Wilfred Holmes v. Christopher Christie

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-1089

____________

WILFRED LEE HOLMES,

Appellant

v.

N.J. GOV. CHRISTOPHER J. CHRISTIE, both individually

and in his official capacity as the Governor of the State of

New Jersey; DAVID W. THOMAS, both individually and in

his official capacity as the executive director of the N.J. State

Parole Board; JAMES T. PLOUSIS, both individually and in

his official capacity as chairman of the N.J. State Parole

Board; SAMUEL PLUMERI, JR., both individually and in

his official capacity as vice-chairman of the N.J. State Parole

Board; STUART RABNER, both individually and in his

official capacity as the chief justice of the Supreme Court;

CARMEN MESSANO, both individually and in her official

capacity as the acting presiding judge for the administration

for the Superior Court of New Jersey, Appellate Division;

MARGARET M. HAYDEN; JOHN R. TASSINI, both

individually and in their official capacities as judges of the

Superior Court, Appellate Division

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. No. 2:16-cv-1434)

District Judge: Honorable Esther Salas

____________

Argued March 16, 2021

Before: KRAUSE, PHIPPS, and FUENTES, Circuit Judges

(Opinion Filed: September 22, 2021)

Julie Michalski

Steptoe & Johnson

227 West Monroe Street

Suite 4700

Chicago, IL 60606

Steven Reed

Jessica I. Rothschild

Mark C. Savignac [Argued]

Steptoe & Johnson

1330 Connecticut Avenue, N.W.

Washington, DC 20036

Pro Bono Counsel for Appellant

Deborah A. Hay [Argued]

Christopher C. Josephson

Office of the Attorney General of New Jersey

25 Market Street

Richard J. Hughes Justice Complex

8th Floor, West Wing

Trenton, NJ 08625

Counsel for Appellees

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OPINION OF THE COURT

____________

KRAUSE, Circuit Judge.

The Ex Post Facto Clause prevents the government

from increasing a prisoner’s punishment retroactively. This

case requires us to decide whether the Clause permits New

Jersey to retroactively enforce certain parole rules. To answer

that question, we look to the rules’ “practical effect” on each

inmate’s chances of receiving early release. Richardson v. Pa.

Bd. of Prob. & Parole, 423 F.3d 282, 290 (3d Cir. 2005). For

2

many prisoners, no doubt, the rules present at most a remote

risk to their parole prospects. For the Appellant here, however,

the change plausibly produced a significant risk of prolonging

his time behind bars. Thus, we vacate the District Court’s

dismissal order, reinstate Appellant’s ex post facto claim, and

remand for discovery.

I. Background

A. New Jersey’s Parole System

Before turning to the facts of this case, we introduce

New Jersey’s parole system. Since its inception, that system

has featured two types of parole hearings: initial hearings and

successive hearings. When a prisoner first becomes eligible

for release, New Jersey’s Parole Board holds a hearing, decides

whether to grant parole, and, if it declines to do so, sets a date

to revisit its decision. See N.J. Stat. Ann. § 30:4-123.53(a)

(2011). In the course of these initial hearings, the Board may

consult any information it deems relevant, including an

inmate’s criminal history. See id.

Before 1997, however, a different set of evidentiary

rules governed successive parole hearings. Under those rules,

the Board could not consider old information,1 see id. § 30:4-

123.56(c) (1996), and instead based successive parole

decisions “strictly on information developed since the previous

denial of parole,” Assembly Law and Public Safety

Committee, Statement to Assembly Bill No. 21 (Mar. 3, 1997).

In practice, this prevented the Board from taking account of

inmates’ criminal history—often the most damaging aspect of

their records—after the initial hearing.

The change wrought in 1997 had its roots in the early

1990s when many states moved to recalibrate their parole

regimes. See, e.g., Mickens-Thomas v. Vaughn, 321 F.3d

374, 380 (3d Cir. 2003) (describing the impetus behind

contemporaneous changes in Pennsylvania’s parole law). Not

1

New Jersey’s 1948 Parole Act governs Holmes’s

case. Although New Jersey repealed that statute in enacting

its 1979 Parole Act, “the standards of the 1979 and 1948 Acts

are identical with respect to inmates convicted before 1979.”

Royster v. Fauver, 775 F.2d 527, 535 (3d Cir. 1985).

3

content to sit on the sidelines, New Jersey’s then-Governor

appointed a Commission to study the state’s parole system

and propose reforms. The history from that point on is

described in detail in Trantino v. New Jersey State Parole

Board—a seminal state court opinion in which the Superior

Court’s Appellate Division upheld that change under the Ex

Post Facto Clause as merely “procedural” and not

“substantive.” 752 A.2d 761, 780–82 (N.J. Super. App. Div.

2000).

According to the Appellate Division, the purpose of

the Commission was to “recommend legislation that would

‘enlarge the discretion of the Board to deny parole,’” and the

Commission’s final report documented the practical effects of

the rule against considering old information in successive

hearings. Id. at 780 (quoting James Holzapfel, et al., Final

Report of the Study Commission on Parole (Dec. 1996),

[hereinafter, Final Report]2). Among those effects were that

“‘the Board [wa]s effectively required to grant parole, even

though the inmate may not be rehabilitated.’” Id. (quoting

Final Report at *21). And because the Commission ranked

the rule as “one of the most significant and inappropriate

limitations that existing law place[d] on the Board’s

discretion,” it urged New Jersey’s legislature to relax the rule

and allow the Parole Board to examine “all relevant

information” at every hearing. Id. (internal quotation marks

omitted) (quoting Final Report at *21–22).

