Petition for Writ of Certiorari — Steve Dismore, Petitioner v. Kentucky Parole Board, et al.

_________________________________

No. _______________

__________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2024

____________________________________

STEVE DISMORE, Petitioner

v.

KENTUCKY PAROLE BOARD

and LADIEDRA JONES, CHAIR, KENTUCKY PAROLE BOARD, Respondents

____________________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

____________________________________________

Timothy G. Arnold

Department of Public Advocacy

5 Mill Creek Park

Frankfort, Kentucky 40601

(502) 564-8006

(502) 687-6769 (fax)

tim.arnold@ky.gov

March 12, 2025

QUESTIONS PRESENTED

I.

Does the fact that Kentucky treats parole as “a matter of grace or gift to

persons deemed eligible” exempt rules relating to the timing of Kentucky

parole hearings from ex post facto challenges under Garner v. Jones, 529

U.S. 244 (2000)?

II.

If not, did the Ex Post Facto Clause prohibit the Kentucky parole board

from terminating parole eligibility for an inmate with more than sixty years

remaining on his sentence, when the law at the time of his offense required

the Board to consider the inmate for parole no less frequently every eight

years?

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LIST OF PARTIES

1. Steve Dismore is represented by Hon. Timothy G. Arnold, Department of

Public Advocacy, 5 Mill Creek Park, Frankfort, Kentucky 40601.

2. The Kentucky Parole Board is represented by Hon. Seth Fawns, Hon. Angela

Dunham, and Hon. Ed Baylous, Justice and Public Safety Cabinet, 125 Holmes

St, Second Floor, Frankfort, KY 40601.

3. LaDeidra Jones, Chair, Kentucky Parole Board, is represented by Hon. Seth

Fawns, Hon. Angela Dunham, and Hon. Ed Baylous, Justice and Public Safety

Cabinet, 125 Holmes St, Second Floor, Frankfort, KY 40601.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

LIST OF PARTIES ........................................................................................................ ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... iv

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 2

PROVISIONS INVOLVED ............................................................................................ 2

STATEMENT OF THE CASE....................................................................................... 3

REASONS FOR GRANTING THE WRIT .................................................................... 8

THIS COURT SHOULD GRANT THE WRIT TO CLARIFY THE APPLICATION

OF THE EX POST FACTO CLAUSE TO PAROLE RELEASE DECISIONS, AND

TO CORRECT KENTUCKY’S DEPARTURE FROM THIS COURT’S OPINION IN

GARNER V. JONES, 529 U.S. 244 (2000). ............................................................... 8

A.

Kentucky has Long Rejected Application of Garner and Morales to

Kentucky Parole. ......................................................................................... 11

B.

There is Nothing Distinctive About Kentucky Parole that Would

Distinguish it from Garner. ......................................................................... 14

C.

This Case is Appropriate for Summary Reversal, Which Can Resolve

Important Questions About How to Implement Garner. ........................... 17

CONCLUSION............................................................................................................. 20

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TABLE OF AUTHORITIES

Cases

Burnette v. Fahey, 687 F.3d 171, 184 (4th Cir. 2012)................................................. 19

California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) ....................... passim

Commonwealth v. Pridham, 394 S.W.3d 867, 878 (Ky. 2012) ............................. 11, 17

Dismore v. Commonwealth, 2001-CA-001771-MR, 2003 WL 1225160 (Ky. App. Jan.

10, 2003) ......................................................................................................................... 3

Dismore v. Kentucky Parole Board, 2023-CA-0835-MR, 2024 WL 1945193 (Ky. App.

May 3, 2024), review denied and ordered depublished (Dec. 12, 2024 .................... 2, 6

Dunn v. Commonwealth, No. 2020-CA-1430-MR, 2022 WL 2898323 (Ky. App. Jul. 22,

2022) ............................................................................................................................... 6

Dyer v. Bowlen, 465 F.3d 280 (6th Cir. 2006) ............................................................. 19

Fletcher v. Reilly, 433 F.3d 867, 879 (D.C. Cir. 2006) ................................................ 19

Garland v. Commonwealth, 997 S.W.2d 487, 489. (Ky. App. 1999) ................ 7, 12, 13

Garner v. Jones, 529 U.S. 244 (2000) .................................................................. passim

Lynch v. Wingo, 425 S.W.2d 573, 574 (Ky. 1968) ....................................................... 11

Martin v. Chandler, 122 S.W.3d 540, 547 (Ky. 2003) .................................................. 7

