Robert Howard v. Kathleen Blanco

Case: 11-30919 Document: 00512248534 Page: 1 Date Filed: 05/21/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 21, 2013

No. 11-30919 Lyle W. Cayce

Clerk

ROBERT HOWARD,

Plaintiff - Appellant

v.

LARRY CLARK, Chairman of the Louisiana Board of Pardons; EUGENE

“POP” HATAWAY, Member of the Louisiana Board of Pardons; CLEMENT

LAFLEUR, Member of the Louisiana Board of Pardons; KENNETH A.

JONES, Member of the Louisiana Board of Pardons; HENRY W. POWELL,

Member of the Louisiana Board of Pardons; BOBBY JINDAL, Governor of the

State of Louisiana,

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

Before JOLLY, GARZA, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Robert Howard (“Howard”) is currently serving life sentences in Louisiana.

He has repeatedly sought to have his sentences commuted in order to become

eligible for parole, commutation being the first step in becoming eligible for

consideration for parole. After he was first convicted, Louisiana altered its

commutation process. This appeal addresses Howard’s complaint that the

application of the new process to him violates the ex post facto provisions of the

United States and Louisiana Constitutions in two ways: (1) by vesting the Board

Case: 11-30919 Document: 00512248534 Page: 2 Date Filed: 05/21/2013

No. 11-30919

with new authority, in certain circumstances, to refuse to grant a hearing to an

applicant for commutation; and (2) by increasing the time he must wait between

filing applications for commutation from one or two years following the last

action by the Board to five years. Each of these factors, Howard argues,

increases his risk of punishment by rendering the commutation process more

burdensome. The district court granted summary judgment to the defendants,

finding Howard could not establish an ex post facto violation. We AFFIRM.

I.

Howard has been in prison a long time. More than forty years have come

and gone since Howard pled guilty to murder and received a sentence of life

imprisonment in 1968. Howard did not help himself when, three years later, he

stabbed another inmate at the penitentiary, was convicted of murder, and

received a second life sentence. These life sentences, however, were imposed

without restriction as to parole eligibility pursuant to former LSA-C. Cr. P. art.

817. Since that time, Howard has earned his General Equivalency diploma,

taken numerous classes and completed theological course work through the New

Orleans Baptist Seminary, participated in numerous prison clubs, and become

a mentor to IMPACT program participants.

Howard has been holding onto hope. Under Louisiana law, life-sentenced

prisoners are ineligible for parole consideration until their sentence has been

commuted to a fixed term of years. LA. REV. STAT. § 15:574.4(B)(1). Because he

has constantly been seeking parole, Howard has applied for a commutation

several times, as a precursor to parole eligibility. In 1979, the Board

recommended commutation, but the Governor returned it unsigned in 1988

when he left office. Howard reapplied for commutation that same year, but the

Board denied his application. In 1990, Howard applied and received a favorable

recommendation, but the Governor rejected it. The Board then denied Howard’s

1996 application. But Howard reapplied in 2002, the Board held a hearing in

2

Case: 11-30919 Document: 00512248534 Page: 3 Date Filed: 05/21/2013

No. 11-30919

2003, and it again favorably recommended Howard; the Governor, however, took

no action on his application before leaving office in 2004. Finally, the Board

automatically reconsidered and rejected Howard’s application in 2005. The

instant appeal derives from this final disappointment.

Howard contends that his 2005 denial resulted from changes to Louisiana

law. Under the Louisiana Constitution of 1921, the Governor had authority to

grant pardons or commutations of sentences upon the recommendation of the

Lieutenant Governor, the Attorney General, and the judge who presided over the

conviction, or any of those two. See Gaillard v. Cronvich, 269 So. 2d 231, 232

(La. 1972). At the time of Howard’s 1968 conviction, LA. REV. STAT. § 15:571.7

(repealed) was in effect:

Whenever a prisoner who has been convicted of a crime and

sentenced to imprisonment for life, so conducts himself as to merit

the approval of the superintendent of the state penitentiary he may

apply for a commutation of his sentence and the application, upon

approval of the superintendent, shall be forwarded to the governor.

The governor may commute the sentence upon the recommendation

in writing of the lieutenant governor, attorney general, and

presiding judge of the court before which the conviction was had or

any two of them. No commutation under this Section shall reduce

the period of incarceration to less than ten years and six months.