B. The 1997 Amendments

Just a few months after the Commission released its

Final Report, the New Jersey legislature implemented its

recommendations in the 1997 Amendments to the Parole Act.

See 1997 N.J. Sess. Law Serv. ch. 213. Two of those

amendments undergird this appeal:

• The All-Information Provision: Consistent with the

Commission’s recommendation, the Amendments

eliminated the prohibition against reviewing old

information. Compare N.J. Stat. Ann. § 30:4-123.56(c)

2

The Final Report is available at:

https://dspace.njstatelib.org/xmlui/bitstream/handle/10929/18

629/P9591996a.pdf.

4

(2011), with N.J. Stat. Ann. § 30:4-123.56(c) (1996).

Under the new regime, the Board enjoys free rein to revisit

an inmate’s criminal history during successive hearings.

• The Risk-Assessment Requirement: The Amendments

also instructed the Board to prepare an “objective risk

assessment” before every parole hearing, including

successive hearings. N.J. Stat. Ann. § 30:4-123.52(e)

(2001). This assessment must incorporate old

information—including an inmate’s “educational and

employment history” and “family and marital history”—

along with any other “static and dynamic factors which may

assist the [B]oard.” Id.

Since 1997, the Board has applied these changes to all

prisoners, including those convicted before the Amendments

came into force.3 See Trantino, 752 A.2d at 781.

C. This Lawsuit

Appellant Wilfred Lee Holmes is no stranger to New

Jersey’s parole system.4 When Holmes was on parole in the

early 1970s, he killed two acquaintances, carried out the

3

The Amendments also adjusted the standard governing

parole requests. Before 1997, the Board could deny parole

only if “a preponderance of the evidence” showed “a

substantial likelihood that the inmate w[ould] commit a crime

. . . if released.” N.J. Stat. Ann. § 30:4-123.56(c) (1996).

Under the Amendments, however, the Board may refuse

release whenever “a preponderance of the evidence [indicates]

that the inmate has failed to cooperate in his or her own

rehabilitation or that there is a reasonable expectation that the

inmate will violate conditions of parole.” N.J. Stat. Ann.

§ 30:4-123.56(c) (2011). This change is not at issue here.

4

Because Holmes brought this appeal pro se, we invited

Steptoe & Johnson to serve as pro bono counsel. We express

our gratitude to Julie Michalski, Steven Reed, Jessica I.

Rothschild, Mark C. Savignac, and their firm for accepting this

matter pro bono, and we commend them for their excellent

briefing and argument. Lawyers who act pro bono fulfill the

highest service that members of the bar can offer to indigent

parties and to the legal profession.

5

execution-style murder of a 69-year-old, and wounded a police

officer who tried to arrest him. State courts subsequently

convicted Holmes of multiple homicides and sentenced him to

life in prison with the possibility of parole.

Forty-eight years and several parole hearings later,

Holmes remains behind bars. At the initial hearing, performed

in 2001, the Board refused to release Holmes and scheduled a

follow-up hearing for about a decade later. Then, in 2012, the

Board held the hearing that is the subject of this appeal.

To announce the results of that hearing, the Board

issued a detailed written statement. For the most part, the

statement examines evidence the pre-1997 rules would have

excluded. It probes Holmes’s past parole violations, highlights

the homicides that led to his life sentences, and scrutinizes the

shootout that preceded his arrest. Aside from analyzing this

old information, the statement also discusses Holmes’s 2012

interview with the Board, and his unblemished disciplinary

record since his initial parole hearing. Without spelling out

how much weight it placed on each of these factors, the Board

rejected Holmes’s request for release.

Convinced that the Board “should have considered only

‘new’ information,” Holmes implored New Jersey’s Appellate

Division to vacate the Board’s decision on ex post facto

grounds. Holmes v. N.J. State Parole Bd. (“Holmes I”), No. A-

1315-13T2, 2015 WL 4544689, at *7 (N.J. Super. App. Div.

July 29, 2015). But relying on Trantino, the Appellate

Division rebuffed Holmes’s claim and upheld the Board’s

decision in full.

Holmes then submitted a pro se complaint in federal

5

court. Though the complaint advanced at least a dozen

different claims, the District Court focused on two that are at

issue here. Holmes v. Christie (“Holmes II”), No. 16 Civ. 1434

(ES) (MAH), 2018 WL 6522922, at *1 (D.N.J. Dec. 12, 2018).

The first challenged the Board’s retroactive application of the

1997 Amendments as contrary to the Ex Post Facto Clause.

It is undisputed that Holmes’s claims may be raised in

5

a civil rights complaint under 42 U.S.C. § 1983, rather than in

a habeas petition. See Wilkinson v. Dotson, 544 U.S. 74, 81–

82 (2005).

6

J.A. at 34. In his complaint, Holmes explicitly cited the

Appellate Division’s decision in Trantino as “not[ing]” that the

“express intent of the [1997] [A]mendment[s]” was to make it

more difficult for prospective parolees to earn parole. J.A. at

30. Having clearly understood the nature of the claims Holmes

was raising, the District Court reviewed the relevant case law

and identified that New Jersey courts had already concluded

that Trantino foreclosed Holmes’s ex post facto claim. Holmes

II, 2018 WL 6522922, at *2 (quoting Holmes I, 2015 WL

4544689, at *7 (quoting Trantino, 752 A.2d at 681–82)). The

second criticized the Board’s approach as inconsistent with the

Due Process Clause. J.A. at 35. To right these alleged wrongs,

Holmes requested that the Board hold a new parole hearing

without examining old information.