Morris v. Wingo, 428 S.W.2d 765, 765 (Ky. 1968) ...................................................... 12

Pate v. Department of Corrections, 466 S.W.3d 480, 487 (Ky. 2015), overruled on other

grounds by Lee v. Kentucky Department of Corrections, 610 S.W.3d 254 (Ky. 2020)

................................................................................................................................ 12, 17

Powell v. Ray, 301 F.3d 1200, 1203 (10th Cir. 2002) ................................................. 19

Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282 (3d Cir. 2005) ...................... 19

Simmons v. Commonwealth, 232 S.W.3d 531 (Ky. App. 2007) .................... 6, 7, 11, 13

Stewart v. Commonwealth, 153 S.W.3d 789 (Ky. 2005) ............................................. 13

Weaver v. Graham, 450 U.S. 24, 33–34 (1981) ............................................................. 8

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Statutes and Constitutional Provisions

28 U.S.C. Sec. 1257(a).................................................................................................... 2

United States Constitution, Article I, Section 10 ......................................................... 2

Ga. Code Ann. § 42-9-42(c) .......................................................................................... 15

Ga. Code Ann. § 42-9-43 (a) ......................................................................................... 15

Ky.Rev.St. 439.340....................................................................................................... 14

Ky.Rev.St. 439.340(1) ............................................................................................ 14, 15

Ky.Rev.St. 439.340(2) .................................................................................................. 15

Ky.Rev.St. 532.055(2)(a)1 ............................................................................................ 17

Other Authorities

Kentucky Criminal Justice Data Snapshot, Bureau of Justice Assistance, December

2023 .............................................................................................................................. 16

Reitz, Kevin, Crye, Bree, and Rhine, Edward, Prison-Release Discretion and Prison

Population Size, State Report: Kentucky, (Robina Institute, May 2023) ................... 16

Regulations

501 KAR 1:011 Section 2 (1980) .................................................................................... 3

501 KAR 1:030 Section 4(d) (1995) ............................................................................... 4

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_________________________________

No. _______________

__________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2024

____________________________________

STEVE DISMORE, Petitioner

v.

KENTUCKY PAROLE BOARD

and LADIEDRA JONES, CHAIR, KENTUCKY PAROLE BOARD, Respondents

____________________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

____________________________________________

Steve Dismore Petitioner, respectfully petitions for a writ of certiorari to

review the order of the Kentucky Supreme Court, affirming a finding that the

retroactive application of a rule allowing the Board to serve out his 109-year sentence

did not violate the Ex Post Facto Clause.

OPINIONS BELOW

The December 12, 2025 unpublished order of the Kentucky Supreme Court

denying review and ordering the Court of Appeals decision depublished, is attached

at Appendix A. The May 3, 2024 opinion of the Kentucky Court of Appeals in Dismore

v. Kentucky Parole Board et al is attached at Appendix B.

unpublished ruling of the trial court is attached at Appendix C.

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The June 20, 2023

JURISDICTION

Petitioner filed the current action in the Franklin Circuit Court in Frankfort,

Kentucky in 2022. Relief was denied in the trial court on June 20, 2023 (Appendix

C). On appeal, the Kentucky Court of Appeals denied relief on all federal claims in

an opinion designated “to be published” on May 3, 2024. Dismore v. Kentucky Parole

Board, 2023-CA-0835-MR, 2024 WL 1945193 (Ky. App. May 3, 2024), review denied

and ordered depublished (Dec. 12, 2024)(Appendix B). The Kentucky Supreme Court

denied review of the claim on December 12, 2024, in a summary order which also

ordered that the Court of Appeals opinion not be published (Appendix A).

This

Petition is filed within the time allotted for a Petition for Certiorari, as calculated

under this Court’s rules.

Throughout this case, the Petitioner has consistently asserted the federal

questions now presented by this Petition. This Court has jurisdiction under 28 U.S.C.

§ 1257(a) to review the final decision of the Kentucky Supreme Court on a matter of

federal law.

PROVISIONS INVOLVED

United States Constitution Article I, Section 10, provides in relevant part that

“No state shall. . . pass any . . . ex post facto law . . ..”

The law which governed parole eligibility at the time of Mr. Dismore’s crime,

conviction and sentence, provided in pertinent part that “After the initial review of

parole, subsequent reviews, so long as confinement continues, shall be at the

discretion of the board; except that the maximum deferment given at any one time

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shall be eight (8) years.” 501 KAR 1:011, Section 2 (1980).