State v. Ramsey, 292 So. 2d 708, 710 n.1 (La. 1974). According to the summary

judgment evidence that Howard presented, the rules of the Board of Pardons in

effect at the time of his convictions allowed a prisoner to reapply for a pardon or

commutation after one year elapsed from the date of the Board’s last action on

his file.1

These procedures changed when Louisiana “entirely revamped” its pardon

process in connection with the passage of its 1974 Constitution. See Touchet v.

Broussard, 31 So. 3d 986, 994 n.9 (La. 2010). The new Constitution provided for

1

This rule was allegedly promulgated pursuant to statutory authority.

3

Case: 11-30919 Document: 00512248534 Page: 4 Date Filed: 05/21/2013

No. 11-30919

“the creation of a Pardon Board [and] provided that the new governor could only

grant pardons upon the recommendation of this newly created pardon board.”

Id.; § 15:572(A). The Board is now comprised of five members selected by the

Governor. LA. REV. STAT. § 15:572.1(A).

Among the other changes, LA. REV. STAT. § 15:572.4(D) now restricts the

ability of life-sentenced prisoners to apply for relief from the Pardon Board. In

relevant part, this provision imposes a five-year waiting period for “any

subsequent applications.”2 § 15:572.4(D). The provisions of § 15:572.4(D) “shall

not apply when the board determines that new and material evidence that . . .

was not discovered before or during trial, is available, and if it had been

introduced at trial, it would probably have changed the verdict or judgment of

guilty.” Id.

Not only has the law changed, but the Pardon Board has also altered its

rules since Howard was convicted. Relevant to this appeal, Rule 3 was amended

to allow the Board to deny an applicant a hearing due to “serious nature of the

offense; insufficient time served on sentence; insufficient time after release;

proximity of parole/good time date; institutional disciplinary reports;

probation/parole-unsatisfactory/violated; past criminal record; or any other

factor determined by the Board.” Howard contends the Pardon Board implicitly

applied § 15:572.4(D) and its Rule 3 to him when it refused to grant him a

hearing in May 2005, and informed him that he could reapply in five years.

Howard filed this suit, seeking declaratory relief that these laws violate the Ex

Post Facto Clause; injunctive relief barring the defendants from applying these

laws to him; and an order requiring the laws in effect at the time of his offenses

be applied to any future reviews of his commutation application.

2

The statute establishes a seven-year waiting period for an applicant’s second

application, and a five-year waiting period for every application thereafter. § 15:572.4(D).

4

Case: 11-30919 Document: 00512248534 Page: 5 Date Filed: 05/21/2013

No. 11-30919

II.

These changes, Howard argues, impose new and unconstitutional burdens

on his efforts to gain freedom. Simply put, ex post facto laws prohibit states from

enacting laws that, “by retroactive application, increase the punishment for a

crime after its commission.” Garner v. Jones, 529 U.S. 244, 249 (2000). The

particular question this case raises is whether Rule 3 and the five-year waiting

period Louisiana enacted after Howard’s incarceration sufficiently increased his

risk of punishment so as to create an ex post facto violation.

Although the Supreme Court has previously held that changes to laws

governing parole may, in some cases, constitute ex post facto violations, neither

it nor this court has ever decided whether changes to the commutation laws and

procedures may violate this precept. See Garner, 529 U.S. at 250 (citing Lynce

v. Mathis, 519 U.S. 433 (1997) (citing Weaver v. Graham, 450 U.S. 24, 32 (1981));

Cal. Dep’t of Corrections v. Morales, 514 U.S. 499, 508-09 (1981)). Assuming

arguendo that a change to the commutation process can violate the ex post facto

laws in the same way changes to parole procedures can,3 it is clear the changes

3

Lewis-El v. Sampson, 649 F.3d 423, 426 (6th Cir. 2011) (noting this is “a generous

assumption”). It may be possible to conceive of a change to the commutation process that

“creates a significant risk of prolonging a respondent’s incarceration,” Garner, 529 U.S. at

251, if, for example, that change abolished the possibility of commutation altogether. The

Supreme Court has, however, held that “[a]s a matter of law, parole and commutation are

different concepts.” Solem v. Helm, 463 U.S. 277, 300 (1983). For example, Chief Justice

Burger noted that, “[r]ather than being an ad hoc exercise of clemency, parole is an established

variation on imprisonment of convicted criminals,” id. (quoting Morrissey v. Brewer, 408 U.S.