But when the Government moved to dismiss Holmes’s

claims, the District Court assented.6 Notwithstanding the

Appellate Division’s acknowledgement that the Board was

“effectively required to grant parole” prior to the 1997

Amendments, Trantino, 752 A.2d at 780, as a practical matter

the District Court rejected the ex post facto claim, reasoning

that the “Board’s consideration of factors [related to]

recidivism was consistent with the goals of either version of

the [New Jersey] statute,” Holmes II, 2018 WL 6522922, at *6.

In denying the due process claim, the Court observed that

Holmes had received all procedural protections the

Constitution requires.

This timely appeal followed.

II. Ex Post Facto Claim7

The central question presented is whether the Board’s

decision conflicts with the Ex Post Facto Clause. Answering

6

The complaint names numerous New Jersey officials

as Defendants. For the sake of simplicity, we refer to them

collectively as the “Government.”

7

The District Court retained jurisdiction under 28

U.S.C. § 1331, and we wield jurisdiction under 28 U.S.C.

§ 1291. We exercise plenary review over a district court’s

dismissal of claims under Rule 12(b)(6), see Geness v. Cox,

7

that question takes us on a journey with three stages. We first

familiarize ourselves with the constitutional landmarks that

guide our analysis. Following those landmarks, we find that

Holmes’s claim merits discovery. And with our own sojourn

complete, we chart where the Government’s counterarguments

stray off course.

A. Constitutional Landmarks

Before setting out, we sketch the key features of what

for many represents an unfamiliar legal landscape. Though the

Ex Post Facto Clause rarely appears in casebooks or civics

classrooms, the Framers ranked it among the Constitution’s

most fundamental guarantees. See The Federalist No. 44, at

282 (C. Rossiter ed. 1961) (James Madison); id. No. 84, at 511

(Alexander Hamilton). The Clause continues to serve vital

purposes today. It prohibits legislatures from “enacting

arbitrary and vindictive” laws that target disfavored groups.

Miller v. Florida, 482 U.S. 423, 429–30 (1987), abrogated on

other grounds by Cal. Dep’t of Corr. v. Morales, 514 U.S. 499,

506–07 n.3 (1995); see also Peugh v. United States, 569 U.S.

530, 541 n.4 (2013). It promotes the separation of powers “by

confining the legislature to penal decisions with prospective

effect and the judiciary and executive to applications of

existing penal law.” Weaver v. Graham, 450 U.S. 24, 29 n.10

(1981). And it provides citizens with “fair warning” as to a

crime’s “effective sentence.” Id. at 28, 32.

To achieve these ends, the Clause extends to some

“changes in laws governing parole of prisoners.” Garner v.

Jones, 529 U.S. 244, 250 (2000). At the Founding, long prison

sentences were unusual, and parole was almost unknown. See

Daniel S. Medwed, The Innocent Prisoner’s Dilemma:

Consequences of Failing to Admit Guilt at Parole Hearings,

93 IOWA L. REV. 491, 498 (2008); Will Tress, Unintended

Consequences: Defining Felony in the Early American

Republic, 57 CLEV. ST. L. REV. 461, 468–70 (2009). In time,

many states embraced parole regimes, and “eligibility for

reduced imprisonment” emerged as a “significant factor” in a

902 F.3d 344, 353–54 (3d Cir. 2018), accepting the

complaint’s factual allegations as true and construing them in

the light most favorable to the non-moving party, see Weimer

v. County of Fayette, 972 F.3d 177, 180 (3d Cir. 2020).

8

defendant’s punishment. Lynce v. Mathis, 519 U.S. 433, 445–

46 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 32

(1981)). Thus, “an offender, prior to his conviction and

sentencing, is entitled to know not only his maximum possible

punishment, but also his or her chances of receiving early

release.” Mickens-Thomas, 321 F.3d at 392.

But the same logic that supports extending the Clause to

parole also limits its reach. When a parole rule produces a

“significant” risk of increasing a plaintiff’s time behind bars,

retroactively applying the rule frustrates fair notice, and thus

thwarts the Clause. Morales, 514 U.S. at 508. When a “minor”

change presents only a “remote risk of impact on a prisoner’s

expected term of confinement,” however, the Clause’s

purposes remain undisturbed. Id. A limit on “the hours that

prisoners may use the prison law library,” for example, poses

no ex post facto problem. Id. at 508–09. The “controlling

inquiry,” then, is whether a challenged rule “creates a

significant risk of prolonging [the plaintiff’s] incarceration.”

Garner, 529 U.S. at 250–51.

A plaintiff can satisfy this risk-based standard in two

ways. In some cases, the requisite risk is “inherent” in a new

rule, so that the government contradicts the Clause whenever

it enforces the rule retroactively. Id. at 251. In other cases,

though, “the rule [will] not by its own terms show a significant

risk.” Id. at 255. The question then becomes whether a

sufficient risk arises from the rule’s “practical

implementation.” Id. Which of these paths a plaintiff pursues

carries important consequences. The first path presents a

question of law courts can answer at the pleading stage; the

second implicates a fact-intensive inquiry that may require

discovery to resolve. Garner, 529 U.S. at 256 (remanding to

consider discovery because “[t]he record before the Court of

Appeals contained little information bearing on the level of risk

created by the change in law.”); Richardson, 423 F.3d at 291.

Few successful parole challenges follow the first path.

What defines most parole regimes—including New Jersey’s—

is that release decisions depend on “individualized[,]

discretionary appraisals.” Perry v. N.J. State Parole Bd., 208

A.3d 439, 443 (N.J. Super. App. Div. 2019) (internal quotation

marks and citation omitted). That means a parole rule’s

9

“practical effect” usually turns not on the rule’s terms, but on

how those terms are implemented. Richardson, 423 F.3d at

290.