The law which governed parole eligibility in effect at the time of Mr. Dismore’s

parole hearing, provided in pertinent part that “After the initial review of parole,

subsequent review, so long as confinement continues, shall be at the discretion of the

board; except maximum deferment given at any one time shall not exceed the

minimum parole eligibility for a life sentence as established by statute. The board

reserves the right to order a serve-out on any sentence.” 501 KAR 1:030 Section 4(d)

(1995).

STATEMENT OF THE CASE

Mr. Dismore was convicted in 1987 of murder and sentenced to 99 years of

incarceration for murder, which was enhanced to 125 years upon a finding that he

was a Persistent Felony Offender in the First Degree. The enhancement was later

found to be illegal, and his sentence was returned to 99 years, where it remains today.

Dismore v. Commonwealth, 2001-CA-001771-MR, 2003 WL 1225160 (Ky. App. Jan.

10, 2003). With meritorious service and other credits, Mr. Dismore is presently

expected to serve out his sentence in December, 2055, when he will be 94 years of age.

Like many jurisdictions, Kentucky has a system of discretionary parole which

provides the most common form of release from prison. At the time of Mr. Dismore’s

crime, conviction, and sentence, Kentucky law provided that if the Kentucky Parole

Board did not grant parole at the initial parole hearing, “subsequent reviews, so long

as confinement continues, shall be at the discretion of the board; except that the

maximum deferment given at any one time shall be eight (8) years.” 501 KAR 1:011

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Section 2 (1980). Prior to Mr. Dismore’s first parole hearing in 1995, Kentucky law

changed to provide that “[t]he board reserves the right to order a serve out on any

sentence.” 501 KAR 1:030 Section 4(d) (1995). Mr. Dismore’s first and only parole

hearing occurred after that change, at which time the Kentucky Parole Board ordered

that Mr. Dismore serve out his sentence. The Board’s stated basis for this decision

was related to the seriousness of Mr. Dismore’s offense, and his prior record. Had the

Board continued to follow the rules that controlled at the time of his offense, Mr.

Dismore would have been entitled to seven more parole hearings before his minimum

expiration date (2003, 2011, 2019, 2027, 2035, 2043, and 2051).

Mr. Dismore filed this action in Franklin Circuit Court, arguing, in pertinent

part, that the Board’s retroactive application of the 1995 law violated the Ex Post

Facto clause, because given his exemplary record and the fact that the Board had

paroled similar offenders, there was a substantial likelihood that he would be paroled

before the end of his sentence. In support of this claim Mr. Dismore noted that he

has always been designated a low-risk inmate, who on May 20, 2023, when he filed

the summary judgment motion in this case, had received 2605 days of meritorious

good time, very nearly the maximum amount allowed, due to his excellent conduct.

Mr. Dismore has not received a disciplinary write up of any kind for nearly 40 years.

While Kentucky’s Department of Corrections no longer permits staff to write letters

of recommendation, when they were permitted to do so, Mr. Dismore received strong

letters of recommendation for release from the Kentucky Department of Corrections

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staff that he worked with.

Mr. Dismore also presented data showing that the Kentucky Parole Board’s

past decisions demonstrate a willingness to parole individuals with serious offenses

like his. Specifically, Mr. Dismore included in his evidence a spreadsheet of current

cases involving the same offense pattern as Mr. Dismore’s – a homicide committed

while on parole for another offense. Of the 49 people who have seen the Kentucky

Parole Board for a homicide committed while on parole, 23 (47%) have been paroled.

In that regard, Dismore pointed to several individual case where the Kentucky Parole

Board had paroled individuals with offenses that are very similar to Mr. Dismore’s,

generally after serving between 28-33 years on their sentence. Dismore had been in

custody for more than 40 years at the time his action was filed, longer than any of the

paroled inmates he identified.

The case came before the trial court on cross motions for summary judgment.

The Parole Board did not dispute the facts asserted by Dismore, but instead argued

that ex post facto principles do not apply to discretionary parole decisions, because

there is no right to parole and Mr. Dismore’s judicially imposed sentence for the

offense had not increased. Mr. Dismore disputed this argument, asserting that under

this Court’s opinions in Garner v. Jones, 529 U.S. 244 (2000) and California Dept. of

Corrections v. Morales, 514 U.S. 499 (1995) the Ex Post Facto Clause applied to

discretionary parole decisions, and prohibited retroactive changes to parole policy

where doing so created a “significant risk” of increasing the amount of time before an

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prisoner is released on parole. Dismore argued that the facts alleged in his complaint

and summary judgment motion more than crossed the threshold of “significant risk”,

requiring that relief be granted.