471, 477 (1972)), and that “there is a vast difference between a denial of parole . . . and a

state’s refusal to commute a lawful sentence.” Id. (quoting Conn. Bd. of Pardons v. Dumschat,

452 U.S. 458, 466 (1981). Similarly, in Solem v. Helm the Court held

The possibility of commutation is nothing more than a hope for “an ad hoc

exercise of clemency.” It is little different from the possibility of executive

clemency that exists in every case in which a defendant challenges his sentence

under the Eighth Amendment. Recognition of such a bare possibility would

make judicial review under the Eighth Amendment meaningless.

463 U.S. at 303. Thus, the Ex Post Facto Clause, if it applies at all, would likely not function

5

Case: 11-30919 Document: 00512248534 Page: 6 Date Filed: 05/21/2013

No. 11-30919

at issue here do not do so. See, e.g., Morales, 514 U.S. at 509 (“The amendment

create[d] only the most speculative and attenuated possibility of producing the

prohibited effect of increasing the measure of punishment for covered crimes,

and such conjectural effects are insufficient under any threshold we might

establish under the Ex Post Facto Clause.”); Garner, 529 U.S. at 252 (finding no

ex post facto violation and noting “the Ex Post Facto Clause should not be

employed for ‘the micromanagement of an endless array of legislative

adjustments to parole and sentencing proceedings’” (quoting Morales, 514 U.S.

at 508)). The Governor’s ultimate decision as to whether to grant commutation

is entirely discretionary, despite the prerequisite that the Pardon Board first

recommend a prisoner for commutation. And this unfettered discretion

precludes the possibility of an ex post facto violation arising from the changes to

the commutation procedure Howard identifies.4

In Garner, the Supreme Court held that, “[w]hen [a] 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 revocation will result in a longer period of

incarceration than under the earlier rule.” 529 U.S. at 255. The procedural

changes upon which Howard’s argument rests are several steps removed from

proof that he now faces “a longer period of incarceration.” See id. (analyzing

whether changes to parole procedures increasing the time between reviews from

“every three” to “at least every eight” years violated the Ex Post Facto Clause,

the same with respect to commutation procedures as it does to changes to parole procedures.

See also Morales, 514 U.S. at 509.

4

We recognize that “[t]he presence of discretion does not displace the protections of the

Ex Post Facto Clause.” Garner, 529 U.S. at 253. After analyzing the changes to Louisiana law

and the facts of this case, however, we ultimately find the Governor’s total discretion as to

whether to grant commutation to a Board-recommended applicant is outcome determinative

in this case.

6

Case: 11-30919 Document: 00512248534 Page: 7 Date Filed: 05/21/2013

No. 11-30919

reversing the appellate court’s determination that this was a per se violation,

and remanding for further proceedings); Lewis-El v. Sampson, 649 F.3d 423, 426

(6th Cir. 2011) (“According to the Supreme Court in Garner v. Jones, ‘the

relevant inquiry . . . is not whether the challenged [provision] is ‘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,’ Michael v. Ghee, 498

F.3d 372, 383 (6th Cir. 2007)[.]” (alterations in original)). Being granted a

hearing in no way secures a recommendation from the Board—indeed, the Board

has declined to recommend Howard two times prior to the 2005 denial at issue

here. And even a recommendation from the Board in no way secures an actual

grant of commutation from the Governor. The Governor’s ability to grant

commutation to a prisoner recommended by the Board is entirely discretionary.

Notably, the Board has recommended that three separate Governors commute

Howard’s sentence, but none elected to do so. This fact itself undermines

Howard’s argument that the new commutation procedure created a “significant

risk” of increasing his punishment.