This point is best illustrated by a pair of Supreme Court

cases. The more typical case, Garner, centered on a change in

the frequency of parole hearings. See 529 U.S. at 247. Before

the change, Georgia’s parole board considered each prisoner’s

case every three years; after the change, the board could wait

up to eight years between reviews. Garner, 529 U.S. at 254.

Rather than condemning the challenged rule as an “inherent”

ex post facto violation, the Court recognized that the rule’s

constitutionality hinged on the board’s “actual practices.” Id.

at 251, 256. Imagine, for instance, that the board exercised its

discretion to “expedite[ ] parole reviews in the event of a

change in [a prisoner’s] circumstance[s].” Id. at 254 (internal

quotation marks omitted). In that case, the rule would generate

“only the most speculative and attenuated possibility” of

prolonged imprisonment. Id. at 251 (internal quotation marks

omitted). So, the Court concluded, Garner’s ex post facto

claim rose or fell based on the rule’s “practical

implementation.” Id. at 255.

While Garner represents the norm, Lynce represents the

exception. Under the early-release program Lynce reviewed,

Florida prisoners accrued release credits whenever “the

population of the state prison system exceeded predetermined

levels.” 519 U.S. at 435. Once the credits “resulted in [certain]

prisoners’ release from custody,” however, Florida cancelled

the program and re-arrested those who benefited from it. Id.

In these exceptional circumstances, the Court saw no need to

look beyond the new rule’s terms. Unlike a change in a

discretionary parole regime, the Court explained, cancelling

the credits “unquestionably disadvantaged [the prisoners]

because it resulted in [their] rearrest and prolonged [their]

imprisonment.” Id. at 446–47.

Read together, Garner and Lynce stand for a simple

proposition: A rule’s terms establish an ex post facto violation

only if they leave a parole board with little or no discretion.

Otherwise, a plaintiff must show that the rule’s implementation

presents a significant risk. With the risk-based standard as a

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compass, and with the two paths for satisfying that standard as

a map, we advance to the next stage of our analytical inquiry.

B. Holmes’s Claim

In challenging the Board’s parole decision, Holmes

launches a multi-pronged assault on the retroactive application

of the 1997 Amendments. His main thrust targets the all-

information provision. He also levels more cursory attacks on

the risk-assessment requirement. We address each argument

in turn.

1. The All-Information Provision

Holmes focuses most of his firepower on the all-

information provision. First, he insists that the provision’s

terms establish the requisite risk. Second, he argues that the

Board implemented the provision in a way that plausibly

conflicts with the Clause. As we explain, the first theory

founders, but the second succeeds.

a) Terms

Our initial inquiry is whether the all-information

provision’s terms produce a significant risk. In principle, the

provision empowers the Board to examine old information

during successive parole hearings. See N.J. Stat. Ann. § 30:4-

123.56 (2011). In practice, it enables the Board to entertain

factors—especially an inmate’s criminal history—that often

militate against release. Thus, common sense suggests the

provision will sometimes prompt the Board to deny parole

when it might otherwise have granted release.

But whether that risk materialized in Holmes’s case

depends on how the Board implements the all-information

provision. Perhaps the Board continues its past practice of

treating new information as dispositive. Perhaps the Board

prioritizes old information that helps prisoners, such as family

or educational history.8 Or perhaps Holmes has committed

8

Because the 1997 Amendment requires release

“unless” evidence before the Board justifies continued

confinement, Holmes maintains that the Board can consult

11

new disciplinary infractions that the Board views as

foreclosing release, no matter what old information it

considers. We cannot rule out these and other possibilities

without reviewing “at least some evidence,” Richardson, 423

F.3d at 293, as to “the manner in which [the Board] is

exercising its discretion,” Garner, 529 U.S. at 256.

The upshot is that this review of the all-information

provision’s terms leads to a dead-end. Whether the provision’s

retroactive application passes constitutional muster depends

not on its terms, but on how the Board implements them.

b) Implementation

With Holmes’s initial theory out of the picture, we come

to the crux of this case. To prevail here, Holmes must establish

that the Board implemented the all-information provision in a

way that created a significant risk of prolonging his

imprisonment. See id. at 255. This is a “fact-intensive

inquiry,” Richardson, 423 F.3d at 291, but to survive a motion

to dismiss, he “need only show that his ex post facto claim—

like any other claim—is ‘plausible,’” Daniel v. Fulwood, 766

F.3d 57, 61–62 (D.C. Cir. 2014) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)).

Holmes easily clears that hurdle, especially when his

complaint is “liberally read under the relaxed standards

applicable to a pro se complaint.” Tunnell v. Wiley, 514 F.2d

971, 974 (3d Cir. 1975). To demonstrate that the provision

harmed him, he marshals two types of support: The Board’s

written statement and its historical practices. The statement

suggests that old information influenced the Board’s decision

“in [Holmes’s] case.” Richardson, 423 F.3d at 293. And as a

historical matter, he plausibly alleges that “similarly situated

only old information that harms prisoners. N.J. Stat. Ann.

§ 30:4-123.56(c) (2011). But Holmes’s conclusion does not

follow from his premise. The word “unless” establishes that

the aggregate evidence before the Board must weigh against

release, not that every individual piece of evidence must do so.

Indeed, the Board’s own regulations authorize the review of

some categories of old information—such as inmates’ military

service—that normally favor release. See N.J. Admin. Code

§ 10A:71-3.11(b)(18).