The trial court granted summary judgment in favor of the Board, finding that

because “[p]arole is a privilege, not a right”, and as the serve out decision “does not

increase a sentence imposed by the judiciary”, the Ex Post Facto Clause did not apply.

Though this Court’s opinion in Garner was the main point of Mr. Dismore’s argument,

it is not mentioned in the trial court’s ruling.

Dismore appealed that decision to the Court of Appeals, who affirmed. Relying

primarily on Simmons v. Commonwealth, 232 S.W.3d 531 (Ky. App. 2007), and its

unpublished decision in Dunn v. Commonwealth, No. 2020-CA-1430-MR, 2022 WL

2898323 (Ky. App. Jul. 22, 2022), the Court of Appeals found that Dismore’s

“sentence, imposed by the judiciary, was not made more onerous by the Board’s ruling

within its discretion to order a serve-out”, and therefore the Ex Post Facto Clause

was not violated. Dismore v. Kentucky Parole Board, 2023-CA-0835-MR, 2024 WL

1945193 (Ky. App. May 3, 2024), review denied and ordered depublished (Dec. 12,

2024), Appendix B, pp. 8-12, at 12. Quoting Dunn, the Court explained its view that

the Ex Post Facto Clause does not apply to parole decisions:

So, the gist of something being ex post facto is that it is an

act, such as a new law, which reaches backwards in time to

impact something which already occurred. The most classic

example of an ex post facto violation is enacting a new law

which makes illegal already performed conduct which was

not illegal at the time it was performed.

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So, what did the Board do to reach back in time and change

[the appellant’s] sentence? Nothing.

In the law, the “appropriate inquiry” to determine whether

an ex post facto problem exists is whether the change

“results in increased punishment . . . .” Martin v. Chandler,

122 S.W.3d 540, 547 (Ky. 2003). [The appellant’s]

punishment was not increased. . . . [T]he Board dutifully

considered whether to grant [the appellant’s] parole after

he had served roughly twenty-five years. That was all that

was required. His sentence was not changed.

First, parole is always a matter of grace, not a matter of

right or entitlement. Garland, 997 S.W.2d at 490 (“As we

have stated previously, the appellant does not have a right

to parole, and the Parole Board can never be required to

release the appellant before the completion of his

maximum sentence.”) (citations omitted). . . .

And we have held that even applying a 2003 version of that

administrative regulation (which expressly permitted the

Board to issue a serve-out mandate) to an inmate who was

sentenced in 1983 (when the regulation did not expressly

permit the Board to issue a serve-out) was not an ex post

facto violation because the serve-out was not an

“enhancement of punishment” or an “elongation” of the

inmate’s sentence so “the retroactive application of this

revised regulation does not create an unconstitutional ex

post facto violation.” Simmons v. Commonwealth, 232

S.W.3d 531, 534 (Ky. App. 2007). Instead, we held that the

inmate’s sentence “remained at a fixed term” so “[t]he

imposition of a serve-out is not punishment. It is merely a

ruling by the Parole Board which is within its sound

discretion” because it did not make the inmate’s sentence

“more onerous for crimes committed before the revised

regulation was issued.” Id. at 534-35.

Appendix B, 10-11 (footnotes omitted). Once again, this Court’s opinion in Garner

was the heart of Mr. Dismore’s ex post facto argument, and once again the Kentucky

Court of Appeals opinion made no mention of it, or any other opinion of this Court.

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Dismore filed a Motion for Discretionary Review with the Kentucky Supreme

Court, arguing that the Kentucky law relied upon in the lower courts could not be

squared with this Court’s opinion in Garner. The Kentucky Supreme Court denied

review in a summary opinion, which also ordered that the Court of Appeals opinion

be depublished.

This petition follows.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT THE WRIT TO

CLARIFY THE APPLICATION OF THE EX POST

FACTO

CLAUSE

TO

PAROLE

RELEASE

DECISIONS, AND TO CORRECT KENTUCKY’S

DEPARTURE FROM THIS COURT’S OPINION IN

GARNER V. JONES, 529 U.S. 244 (2000).

