jackson, 411 F.3d at 619; see also Wilson v. Yaklich, 148

F.3d 596, 604 (6th Cir. 1998). In addition, there is no fundamental right to parole under the

Constitution. Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1982); Jackson, 411 F.3d at 619.

Because neither a fundamental right nor a suspect class is at issue, the rational basis review

standard applies. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286,

298 (6th Cir. 2006). “Under rational basis scrutiny, government action amounts to a constitutional

violation only if it ‘is so unrelated to the achievement of any combination of legitimate purposes that

the court can only conclude that the government’s actions were irrational.’” Id. (quoting Warren v.

City of Athens, 411 F.3d 697, 710 (6th Cir. 2005)). The plaintiffs bear the burden of demonstrating

that the government lacks a rational basis, and they may satisfy this burden either by negating

“‘every conceivable basis which might support the government action, or by demonstrating that the

challenged government action was motivated by animus or ill-will.’” Id. (quoting Warren, 411 F.3d

at 711). The State, conversely, bears no burden of proof; its legislative choice is presumptively valid

and “‘may be based on rational speculation unsupported by evidence or empirical data.’” Id.

(quoting Trihealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 790 (6th Cir. 2005)).

We hold that plaintiffs have not negated defendants’ asserted rational bases for refusing to

apply the 1996 sentencing law retroactively and for adopting the 1998 guidelines. Among its stated

rationales for limiting the 1996 sentencing law to prospective application only, the State argues that

the Ohio legislature sought to address the issue of sentencing reform “one step at a time.” In

general, this is a rational basis. See Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489

3

As discussed in Section V, infra, we reject, as inconsistent with Supreme Court precedent, the additional

holding of Swihart that “the Ohio parole guidelines which postpone parole are guidelines only, not laws, and are,

therefore, not subject to the Ex Post Facto Clause.” Swihart, 209 F. App’x at 459.

No. 06-3595 Michael, et al. v. Ghee, et al. Page 7

(1955) (“The problem of legislative classification is a perennial one, admitting of no doctrinaire

definition. Evils in the same field may be of different dimensions and proportions, requiring

different remedies. Or so the legislature may think. Or the reform may take one step at a time,

addressing itself to the phase of the problem which seems most acute to the legislative mind. The

legislature may select one phase of one field and apply a remedy there, neglecting the others.”)

(internal citations omitted). Defendants have also explained the prospective application of the new

sentencing law by stating that it keeps “with the well recognized rule of statutory construction that

provides ‘statutes affecting substantive rights and liabilities are presumed to have only prospective

effect.’” Crosby-Bey v. District of Columbia, 700 F. Supp. 71, 73 (D.D.C. 1988) (quoting Anderson

v. USAir, Inc., 818 F.2d 49, 53 (D.C. Cir. 1987) and Bennett v. New Jersey, 470 U.S. 632, 639

(1985)). These rationales are sufficient to satisfy our rational basis review in light of binding

precedent, see Meeks v. Jago, 548 F.2d 134, 138 (6th Cir. 1976), abrogated on other grounds by

Rose v. Lundy, 455 U.S. 509, 522 (1982), and plaintiffs have not offered any argument or evidence

in response.

In explaining their adoption of the 1998 guidelines, defendants stated in the district court that

the previous guidelines “did not allow for sufficiently accurate evaluation of inmates’ cases, and

[they] produced inconsistent results and very low release rates.” Further, defendants argued that the

intent behind the new guidelines was to “promote a more consistent exercise of discretion, and

enable fairer and more equitable decision-making without removing the opportunity for

consideration of parole eligibility on an individual case basis.” As the district court found, the 1998

guidelines “implement that rational objective by providing a means to channel the factors parole

officials focus on when making release decisions.” On appeal, plaintiffs have not offered any

argument or evidence to rebut that rationale. Thus, we affirm the district court’s entry of summary

judgment on plaintiffs’ equal protection claims.

VI.