12

inmates” tended to win release before the all-information

provision came into effect. Newman v. Beard, 617 F.3d

775,786 (3d Cir. 2010). At the pleading stage, then, Holmes’s

claim survives dismissal.

i. The Board’s Written Statement

To explain why it refused to release Holmes, the Board

prepared a ten-page written statement.9 The statement does not

spell out how much weight the Board placed on old

information. But a reasonable reading of the statement’s

structure and substance reveals that Holmes’s criminal history

played an important part in the result, plausibly alleging that

consideration of that history created a significant risk of

prolonging his imprisonment.

We start with structure. Three structural features signal

that old information influenced the Board’s inquiry. First, the

bulk of the statement—more than five of its ten pages—trains

on Holmes’s criminal history. Second, the statement does not

designate that history as background, but instead includes it in

the same section as its other analysis. Finally, of six headers

summarizing why the Board refused to release Holmes, five

rest on old information. For example, the statement

underscores the “increasingly more serious” nature of

Holmes’s crimes, his track record of “commit[ing] new

offenses” while on parole, and the failure of prior

incarcerations to “deter [his] criminal behavior.” J.A. at 46–

48. In combination, these structural features make it

reasonable to infer that Holmes’s criminal history contributed

to the Board’s conclusion.

That inference finds support in the decision’s substance.

Recall that New Jersey’s Parole Act tasks the Board with

predicting whether Holmes “will commit a crime . . . if

9

The statement purports to summarize the Board’s

“reasons for establishing a future parole eligibility date outside

of the administrative guidelines,” J.A. at 45, but the parties

agree that it also explains the parole denial.

13

released.”10 N.J. Stat. Ann. § 30:4-123.56(c) (1996). If

someone set out to construct a criminal history that portends

future crimes, it might look a lot like Holmes’s. First in 1963,

then in 1965, and again in 1968, 1969, 1970, 1971, and 1972,

Holmes won early release, only to violate the conditions of his

parole. And each time he was freed, he committed more

serious offenses, culminating in a series of homicides. It is

plausible that this pattern of escalating parole violations

prompted the Board to conclude that Holmes would commit

yet another crime if released.

In an ordinary case, a parole board’s careful scrutiny of

a prisoner’s past conduct upon early release would provide a

reason to uphold the board’s decision, not to question its

constitutionality—particularly where the board’s stated goal is

to identify a “substantial likelihood that the inmate will commit

a crime . . . if released.” N.J. Stat. Ann. § 30:4-123.56(c)

(1996). But at the time of Holmes’s crimes, New Jersey

forbade its Board from examining criminal history during

successive parole hearings. See id. The Board’s detailed

discussion of Holmes’s history demonstrates that it

retroactively applied the 1997 Amendments to Holmes in

denying him parole, plausibly substantiating the risk that the

all-information provision had the “practical effect” of

extending his imprisonment. Richardson, 423 F.3d at 289.

ii. The Board’s Historical Practices

Our review of the Board’s written decision establishes

that the retroactive consideration of Holmes’s past conduct

plausibly “create[d] a significant risk of prolonging [his]

incarceration.” Garner, 529 U.S. at 250–51. But rather than

rely on the Board’s statement alone, Holmes also argues that

similarly-situated prisoners tended to win release before 1997.

That conclusion is bolstered by Trantino and the Final Report.

Recall that the purpose of the Commission was to “enlarge the

discretion of the Board to deny parole,” and it recommended

eliminating the old parole rules specifically because those rules

“effectively required [the Board] to grant parole” unless an

inmate had committed “institutional infractions . . . since his or

10

It is undisputed that this standard, excerpted from the

pre-1997 rules, governed the Board’s decision in Holmes’s

case. See Holmes I, 2015 WL 4544689, at *4.

14

her last review.”11 Trantino, 752 A.2d at 780 (emphasis added)

(quoting Final Report at *21). Because Holmes had remained

“infraction free” after his initial hearing, J.A. at 52, these

findings suggest that he would have enjoyed strong parole

prospects under the pre-1997 rules.

This inference is corroborated, at least to some extent,

by an improvised data set that Holmes cites in his pro se

complaint. Drawing on a string cite in a New Jersey Supreme

Court opinion, Holmes identifies a group of felons who were

sentenced to death before the 1970s and then had their

sentences reduced to life in prison when New Jersey abolished

the death penalty. J.A. at 15 (citing Trantino v. N.J. State

Parole Bd., 764 A.2d 940, 947 n.2 (N.J. 2001); see also State

v. Funicello, 286 A.2d 55, 58–59 (N.J. 1972). Holmes points

out that under a parole scheme where the Board could not

consider prospective parolees’ criminal history, these serious

offenders were able to earn parole after fewer than 20 years in

prison. From here, Holmes—who has spent many more years

in prison—argues that had the Board limited its consideration

to only new developments since his last hearing, he too could

have earned parole already. Thus, we understand Holmes to

allege that had he received similar treatment, it is plausible that

he would have won release at the 2012 hearing.

Unwilling to accept this point, the Government names

twenty-two “convicted murderers” who received life sentences

before the 1997 Amendments, obtained parole afterwards, and

11

While the Commission’s report casts new infractions

as the sole basis for a successive parole denial under the pre-

1997 rules, the Government counters that the Board sometimes

refused release based on psychological assessments. But the

cases the Government cites concern parole hearings held after

the 1997 Amendments came into effect. Those authorities

therefore shed little light on the Board’s practices before the

Amendments. In any event, the Commission’s central

finding—that the grounds for a successive parole denial were

extremely limited under the old rules—remains unchallenged.