This Court has long recognized that action by the state which takes away an

inmate’s ability to reduce time in prison through release on parole violated the Ex

Post Facto Clause. In Weaver v. Graham, 450 U.S. 24, 33–34 (1981), this Court found

an ex post facto violation occurs when the prisoner was “disadvantaged by the

reduced opportunity to shorten his time in prison simply through good conduct.” This

was true whether the reduction was a result of reducing the prisoner’s access to good

time credits, or interference with the prisoner’s access to parole. Id., at 34 (Finding

“no distinction between depriving a prisoner of the right to earn good conduct

deductions and the right to qualify for, and hence earn, parole. Each . . . materially

alters the situation of the accused to his disadvantage.”)(quotations omitted).

In California Dept. of Corrections v. Morales, 514 U.S. 499 (1995), this Court

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once again recognized that changes to access to parole could be an ex post facto

violation, but found that the changes at issue in Morales did not violate that rule

because they only created “the most speculative and attenuated risk of increasing the

measure of punishment attached to the covered crimes.” Id., at 514. The changes at

issue were a provision that permitted California parole authorities to defer inmates

serving time for multiple murders from one year to three years, if certain findings

were made. Rather than finding that this kind of legislative change did not implicate

the ex post facto clause – a holding that would have contradicted Weaver and other

cases – the Supreme Court instead found that “[i]n evaluating the constitutionality

of the 1981 amendment, we must determine whether it produces a sufficient risk of

increasing the measure of punishment attached to the covered crimes.” Morales,

supra at 509. Finding that “[t]he amendment creates only the most speculative and

attenuated possibility of producing the prohibited effect of increasing the measure of

punishment for covered crimes”, because parole was extremely unlikely during the

period when hearings were required under the old law but not the new one, the Court

found that there was no ex post facto violation. Id. at 509.

This Court reaffirmed that changes in parole hearings can constitute an ex

post facto violation again in Garner v. Jones, 529 U.S. 244, 253 (2000), holding that

the danger of increasing the punishment after the fact “. . . is present even in the

parole context, and the Court has stated that the Ex Post Facto Clause guards against

such abuse.” “When the rule does not by its own terms show a significant risk, the

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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 earlier rule.”

Id., at 255. This Court remanded the matter to the district court to conduct discovery

to determine whether the change in the rule materially affected his likely release

date. Id.

Mr. Dismore claimed both that the retroactive application of a rule that in his

case changed parole consideration from every eight years, to never again for the sixty

year remainder of his sentence, was the kind of change that violated the Ex Post

Facto Clause. However, even if it did not establish a violation on its own, Mr. Dismore

offered evidence to show that if he had been reviewed under the rules at the time of

his offense, he did have a significant chance of being paroled prior to the expiration

of his sentence, meeting the requirements of Garner.

Specifically, Mr. Dismore

offered evidence of his exemplary conduct in prison, which established that he was

classified as a low risk inmate who had no disciplinary infractions in nearly 40 years,

had received almost the maximum available amount of meritorious good time

awarded, and had received commendations from Kentucky Department of

Corrections staff when available. To the objection that his offense alone would

warrant denying parole, Mr. Dismore offered evidence that since the Board made its

decision it had paroled approximately 50% of the individuals who were in the same

cohort of offense (a homicide committed on parole), including several who had offenses

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which were either factually identical or worse that his offense.

As discussed below, Kentucky rejected these claims not because Kentucky’s

parole system is uniquely exempt from the considerations that gave rise to Garner,

but because of a longstanding history of rejecting ex post facto challenges to the

timing of parole hearings. Kentucky’s position is well established, plain (and plainly

erroneous) as a matter of law, and unlikely to change without intervention from this

Court, warranting summary reversal.

A. Kentucky has Long Rejected Application of Garner and Morales to

Kentucky Parole.

Kentucky recognizes that elongating the period before one is eligible for parole,

or between parole hearings, “is a punitive measure meant to enhance the punishment

of the serious offenses listed in the statute by ensuring that persons convicted of those

offenses serve the lion's share of their sentences in prison and not on parole.”

Commonwealth v. Pridham, 394 S.W.3d 867, 878 (Ky. 2012). However, it has

nevertheless concluded that when it comes to claims under the Ex Post Facto Clause

“parole eligibility is of no consequence.” Simmons, supra at 534-35. That is due to

Kentucky’s longstanding opposition to applying ex post facto principles to parole. See

Lynch v. Wingo, 425 S.W.2d 573, 574 (Ky. 1968)(“The grant of parole is not a right. It

is a matter of grace or gift to persons deemed eligible for good behavior or for other

reasons fixed by the parole board. . . . Under the statutes which make an allowance

for good conduct an act of grace, there is no question of infringement of constitutional

rights by subsequent legislation restricting the granting of the favor.”); Morris v.