Finally, plaintiffs argue that the district court erred in holding that the Ex Post Facto Clause

does not apply to Ohio’s parole guidelines. The district court granted defendants’ motion for

summary judgment on plaintiffs’ Ex Post Facto Clause claims, holding that “[i]nternal parole

guidelines ‘are not laws for ex post facto purposes because the guidelines do not absolutely restrict

parole officials’ discretion.’” In the alternative, the court held that, even assuming the guidelines

are laws for ex post facto purposes, retroactive application of the guidelines does not create a

sufficient risk of increasing the measure of punishment attached to the underlying crime. We agree

with the district court’s alternate holding and affirm on that basis.

The Constitution prohibits states from imposing ex post facto laws. U.S. CONST. art. I, § 10,

cl. 1. “An ex post facto law possesses two elements: (1) ‘it must apply to events occurring before

its enactment,’ and (2) ‘it must disadvantage the offender affected by it.’” Dyer v. Bowlen, 465 F.3d

280, 285 (6th Cir. 2006) (quoting Lynce v. Mathis, 519 U.S. 433, 441 (1997)). In granting

defendants summary judgment on plaintiffs’ ex post facto claims, the district court relied on Ruip

v. United States, 555 F.2d 1331, 1335-36 (6th Cir. 1977), to hold that the 1998 guidelines are not

“laws” for ex post facto purposes. In Ruip, the appellant was sentenced in 1971 to a term of eighteen

years imprisonment for his participation in an armed bank robbery. Id. at 1332. In 1973, the United

States Parole Commission established a national parole policy and adopted parole guidelines. Id.

at 1333. After the appellant was denied parole in 1975, he raised an ex post facto challenge to the

denial of his parole request, which was based on the application of the newly-promulgated

guidelines. Id. at 1333-34. We denied the appellant’s claim, holding that administrative guidelines

on parole do not come within the prohibition against ex post facto laws. Id. at 1335-36. We

reasoned that:

No. 06-3595 Michael, et al. v. Ghee, et al. Page 8

what is involved in this case is not agency interpretation of law but an agency’s

setting up guidelines for itself to assure the uniform execution of its business. These

guidelines are not law, but guideposts which assist the Parole Commission (and

which assisted the Board of Parole) in exercising its discretion. Nor do these

guidelines have the characteristics of law. They are not fixed and rigid, but are

flexible. The Commission remains free to make parole decisions outside of these

guidelines.

Id. at 1335.

Although not previously addressed by this court in a published opinion, we now conclude

that Ruip should no longer be followed because it is inconsistent with the Supreme Court’s decision

in Garner v. Jones, 529 U.S. 244 (2000).4 In Garner, the Court considered an ex post facto

challenge to the retroactive application of a Georgia regulation permitting the extension of intervals

between parole violations. Id. at 247. Under Georgia law, the state’s parole board was required to

consider inmates serving life sentences for parole after seven years. Id. (citing GA. CODE ANN. § 42-

9-45(b) (1982)). At the time the Garner respondent committed his second offense, the parole

board’s regulations required parole reconsiderations to take place every three years. Id. In 1985,

after the respondent had begun serving his second life sentence, the parole board amended its rules

and regulations to provide that “reconsideration of those inmates serving life sentences who have

been denied parole shall take place at least every eight years.” Id. (quoting GA. COMP. R. & REGS.,

Rule 475-3-.05(2) (1985)). The Parole Board considered the respondent for parole in 1989, seven

years after his 1982 conviction. Id. After denying release, reconsideration was set for 1997, eight

years later and consistent with Rule 475-3-.05(2). Id.

The Court concluded that, on its face, the new parole board regulation did not pose a

significant risk of lengthening the respondent’s time of imprisonment.5 Id. at 256. The Court noted

two important aspects of the new regulation. First, the amendment “vests the Parole Board with

discretion as to how often to set an inmate’s date for reconsideration, with eight years for the

maximum.” Id. at 254 (quoting GA. COMP. R. & REGS., Rule 475-3-.05(2) (1985))

(“Reconsideration . . . shall take place at least every eight years.”). Second, the parole board’s

policies permit “expedited parole reviews in the event of a change in their circumstances or where

the Board receives new information that would warrant a sooner review.” Id. These characteristics

were significant because they “permit a more careful and accurate exercise of the discretion the

Board has had from the outset.” Id. “The policy enables the Board to put its resources to better use,

to ensure that those prisoners who should receive parole come to its attention.” Id.