15

did so about as quickly as the death-row inmates.12 Answering

Br. at 25. If these prisoners represent the broader population

of New Jersey homicide offenders, their experience implies

that the Amendments made little difference to the Board’s

propensity to grant parole. But if the Government selected

these offenders because they secured release relatively

quickly, their experience tells us nothing about the

Amendments’ implementation. And, although we invited the

Government to clarify how it created this list, it demurred.

This failure to contextualize the data leaves us no choice but to

discount it.

None of this is to say that Holmes has conclusively

established the requisite risk. To the contrary, all of his

evidence is susceptible to multiple interpretations. Maybe the

Commission overstated the practical effect of the pre-1997

rules on the practice of the Parole Board generally, or the

death-row data is incomplete or otherwise misleading. After

all, we observed in Royster that “the standards of the 1979 and

1948 Acts are identical with respect to inmates convicted

before 1979.” 775 F.2d at 535. Maybe in Holmes’s particular

case, the Board assigned less weight to old information than

the written statement’s structure and substance suggest. At this

stage, however, our obligation is to draw all reasonable

inferences in Holmes’s favor. See Daniel, 766 F.3d at 61–62.

When we do, Holmes’s complaint and the documents it

incorporates by reference tell a plausible story: The old rules

protected prisoners from repeated parole denials based on their

criminal history; the 1997 Amendments removed that

protection; and the Board relied partly on Holmes’s history in

refusing to release him. So, while Holmes’s attack on the all-

information provision’s implementation may hit rough water

in discovery, it finds shelter enough to survive the

Government’s motion to dismiss and to undergo discovery,

which the District Court may wish to sequence, see Fed. R.

Civ. P. 26(d)(3), as to the practical effect of the pre-1997 rules,

12

According to the Government, this list draws on data

from the New Jersey Department of Corrections website.

Whether to take judicial notice of that data is not a question we

need to decide today, because even if we did so, it would not

change our conclusion.

16

the Board’s consideration of past conduct in Holmes’s case,

and whether their consideration created a significant risk of

prolonging his imprisonment relative to the old rules.

2. The Risk Assessment-Requirement

Apart from installing the all-information provision, the

1997 Amendments also instruct the Board to prepare “an

objective risk assessment” before every parole hearing,

including successive hearings. N.J. Stat. Ann. § 30:4-

123.52(e). Each assessment must survey an inmate’s

“educational and employment background” and “family and

marital history,” among other factors. Id. What this means in

practice is that assessments often place old information before

the Board. Holmes therefore argues that retroactively applying

the risk-assessment requirement contradicts the Clause.

We need not tarry long over this theory. To sustain it,

Holmes must show that either the risk-assessment

requirement’s terms or its implementation “individually

disadvantaged” him. Richardson, 423 F.3d at 294. He has

done neither.

There is no serious argument that the risk-assessment

requirement’s text establishes the requisite risk. See Garner,

529 U.S. at 255. By design, the requirement directs the Board

to produce a new assessment of an inmate’s psychological state

before each successive parole hearing. See N.J. Stat. Ann.

§ 30:4-123.52(e). That the assessments draw on a variety of

sources, including old information, is not decisive. A current

assessment of an inmate’s recidivism risk has always been part

of the parole process. See N.J. Stat. Ann. § 30:4-123.56(c)

(1996); see also Greenholtz v. Inmates of Neb. Penal and Corr.

Complex, 442 U.S. 1, 10 (1979) (defining parole as an

“assessment of . . . what a man is and what he may become”)

(internal quotation marks and citation omitted).

It is conceivable, of course, that the Board implemented

the risk-assessment requirement in a way that harmed Holmes.

If an assessment recites old information, and if the Board

fixates on that information, an inmate might have a plausible

ex post facto claim. Here, however, the Board’s written

statement says nothing about old information embedded in the

risk assessments—indeed, it does not discuss the assessments

17

at all. See J.A. at 45–54. Without more, we cannot conclude

that the risk-assessment requirement played any role, let alone

a “significant” one, in the Board’s calculus. Garner, 529 U.S.

at 255.

Where does that leave us? Of the many theories Holmes

floats, only one merits discovery. The risk-assessment

requirement fails to support a viable claim. The same is true

of the all-information provision’s terms. But that provision’s

implementation is a different story. As the Board’s written

statement and historical practices attest, the provision plausibly

created a significant risk of prolonging Holmes’s

imprisonment. Having shown how Holmes’s claim reaches

safe harbor, all that remains is to locate where the Government

loses its way.

C. The Government’s Counterarguments

In urging us to chart a different course, the Government

advances two arguments.13 In the first, it invites us to classify

the 1997 Amendments as procedural changes exempt from ex

post facto scrutiny. In the second, the Government submits

that but for the 1997 Amendments, the Board would still have

refused to release Holmes. Neither proposal is compatible with

our precedents.

1. The Substantive-Procedural Distinction

The Government’s initial argument borrows from a line

of New Jersey Appellate Division cases. Under the Appellate

Division’s approach, retroactively enforcing a “substantive”

rule offends the Clause, but doing the same with a “procedural”

rule does not. See Trantino, 752 A.2d at 780–81. Because the

1997 Amendments expand the evidence available to the Board,

the Appellate Division deems them a “procedural

13

The Government declines to defend the District

Court’s rationale for dismissing Holmes’s ex post facto claim.

In rejecting that claim, the Court noted that “the Parole Board’s

consideration of factors that suggest recidivism was consistent

with the goals of either version of the statute.” Holmes II, 2018

WL 6522922, at *6. But our jurisprudence hinges on whether

a new rule creates a significant risk of extended imprisonment,

not on whether it aligns with broad penological principles.