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Wingo, 428 S.W.2d 765, 765 (Ky. 1968)(Noting that “parole is not a right, but a

privilege to be granted or withheld within the discretion of the board of charities and

corrections. . . . Modification of the procedure with respect to the privilege did not

violate the constitutional prohibitions against enactment of ex post facto laws.”)

Decisions like Morales and Garner have done nothing to change Kentucky’s

position on this issue. In Garland v. Commonwealth, 997 S.W.2d 487, 489. (Ky. App.

1999), decided after Morales but before Garner, the Kentucky Court of Appeals

rejected an ex post facto challenge to a law that would delay an inmates first parole

hearing from one year to three years, because “[t]he appellant misunderstands the

nature of parole.” As the court noted:

[A] grant of parole is not a right but is a matter of grace or

gift to persons deemed eligible. Thus, the appellant still

faces a maximum five-year sentence; no more and no less.

When he becomes eligible for parole is largely irrelevant.

Although the appellant complains he would be eligible for

parole in just one year were it not for the treatment

program, he fails to realize that he does not have to be

granted parole at all. Finding that relevant criteria have

been met does not require the parole board to release an

inmate prior to the expiration of sentence; nothing in the

parole statutes or regulations mandates the granting of

parole or diminishes the discretionary nature of the Parole

Board's authority.

Id., citations and quotations omitted. Even after Garner, Kentucky courts have not

backed off of their position that retroactive changes to initial parole eligibility is not

an ex post facto violation. See, e.g., Pate v. Department of Corrections, 466 S.W.3d

480, 487 (Ky. 2015), overruled on other grounds by Lee v. Kentucky Department of

Corrections, 610 S.W.3d 254 (Ky. 2020)(Noting that a “twelve-year increase in time

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Appellant must serve before becoming eligible for parole is significant, we agree with

the Court of Appeals that it does not necessarily elongate Appellant's sentence”,

quoting Garland, supra, and finding no ex post facto issue.)

Kentucky has reached the same conclusion with challenges to elongating the

time between the first and second hearings. In Simmons v. Commonwealth, supra,

the court rejected the retroactive imposition of essentially the same rule at issue in

this case, which allowed the Board to serve out a life sentence, saying “[t]he

imposition of a serve-out is not punishment. It is merely a ruling by the Parole Board

which is within its sound discretion. Requiring Simmons to serve out his life sentence

does not make his punishment more onerous for crimes committed before the revised

regulation was issued.” Id, at 535.

While discussions of this Court’s opinions in Morales and Garner are

uncommon in these cases, where Morales and Garner are discussed, Kentucky courts

have been clear that they believe that those cases simply have no application at all

to Kentucky’s parole system. In Stewart v. Commonwealth, 153 S.W.3d 789 (Ky.

2005), the Kentucky Supreme Court, quoting both Morales and Garner, correctly

noted that an ex post facto violation occurs if a rules “retroactive application will

result in a longer period of incarceration than under the earlier rule.” Id., at 739

(quoting Garner).

The Kentucky Supreme Court then categorically rejected the

application of those principles to Kentucky parole, stating that “[n]one of these

elements are present in this case.” Id. The Kentucky Supreme Court found that

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“there is no enhancement of punishment or elongation of a sentence” due to

increasing the time before the prisoner could be parole eligible, because “the sentence

remains at a fixed term and parole eligibility is of no consequence.” Id. In reaching

this conclusion, the Court emphasized that “parole is a privilege and not a right. It is

considered on a case-by-case basis.” Therefore, in the Kentucky Supreme Court’s

view, any elongation on the period before parole consideration “not make the

punishment more onerous for crimes committed before its enactment”, or create any

legally cognizable disadvantage sufficient to raise a claim under Morales and Garner.

Id.

B. There is Nothing Distinctive About Kentucky Parole that Would

Distinguish it from Garner.

In Kentucky, parole “shall be ordered only for the best interest of society and

not as an award of clemency, and it shall not be considered a reduction of sentence or

pardon.” Ky.Rev.St. 439.340. Prior to considering an inmate for parole, the Board is

required to consider “the results of his or her most recent risk and needs assessment,

his or her criminal record, his or her conduct, employment, and the reports of physical

and mental examinations that have been made.” Ky.Rev.St. 439.340(1). If parole is

denied, the Board is required to keep a record of “the reasons for denying parole to

inmates.” Kentucky’s parole does not have rules that differentiate one inmate from

another – if one is eligible for parole, either for an original parole hearing, or

reconsideration after a deferment, the requirements and considerations are identical.