There are several aspects of the Supreme Court’s decision in Garner that contradict our ex

post facto jurisprudence and affect Ohio’s parole guidelines at issue here. First, the Court made

clear that guidelines that affect discretion, rather than mandate outcomes, are nevertheless subject

to ex post facto scrutiny: “The presence of discretion does not displace the protections of the Ex

Post Facto Clause, however.” Id. at 253; Dyer, 465 F.3d at 288 (noting that Garner provides “that

discretion in parole considerations does not insulate the state from ex post facto violations.”). Cf.

Kilbane v. Kinkela, 24 F. App’x 241, 242-43 (6th Cir. 2001) (“In the past, this court has found that

Ohio parole officials have complete discretion in deciding whether an Ohio inmate will be paroled

4

See generally United States v. Checchini, 967 F.2d 348, 350 (9th Cir. 1992) (applying the rule that circuit court

opinions should not be followed when they are inconsistent with an intervening Supreme Court decision).

5

Because the “Court of Appeals’ analysis failed to reveal whether the amendment to Rule 475-3-.05(2), in its

operation, created a significant risk of increased punishment for respondent,” and because the respondent claimed that

he had not been permitted sufficient discovery to make this showing, the Supreme Court remanded the case for further

discovery. Id. at 257.

No. 06-3595 Michael, et al. v. Ghee, et al. Page 9

. . . and the plaintiffs point to no change in the law negatively restricting this discretion.”) (citing

Inmates of Orient Corr. Inst. v. Ohio St. Adult Parole Auth., 929 F.2d 233, 236 (6th Cir. 1991));

Adams v. Upper, No. 94-4235, 67 F.3d 299, 1995 WL 570915, at *2 (6th Cir. Sept. 27, 1995)

(unpublished table decision) (“Parole guidelines that do not divest a parole board’s discretion in

granting parole do not qualify as ex post facto laws.”).

Second, as Justice Scalia noted in his concurring opinion in Garner, the parole guidelines

at issue in Garner were administrative regulations issued by the Georgia State Board of Pardons and

Paroles, rather than a change to the parole laws made by the Georgia legislature. See Garner, 529

U.S. at 249 (Scalia, J., concurring) (“I would agree with the Court’s opinion if we were faced with

an amendment to the frequency of parole-eligibility determinations prescribed by the Georgia

legislature.”). The application of ex post facto scrutiny to an administrative regulation in Garner

contradicts our holdings in several unpublished decisions decided after Garner.6

Finally, the respondent in Garner was serving his second life sentence, after previously

escaping from prison and committing murder while on escape. Garner, 529 U.S. at 247. Although

it was impossible for the respondent to serve a longer term of imprisonment than his maximum

imposed sentence (life), the Supreme Court nevertheless remanded the case to the district court so

that the respondent could engage in discovery in order to attempt to establish that the challenged

parole created a significant risk of increased punishment for the respondent. Id. at 248-49. Cf. Hunt

v. Wilkinson, 79 F. App’x 861, 862 (6th Cir. 2003) (unpublished) (“Hunt was sentenced, as noted

above, to life in prison, consecutive to other terms of imprisonment, with the possibility of a

discretionary grant of parole. The new regulations, which may increase the periods between parole

hearings, and do not give Hunt a projected release date, do nothing to increase the punishment to

which Hunt was originally sentenced.”).

After Garner, the relevant inquiry, therefore, is not whether the challenged parole regulation

is a “law” or whether the guidelines present a significant risk of increasing the plaintiff’s maximum

penalty, but rather whether the new guidelines present a significant risk of increasing the plaintiff’s

amount of time actually served. See Garner, 529 U.S. at 255 (“When the rule does not by its own

terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s

practical implementation by the agency charged with exercising discretion, that its retroactive

application will result in a longer period of incarceration than under the current rule.”); id. (“In the

case before us, respondent must show that as applied to his own sentence the law created a

significant risk of increasing his punishment.”). See also Fletcher v. Reilly, 433 F.3d 867, 869-70

(D.C. Cir. 2006) (observing that it is clear after Garner that “the critical question in ex post facto

challenges to retroactively applied parole/reparole regulations is whether, as a practical matter, the

retroactive application creates a significant risk of prolonging an inmate’s incarceration”). But see

United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006) (holding that post-Booker Sentencing

Guidelines are not subject to ex post facto analysis, as “the ex post facto clause should apply only

to laws and regulations that bind rather than advise, a principle well established with reference to

parole guide-lines whose retroactive application is challenged under the ex post facto clause”).