18

modification” that lies outside the Clause’s reach. Id. at 781.

This logic led the Appellate Division to dismiss Holmes’s ex

post facto challenge, and the Government implores us to adopt

a similar approach here. But a test that formalistically

distinguishes between substantive rules and procedural ones

finds no foundation in controlling cases or the functional

approach that animates them.

A review of three leading cases reveals that a challenged

rule’s constitutionality hinges on its effect, not its form. In

Morales, the Supreme Court scrutinized a rule’s “effect on [a]

prisoner’s actual term of confinement.” 514 U.S. at 512

(emphasis added). In Richardson, we treated a rule’s “practical

effect” as the touchstone of our inquiry. 423 F.3d at 291. And

in Garner, the Supreme Court addressed a rule it described as

“procedural”—yet that label played no part in the Court’s

reasoning or result. 529 U.S. at 251, 254.

Not only do controlling cases eschew formalist

approaches generally, they expressly reject the specific tack the

Government takes here. More than a century ago, the Court

resolved a pair of ex post facto cases by deciding whether the

challenged rules assumed substantive or procedural form. See

Kring v. Missouri, 107 U.S. 221, 224 (1883); Thompson v.

Utah, 170 U.S. 343, 351–52 (1898). But the Court has long

since overruled those cases and renounced their reasoning. See

Collins v. Youngblood, 497 U.S. 37, 46 (1990) (“[B]y simply

labeling a law ‘procedural,’ a legislature does not thereby

immunize it from scrutiny under the Ex Post Facto Clause.”)

(citation omitted)). Time and again, the Court has refused “to

define the scope of the Clause along an axis distinguishing

between laws involving ‘substantial protections’ and those that

are merely ‘procedural.’” Carmell v. Texas, 529 U.S. 513, 539

(2000). Instead, the “controlling inquiry” is whether a law

“creates a significant risk of prolonging [the plaintiff’s]

incarceration.” Garner, 529 U.S. at 250–51.14

14

Pennsylvania Prison Society v. Cortes is not to the

contrary. See 622 F.3d 215 (3d Cir. 2010). It is true that Cortes

condoned the dismissal of a claim partly because the

challenged rules were “procedural and thus not ex post facto

laws.” Id. at 234. But Cortes went on to clarify that the word

19

We appreciate that comity counsels caution before we

part ways with New Jersey’s Appellate Division. Yet few of

the Appellate Division’s cases grapple thoroughly with the Ex

Post Facto Clause. And, despite our best efforts, we see no

way to reconcile the Appellate Division’s formalist analysis

with the functional approach embodied in Morales,

Richardson, and Garner. So we cannot affirm on this basis.

2. The Board’s Review of New Information

The Government’s fallback position fares no better.

Had the Board restricted its review to new information, the

Government says, it would still have refused to release

Holmes. On the surface, this position seems to turn only on the

new information before the Board. On closer examination,

though, the Government’s argument enacts a subtle but

substantial shift in the governing standard. By framing the test

in terms of what the Board “would have” done, the

Government conflates a significant-risk with a but-for cause.

Arg. Tr. at 29. That contradicts controlling precedents, the

Clause’s purposes, and comity principles. See Morales, 514

U.S. at 509; Mickens-Thomas, 321 F.3d at 391–92. And when

we set aside the causation test, and instead focus on risk alone,

the Board’s review of new information fails to foreclose

Holmes’s claim.

a) Where the But-for Test Goes Awry

Three considerations convince us that a “but-for” test

has “no basis in federal ex post facto law.” Richardson, 423

F.3d at 292 n.5. First off, that test amounts to a more

demanding standard than one that turns on risk. To establish

but-for causation, a plaintiff must demonstrate that a new rule

probably accounted for an adverse parole decision. To satisfy

the risk-based standard, however, a plaintiff need only show a

“significant” possibility that a new rule prompted the parole

“procedure” serves as shorthand for rules that present a

“remote risk of impact on a prisoner’s expected term of

confinement.” Id. at 237 (quoting Morales, 514 U.S. at 508).

To the extent the Government construes Cortes more

broadly—as announcing an alternative to the risk-based

standard—its reading is inconsistent with Morales,

Richardson, and Garner.

20

denial. Morales, 514 U.S. at 509; Mickens-Thomas, 321 F.3d

at 392; see also Richardson, 423 F.3d at 292 (requiring a

“significant” effect, rather than a “determinative” one).

Confusing risk with causation thus artificially and

inappropriately raises the bar for ex post facto claims.

While the distinction between a significant risk and a

but-for cause may seem minor, it carries major consequences.

In parole cases, the Ex Post Facto Clause’s core mission is to

ensure defendants understand their “chances of receiving early

release” so “they can plea bargain and strategize effectively.”

Mickens-Thomas, 321 F.3d at 391–92. But the causation test

decouples our ex post facto analysis from this purpose.

Suppose, for example, that a rule cuts a prisoner’s chances of

release from 45% to 5%. That change would not constitute a

but-for cause of an adverse parole decision, but it could easily

inform a defendant’s trial and plea bargaining strategy. By

excluding this and similar scenarios from constitutional

protection, the causation test threatens to disable—or at least

diminish—one of the Clause’s central objectives.

Embracing a causation test would also endanger states’

authority over “confinement and release.” Garner, 529 U.S. at

252. Under a causation standard, federal courts would have to

predict not just whether a challenged rule might have been

significant, but whether it did control the outcome of a highly

individualized and discretionary state proceeding. And just as

federal courts’ reasoning would disturb state parole authority,

so too would their results. Whenever a court finds that a

change caused an adverse parole decision, the ensuing

judgment would amount to a declaration that the parole board

should grant release on remand.