This system is not meaningfully distinguishable from the systems at issue in

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Morales or Garner. In Garner, this Court reviewed the differences between the

California system in Morales and the Georgia system in Garner, and found “[t]hese

differences are not dispositive.” Garner, supra, at 251. Kentucky’s system and

Georgia’s system are similar in their approach to parole. Both require a board to

consider certain “pertinent information” about the inmate prior to making a decision.

Compare Ga. Code Ann. § 42-9-43 (a)(requiring the Board to obtain and review “all

pertinent information” related to the inmate, and listing specific information to be

considered); with Ky.Rev.St. 439.340(1) (requiring the board to obtain certain

“pertinent information”), and (2) (requiring the Board to “consider the pertinent

information regarding the prisoner”). Both Georgia and Kentucky direct that parole

is not to be granted unless the Board believes it is in the interest of society to do so.

Compare Ga. Code Ann. § 42-9-42(c)(Directing that prisoner should not be granted

parole unless the Board believes that “his or her release will be compatible with his

or her own welfare and the welfare of society”), with Ky.Rev.St. 439.340(2)(Directing

that parole “shall be ordered only for the best interest of society”).

There is one difference between Kentucky and Georgia which weighs in favor

of finding an ex post facto problem with Kentucky’s system. In Garner, this Court

relied in part on Georgia’s policy only to grant a maximum eight year deferment

“when, in the Board's determination, it is not reasonable to expect that parole would

be granted during the intervening years”, as well as a provision which permits

“expedited parole reviews in the event of a change in their circumstance or where the

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Board receives new information that would warrant a sooner review.” Garner, supra

at 254.

Neither of those features are present in Kentucky.

Kentucky was not

required to make any assessment of the likelihood of Mr. Dismore’s parole before

serving out his sentence, nor is there any firmly established process for obtaining

review, once he was served out.

There is also no distinction between Kentucky and other states which would

suggest that Kentucky parole is so infrequent or abnormal as to fall outside the

protections of the Ex Post Facto Clause. The Robina Institute describes Kentucky as

a state whose sentencing practices rely on “high indeterminacy”, meaning that “[t]he

Kentucky prison-sentencing system cedes a great deal of power to the parole board

over actual time served by individuals and overall prison population size.” Reitz,

Kevin, Crye, Bree, and Rhine, Edward, Prison-Release Discretion and Prison

Population Size, State Report: Kentucky, (Robina Institute, May 2023) at pg. 1. 1

Consistent with that finding, a Bureau of Justice Assistance report concluded that in

2022, 69 percent of Kentucky inmates were released on some kind of parole, making

it the principal means by which an inmate is released from prison.

Kentucky

Criminal Justice Data Snapshot, Bureau of Justice Assistance, December 2023, pg.

24. 2

https://robinainstitute.umn.edu/sites/robinainstitute.umn.edu/files/202305/kentucky_doi_report_05_17_23.pdf (Last Checked 3/10/2025)

1

2 https://justicereinvestmentinitiative.org/wp-content/uploads/2024/01/Kentucky-

Criminal-Justice-Data-Snapshot_accessible.pdf , pg. 24 (Last checked 3/10/2025).

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This is reflected in Kentucky law, which permits the jury to be informed of

parole eligibility prior to deciding on a sentence. Ky.Rev.St. 532.055(2)(a)1. Likewise,

a Kentucky litigant is entitled to have a judgment set aside when he is misinformed

by the trial court and prosecutor of the parole eligibility associated with the offense,

and that alters his decision to plead guilty. Pate, supra, at 491. And, an attorney

who incorrectly advises his client about parole eligibility has rendered deficient

performance for the purposes of establishing ineffective assistance of counsel.

Pridham, supra at 878.

In short, there is nothing in Kentucky’s system that justifies its departure from

Garner.

C. This Case is Appropriate for Summary Reversal, Which Can Resolve

Important Questions About How to Implement Garner.