Furthermore, even a commutation does not secure an actual reduction in

the time a prisoner must serve. A commutation means only that a prisoner is

eligible for parole—it says nothing about when or even if he would actually be

paroled. See Solem, 463 U.S. at 302-03 (“[E]ven if Helm’s sentence were

commuted, he merely would be eligible to be considered for parole. Not only is

there no guarantee he would be paroled, but . . . Helm would have to serve three-

fourths of his revised sentence before he would be eligible for parole [in South

Dakota], § 24-15-5[.]”); Cal. Dep’t of Corrections, 514 U.S. at 509 (finding a

change in California law regarding the frequency of parole hearings created

“only the most speculative and attenuated risk of increasing the measure of

punishment”). Thus, even evidence that receiving a commutation has become

7

Case: 11-30919 Document: 00512248534 Page: 8 Date Filed: 05/21/2013

No. 11-30919

more onerous, when present, does not definitively lead to the conclusion that a

prisoner faces a “significant risk” of an increased period of incarceration.

Other circuits have addressed similar challenges to commutation

procedures and come to the same conclusion. The Sixth Circuit, for example,

evaluated a case in which the Michigan Parole Board abandoned a grid system

previously in use to determine when a prisoner would be eligible for

commutation. Under that system, the prisoner claimed, the parole board

generally recommended commutation after expiration of the number of years

prescribed by the grid. Lewis-El, 649 F.3d at 424. The new policy, however, set

out a schedule for determining commutation eligibility in which prisoners were

first interviewed after ten years, with reviews every five years after that. Id.

The court ultimately noted

The decision to commute a prisoner’s sentence includes two layers

of discretion: first, the parole board has discretion in its decision to

recommend commutation; and second, the governor has discretion

in his or her decision to commute the sentence. Lewis-El . . . failed

to set forth any facts tending to show that he faces a significant risk

of increased punishment because of Michigan’s changed

commutation provisions, or, specifically, because Michigan no longer

adheres to the grid. In fact, this would be almost impossible to

demonstrate considering the decision to commute a prisoner’s

sentence is so tied to the personal predilections of the person

occupying the governor’s office.

Id. at 427.

Similarly, the Third Circuit addressed alleged ex post facto violations

deriving from an amendment to Pennsylvania law requiring that the Board of

Pardons unanimously approve an applicant for commutation before the

Governor be allowed to consider the applicant.5 Pa. Prison Soc’y v. Cortes, 622

F.3d 215, 244 (3d Cir. 2010). The court concluded there was no viable claim that

5

Pennsylvania voters voted to limit the Governor’s clemency authority in this way. 622

F.3d at 244.

8

Case: 11-30919 Document: 00512248534 Page: 9 Date Filed: 05/21/2013

No. 11-30919

this amendment “raise[d] a ‘significant risk’ that commutations will be denied

that otherwise would have been received,” noting “the power to grant or deny

commutations, as prescribed by the Commonwealth’s voters, rests solely with

the executive branch which may ‘deny the requested relief for any

constitutionally permissible reason or for no reason at all.’” Id. (quoting Conn.

Bd. of Pardons v. Dumschat, 452 U.S. 458, 467 (Brennan, J., concurring))).

Finally, the Eighth Circuit analyzed a case in which the parole board

regulations initially required interviewing felons to determine commutation

eligibility five years after incarceration, then at ten, thirteen, and fifteen years

post-confinement, and annually thereafter, but were altered during the

prisoner’s incarceration to allow prisoners to apply for commutation not more

than once every ten years. Snodgrass v. Robinson, 512 F.3d 999, 1001 (8th Cir.

2008). Again, the Eighth Circuit concluded “[t]he unpredictability of a wholly

discretionary grant of commutation . . . precludes Snodgrass from demonstrating

that the changes in Iowa’s law raise a ‘significant risk’ that she will be denied

a commutation she otherwise would have received.” Id. at 1002. We find the

analysis of these three circuits to be persuasive, and similarly conclude that, in

this case, Howard has insufficiently demonstrated a “significant risk” that he

will endure a “longer period of incarceration” as a result of the amendments to

Louisiana’s commutation process. Garner, 529 U.S. at 255.

III.

Because the ultimate decision of the Louisiana governor as to whether to

grant or deny commutation remains entirely discretionary, Howard cannot

establish an ex post facto violation by identifying alterations to the State’s

commutation procedure increasing the amount of time between when

commutation applications may be filed and granting the Board authority to deny

a full hearing to an applicant. Accordingly, the judgment of the district court is

AFFIRMED.

9