In sum, the Ex Post Facto Clause takes risk, not

causation, as its touchstone. With that critical point clarified,

we can make short work of the Government’s argument that

new information dominated the Board’s decision.

b) Why the Board’s Review of New Information

Does Not Defeat Holmes’s Claim

If we translate the Government’s argument into the

register of risk, it fails. In staking out its position, the

Government seizes on two types of new information. First, the

21

Board received several risk assessments that rated Holmes as a

“high risk” of committing future crimes.15 J.A. at 40. Second,

during a 2012 interview, Holmes “minimize[ed]” his past

offenses and declined to accept “full responsibility” for them,

an attitude the Board viewed as militating against release. Id.

at 50–52. Taken together, the Government suggests, this new

information left Holmes with such low odds of release that the

Board’s review of old information made no real difference.

This argument runs aground on a fundamental principle

that undergirds the risk-based standard. To measure Holmes’s

chances of receiving release, we avoid “post hoc” speculation,

Mickens-Thomas, 321 F.3d at 387, and instead anchor our

analysis in the Board’s “policy statements” and “actual

practices,” Garner, 529 U.S. at 256. The Government

overlooks this crucial lesson.

Contrary to the Government’s suggestion, none of the

Board’s practices conclusively establish that new information

controlled its thinking. As noted, the written statement makes

no mention of the risk assessments the Government insists the

Board relied on. See Mickens-Thomas, 321 F.3d at 387, 389

(disregarding a “post hoc defense” that “did not appear in the

formal Board decisions”). And, although the statement does

discuss Holmes’s 2012 interview, it portrays that interview as

a small piece of a larger puzzle.

Nor is the interview’s substance so damaging as to

deprive Holmes of any real hope for release. However

disappointing, Holmes’s reluctance to accept “full

responsibility” for decades-old crimes bears only indirectly on

his propensity to commit future offenses. J.A. at 52; see N.J.

Stat. Ann. § 30:4-123.56(c) (1996). That leaves open the

possibility that other new information might have overcome

the 2012 interview and convinced the Board to grant relief. To

take one example, the Board’s statement highlights Holmes’s

flawless disciplinary record over many years in prison. So had

the Board restricted its review to that new information, a

reasonable inference—though not the only one—is that

Holmes’s perfect prison record could have outweighed his

15

For the sake of argument, we assume that the

assessments constitute “new information” under the pre-1997

rule. N.J. Stat. Ann. § 30:4-123.56(c) (1996).

22

imperfect interview responses. To hold otherwise would

disregard our pleading-stage duty to draw inferences in

Holmes’s favor, not the Government’s.

In the final analysis, then, neither counterargument

scuppers Holmes’s ex post facto challenge. The formalistic

substantive-procedural distinction collides with controlling

cases. And when we analyze the new information before the

Board under the rubric of risk, rather than causation, it fails to

foreclose Holmes’s claim. Central to our conclusion, however,

is that this case comes before us on the pleadings. With more

information about the Board’s decision here, and about its

practices more generally, the District Court may well reach a

different result on remand. Our journey today shows that

Holmes’s claim is seaworthy—not unsinkable.

III. Due Process Clause

To supplement his ex post facto claim, Holmes briefly

invokes the Due Process Clause. On his account, the Clause

mandates that parole decisions must be grounded in whatever

rules governed at the time a prisoner committed a crime. But

the Ex Post Facto Clause, not the Due Process Clause,

establishes the relevant framework for resolving challenges to

the retroactive application of new criminal rules.

Neither the Due Process Clause’s procedural

component nor its substantive one announces an anti-

retroactivity principle. When a state creates a liberty interest

in parole, as the Government concedes New Jersey did here,16

it cannot deprive prisoners of that interest without providing

certain procedural protections. See Greenholtz, 442 U.S at 13,

16. The problem is that none of those protections prohibits the

retroactive application of new rules. See id. As for the

Clause’s substantive component, it controls only when a parole

board considers a factor that “shocks the conscience.”

Newman, 617 F.3d at 782 (internal quotation marks and

citation omitted). And as our cases confirm, an inmate’s

criminal history represents a common component of parole

decisions, not a shocking or constitutionally-suspect one. See

16

We express no view as to the merits of the

Government’s concession.

23

Block v. Potter, 631 F.2d 233, 238 (3d Cir. 1980); Greenholtz,

442 U.S. at 15.

Extending the Due Process Clause to this domain also

poses serious practical problems. Should Holmes’s theory

prevail, the Clause would bar the retroactive application of any

new parole rule. This promises to transform the Due Process

Clause into an end-run around the Ex Post Facto Clause, which

bars only the retroactive application of rules that reflect a

“significant risk of increased punishment.” Richardson, 423

F.3d at 290. And because its roots lie in the Due Process

Clause, this sweeping anti-retroactivity principle might extend

not just to criminal cases, but also to civil ones. These

profound consequences may explain why we have not found—

and Holmes has not identified—any case invalidating the

retroactive application of a new rule on due process grounds.

The due process claim therefore finds no support in precedent

or pragmatism, and we affirm its dismissal.

IV. Conclusion

For the foregoing reasons, we will vacate the dismissal

of Holmes’s ex post facto claim, affirm the dismissal of his due

process claim, and, as noted supra, remand for discovery to

determine whether the retroactive application of the 1997

Amendments to Holmes “create[d] a significant risk of

prolonging [his] incarceration.” Garner, 529 U.S. at 251.

24