There is no ambiguity in the Kentucky state court’s position rejecting the

application of the Ex Post Facto Clause to changes in the timing of parole. There is

also no reasonable probability that Kentucky will modify its position in the absence

of an opinion from this Court pointing out their error. After all, if Kentucky’s position

was to change, this would have been the case to do it. Mr. Dismore’s case rings every

bell under Garner. If any retroactive application of a rule related to parole eligibility

would “by its own terms show a significant risk” of prolonged time in prison, see

Garner, supra, at 255, it would be one which changes parole eligibility from every

eight years, to never again in the sixty remaining years of Mr. Dismore’s sentence.

And, even if that rule change is not considered per se violative of the Ex Post Facto

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Clause, Mr. Dismore has demonstrated “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 earlier rule.”

Id.

Mr. Dismore’s behavior in custody has been exemplary, such that the only

reasonable objection to his release would be the seriousness of his offense. To meet

that objection, Mr. Dismore has shown that since he was served out, the Board has

paroled many people within the same cohort as he is, many of which with more severe

crimes than his own.

Specifically, of the 49 people who have seen the Kentucky

Parole Board for a homicide committed while on parole in the years following this

decision, nearly half (23) have been paroled.

In short, Mr. Dismore’s situation is an in extremis case of an ex post facto

violation. If Kentucky is not changing its ways in this case, it never will. In order to

address this issue this court must intervene. The facts and history of this case are

well developed enough to permit a summary reversal. As noted above, Kentucky’s

ruling comes out of a long line of similar rulings, leaving no doubt about where

Kentucky stands on the issue. And, this ruling denied relief as a matter of law,

meaning this Court is not being asked to decide preliminary factual questions. This

Court need do no more than simply remand the case with finding that Garner applies

to this case, to have resolved Kentucky’s error.

An opinion endorsing that conclusion could do more than merely correct

Kentucky’s error, however. It has been twenty-five years since Garner was decided,

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and in the interim courts and parole boards have struggled to define when a board

exceeds its authority to retroactively change a rule. For the most part, courts seem to

have interpreted Garner to prevent a claim based solely on how the language of the

rule has changed, instead requiring inmates to offer some kind evidence of how the

Board implemented the change in order to show that a violation has been committed.

Burnette v. Fahey, 687 F.3d 171, 184 (4th Cir. 2012); Dyer v. Bowlen, 465 F.3d 280

(6th Cir. 2006); Fletcher v. Reilly, 433 F.3d 867, 879 (D.C. Cir. 2006); Richardson v.

Pa. Bd. of Prob. & Parole, 423 F.3d 282 (3d Cir. 2005); Powell v. Ray, 301 F.3d 1200,

1203 (10th Cir. 2002). This is not necessarily a correct interpretation of Garner,

which acknowledged that a parole rule may “by its own terms show a significant risk”

of increased punishment. Garner, supra, at 255. The retroactive rule in this case,

which permitted the Kentucky Parole Board to remove Mr. Dismore from parole

consideration entirely with roughly sixty years remaining on his sentence, would

certainly seem to ring the bell of “significant risk” of increased punishment, and a

finding by this Court that it does would therefore clarify matters for the lower courts

on that point.

However, even if this Court believes a showing is or may be necesssary, courts

are split on what that showing entails. Some courts have required a case specific

showing that the inmate would have been paroled under the prior rule. See, e.g.,

Burnette, supra (“Causal link” between change and adverse parole decision required);

Richardson, supra (Case specific harm required to establish violation). Others have

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rejected that requirement and instead of required a showing that the general

application was likely to have harmed the inmate.

Dyer, supra (rejecting state

decision that case specific harm was required, remanding for evidence on how the

Board exercised discretion); Fletcher, supra (Requiring analysis about differences

between D.C. parole and Federal parole).

Mr. Dismore believes that no matter what showing is required, he has made

it. As noted, this Court need not make that determination for itself, it need only

decide whether Mr. Dismore has stated a claim on which relief can be granted, and if

so, what showing was he required to make. Rendering such an opinion will not only

address Kentucky’s failure to adopt Garner, but it may also resolve some uncertainty

remaining after Garner about how this issue is to be resolved, that will help both

courts and parole boards decide how to approach claims of this nature going forward.

CONCLUSION

WHEREFORE, for the reasons set forth above, Petitioner Steve Dismore

respectfully requests that this Petition be granted, and the judgment herein either

summarily reversed, or the matter set for plenary review.

Respectfully submitted,

__________________________________

Timothy G. Arnold

Department of Public Advocacy

5 Mill Creek Park

Frankfort, KY 40601

(502) 564-8006

(502) 695-6769 (fax)

tim.arnold@ky.gov

March 12, 2025

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