6

See, e.g., Swihart, 209 F. App’x at 459 (observing that this court has held previously that “the Ohio parole

guidelines which postpone parole are guidelines only, not laws, and are, therefore, not subject to the Ex Post Facto

Clause”); Conley, 23 F. App’x at 506 (same); see also Kilbane, 24 F. App’x at 242-43 (denying ex post facto challenge

to 1998 guidelines and observing that “this court has found that Ohio parole officials have complete discretion in

deciding whether an Ohio inmate will be paroled and the plaintiffs point to no change in the law negatively restricting

this discretion”) (internal citation omitted). These unpublished opinions are not precedentially binding under the doctrine

of stare decisis, United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007), and no published Sixth Circuit case since

Garner has held that the Ohio parole guidelines are not “laws” within the meaning of the Ex Post Facto Clause.

No. 06-3595 Michael, et al. v. Ghee, et al. Page 10

We find the D.C. Circuit’s experience in the wake of Garner particularly instructive. In

Fletcher v. District of Columbia, 370 F.3d 1223, 1228 (D.C. Cir. 2004) (“Fletcher I”), the court

rejected a habeas petitioner’s ex post facto challenge to the application of the United States Parole

Commission guidelines to his parole hearing, holding that a parole guideline is not a “law” within

the proscription of the Ex Post Facto Clause. Upon the inmate’s petition for rehearing, the Court

of Appeals for the D.C. Circuit vacated Fletcher I, acknowledging Garner’s instruction that the

“controlling inquiry” is “‘whether retroactive application of the change’ in a regulation respecting

parole creates ‘a sufficient risk of increasing the measure of punishment attached to the covered

crimes.’” Fletcher v. District of Columbia, 391 F.3d 250, 251 (D.C. Cir. 2004) (“Fletcher II”)

(quoting Garner, 529 U.S. at 250). The D.C. Circuit in Fletcher II observed that, in Garner, the

Court “foreclosed our categorical distinction between a measure with the force of law and

‘guidelines [that] are merely policy statements from which the Commission may depart in its

discretion.’ Rather, the question is one of practical effect.” Fletcher II, 391 F.3d at 251 (internal

citation omitted).

In a later appeal, the D.C. Circuit Court reiterated its continued allegiance to Garner’s focus

on the practical effect to the plaintiff: “The labels ‘regulation’ and ‘guideline’ are not determinative.

And the existence of discretion is not dispositive. The controlling inquiry under Garner is how the

Board or the Commission exercises discretion in practice, and whether differences between the

exercise of discretion in two systems actually ‘create[] a significant risk of prolonging [an inmate’s]

incarceration.’” Fletcher v. Reilly, 433 F.3d 867, 876-77 (D.C. Cir. 2006) (“Fletcher III”) (quoting

Garner, 529 U.S. at 251). The 1998 Ohio guidelines are similar to the guidelines at issue in Fletcher

as they both guide the discretion of the parole board in making parole determinations, and we find

the approach taken by the D.C. Circuit to be consistent with Garner.

The relevant inquiry in this case, then, is whether retroactive application of the 1998 Ohio

guidelines creates a “sufficient risk of increasing the measure of punishment attached to the covered

crimes.” Garner, 529 U.S. at 250; Dyer, 465 F.3d at 285. Plaintiffs can satisfy this burden in one

of two ways. First, plaintiffs can establish an ex post facto violation if they can show that the

guidelines, on their face, show a significant risk of increased incarceration. Garner, 529 U.S. at 255.

Second, when the guidelines do not by their own terms show a significant risk, plaintiffs “must

demonstrate, by evidence drawn from the [guideline’s] practical implementation by the agency

charged with exercising discretion, that its application will result in a longer period of incarceration

than under the earlier [guidelines].” Id.; see also Dyer, 465 F.3d at 291 (observing that “even when

considering substantive changes to parole provisions, the Supreme Court has relied on evidence of

actual disadvantage” to the plaintiff). Plaintiffs need not show an actual increase in punishment, but

rather a “sufficient risk” of increased punishment. Dyer, 465 F.3d at 288.

We hold that on this record, plaintiffs have not shown that a genuine issue of material fact

exists regarding whether the retroactive application of the 1998 guidelines, either on their terms or

as applied to plaintiffs, creates a “sufficient risk of increasing the measure of punishment attached

to the covered crimes.” Garner, 529 U.S. at 250. First, although plaintiffs cite Garner in their brief,

they make no argument in the section of their brief devoted to their ex post facto claim that the

guidelines create a sufficient risk of increasing the length of imprisonment for plaintiffs.

Moreover, the disparity among members in the plaintiff class precludes a uniform analysis

of their ex post facto claims. Prior to 1987, no guidelines were issued to guide the parole board’s

discretion in making sentencing determinations. In 1987, the parole board adopted guidelines to

assist it in exercising its discretion. See State v. Capots, 546 N.E.2d 412 (Ohio 1989). Eleven years

later, in 1998, the OAPA adopted the guidelines at issue here, replacing the 1987 guidelines. The

purported class of plaintiffs, however, includes members who were convicted before the 1987

guidelines were adopted, as well as members who were convicted after the 1987 guidelines were

enacted. For plaintiffs who were convicted before the 1987 guidelines were in effect, the relevant

No. 06-3595 Michael, et al. v. Ghee, et al. Page 11

ex post facto inquiry is whether the present guidelines create a sufficient risk of increased

punishment compared to the pre-1987 standards; for plaintiffs convicted after 1987, the comparison

is between the 1987 guidelines and the 1998 guidelines. Although the parties have included the

1998 guidelines in the joint appendix, the 1987 guidelines are not included.

Similarly, because plaintiffs’ motion for class certification has not been granted, they must

demonstrate that a genuine issue of material fact exists as to whether each individual plaintiff faces

a significant risk of increased incarceration due to the application of the 1998 guidelines. Yet, on

appeal, plaintiffs have not attempted to show how any one individual defendant faces a substantial

risk of serving more time under the new guidelines.

Finally, plaintiffs point to three pages of charts and graphs in the record, which compare the

amount of time served under the 1998 guidelines to the minimum sentence assigned by the trial

court.7 These statistics fail to support plaintiffs’ claim in two ways. First, the sample group of

inmates apparently does not distinguish between inmates sentenced before and after the 1987

guidelines. Second, the statistics purport to show only that inmates sentenced under the 1998

guidelines are likely to wait until after their minimum sentences have expired before receiving their

initial parole hearing, are likely to receive sentences and projected sentences that exceed the

minimum sentence, and are likely to receive sentences and projected sentences that exceed even the

sentences recommended by the guidelines. Plaintiffs assert that they would have received their

initial parole hearings earlier and would have ultimately received shorter sentences under pre-1998

practices, but have not pointed to any evidence in the record whatsoever regarding pre-1998

practices. Without any evidence of how current parole practices differ from pre-1998 practices,

plaintiffs cannot establish a violation of the Ex Post Facto Clause.

Moreover, even if plaintiffs’ statistical study purported to show that inmates served longer

sentences under the 1998 guidelines than they would have before 1998, such results would be

unsurprising in light of Layne. In Layne, the plaintiffs were Ohio inmates whose convictions were

based on plea agreements in which the inmate pleaded guilty to lesser-included charges in exchange

for the state’s dismissal of the most serious charge on the indictment. When the plaintiffs first

became eligible for parole after the adoption of the 1998 guidelines, the inmates were assigned

criminal history points based on the crimes for which they were originally indicted, rather than the

crimes for which they were ultimately convicted. Id. at 551. This resulted in the plaintiffs receiving

an applicable guidelines range that provided for parole eligibility later than the inmate’s minimum

sentence. Id. at 555. The Ohio Supreme Court held that this practice breached the inmate’s plea

agreements and rendered meaningless former OHIO REV. CODE § 2967.13, which provided that an

inmate “becomes eligible for parole at the expiration of his minimum term.” Id. The court held

further that “in any parole determination involving indeterminate sentencing, the APA must assign

an inmate the offense category score that corresponds to the offense or offenses of conviction.” Id.

Plaintiffs here do not specify whether the sample size of their study post-dates Layne and, thus,

whether the guidelines as now practiced have the effect of delaying initial parole hearings.

Furthermore, plaintiffs’ study does not purport to show whether inmates actually serve more time

under the 1998 guidelines than under the former system.

Given these deficiencies in plaintiffs’ proofs, we conclude that plaintiffs have not raised a

genuine issue of material fact regarding whether the retroactive application of the 1998 guidelines

creates a substantial risk of increased punishment for any member of the class. We therefore affirm

7

The study was apparently performed by plaintiffs’ attorney Sirak, who pulled 600 cases and encoded each

inmate’s offenses under one of seven categories: (1) sex crimes, (2) homicide, (3) drugs, (4) property crimes, (5) assault,

(6) kidnapping, and (7) child endangerment. Dr. Martin Schwartz was retained by plaintiffs and opined that the 600

sample size of Sirak’s study is statistically similar to the rest of the sample of cases, and that “any statistics run on this

set of 600 cases can be taken as representative of the full group of cases.”

No. 06-3595 Michael, et al. v. Ghee, et al. Page 12

the district court’s alternate holding and its entry of summary judgment to defendants on plaintiffs’

ex post facto claims.

VII.

One last issue merits our attention. Plaintiffs assert that “[a]n entire class action lawsuit

seeking habeas corpus relief has fallen through the cracks, drawing no comment at all.” From this

and other comments made at oral argument, it appears that plaintiffs believe that, in addition to their

§ 1983 action, they have filed a petition for a writ of habeas corpus based on issues related to

Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). The

source of this belief appears to be plaintiffs’ “Supplemental Pleading Pursuant to Rule 15(d),” filed

in the district court on May 24, 2005. In appropriate circumstances, a party may, with permission

of the court, “serve a supplemental pleading setting forth transactions or occurrences or events

which have happened since the date of the pleading sought to be supplemented.” FED. R. CIV. P.

15(d). Plaintiffs attempted to take advantage of Rule 15 by filing a supplemental pleading that

referenced Blakely and Booker. Plaintiffs appear to believe that they stated additional claims in their

supplemental pleading – claims unaddressed by the district court.

Plaintiffs’ belief is mistaken. First, plaintiffs did not set forth any new “transactions or

occurrences or events” in their supplemental pleading, but instead attempted to allege additional

claims for relief based on the same events underlying their original pleading. A Rule 15(a) motion

for leave to amend the complaint, not a Rule 15(d) motion to supplement the pleading, is the

appropriate mechanism through which a party may assert additional claims for relief. See United

States v. Hicks, 283 F.3d 380, 385-86 (D.C. Cir. 2002) (“The question in this case is whether

intervening judicial decisions are the sort of ‘occurrences or events’ to which Rule 15(d) refers. We

think not. The purposes to which the rule is typically put support the conclusion that the appropriate

bases for supplemental pleadings are new facts bearing on the relationship between the parties,

rather than merely changes in law governing those facts.”). Second, a review of the “Supplemental

Pleading Pursuant to Rule 15(d)” indicates that it did not state any new claims, but instead merely

discusses habeas corpus relief and describes the circumstances of a number of named plaintiffs.

Because plaintiffs abused Rule 15(d) and did not state any new claims in their supplemental

pleading, plaintiffs never properly filed their purported “class action seeking habeas corpus relief.”

Accordingly, we conclude that the district court did not err in declining to address plaintiffs’

purported habeas claims.

VIII.

For the reasons set forth above, we affirm the judgment of the district court.