Reply Brief — California Dept. of Corrections v. Morales

Buyrons Oewt, U.S

FILED

No. 93-1462

|i Dec 20.1994

In The OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1994

¢

CALIFORNIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

v.

JOSE RAMON MORALES,

Respondent.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

PETITIONERS’ REPLY BRIEF

¢

Danie. E. LUNGREN,

Attorney General of the

State of California

GreorGE WILLIAMSON,

Chief Assistant

Attorney General

KENNETH C. YOUNG,

Senior Assistant

Attorney General

Joan W. CavaNaGcu,

Supervising

Deputy Attorney General

G. Lewis CHARTRAND, Jr. James CHING,

Chief Counsel Supervising Deputy

California Board of Attorney General

Prison Terms Counsel of Record

428 | Street 1515 K Street, Suite 511

Sacramento, California 95814 Sacramento, California 95814

Of Counsel Telephone: (916) 323-1948

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

~

i»

TABLE OF CONTENTS

SUMMARY OF THE ARGUMENT .................

IE coi wawa ebb iddee ts ce kdcned bn Niveteuscs

THE EX POST FACTO CLAUSE DOES NOT BAR

RETROSPECTIVE APPLICATION OF A LAW

AUTHORIZING LESS FREQUENT PAROLE SUIT-

ABILITY HEARINGS WHEN THE PAROLE

BOARD, IN THE EXERCISE OF ITS STATUTORY

AND DISCRETIONARY POWERS, DETERMINES

THAT MORE FREQUENT HEARINGS WOULD BE

PE Pee CTR ee ckds tind wah cone ydees d8ekaas es

TABLE OF AUTHORITIES

Page

Cases

Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991) ... 12, 15, 16

Calder v. Bull, 3 Dall. 386 (1789) ................ passim

Collins v. Youngblood, 497 U.S. 37 (1990)......... passim

Dobbert v. Florida, 432 U.S. 282 (1977) ................ 5

Fender v. Thompson, 883 F.2d 303 (4th Cir. 1989)... . 15

Flemming v. Ore. Bd. of Parole, 998 F.2d 721 (9th Cir.

SPOUPs ¢000850s8inunpudekenee eee 7, 12, 16

Freeman v. State, 809 P.2d 1171 (Ida. 1991)........... 10

Hill v. Lockhart, 474 U.S. 52 (1985) ................... 8

In re Dayan, 282 Cal.Rptr. 269 (Ct.App. 1991)......... 4

In re Diaz, 13 Cal.App.4th 1755, 17 Cal.Rptr.2d 395

CRA. TOUODs ve oivddcceiesdesesc eee 4

In re Jackson, 703 P.2d 100 (Cal. 1985)............... 11

In re Monigold, 139 Cal.Rptr. 689 (Ct.App. 1983)...... 4

Lightsey v. Kastner, 846 F.2d 329 (5th Cir. 1988),

covt. Gen., TES GAR. GF 6.636 5

Lindsey v. Washington, 301 U.S. 397 (1937)........... 13

Love v. Fitzharris, 460 F.2d 382 (9th Cir. 1972), vac.

os mast, GO UR. Te: + kc6skcdiengeeetaeeeeeee 12

Malek v. Haun, 26 F.3d 1013 (10th Cir. 1994)......... 10

Malloy v. South Carolina, 237 U.S. 180 (1915).......... 6

Miller v. Florida, 482 U.S. 423 (1987).................. 6

Morales v. Cal. Dept. of Corrections, 16 F.3d 1001 |

COU Cie. BORG. os sccnsecvdacaecenp eee passim

Morrissey v. Brewer, 408 U.S. 471 (1972).............. 10

Nulph v. Faatz, 27 F.3d 451 (9th Cir. 1993)............ 7

Powell v. Ducharme, 998 F.2d 710 (9th Cir. 1993) ....5, 7

TABLE OF AUTHORITIES - Continued

Page

Rodriguez v. U.S. Parole Comm., 594 F.2d 170 (7th

DT CibeGRbGi ba sdnnedsesnecsccccces 13, 15, 16

Roller v. Cavanaugh, 984 F.2d 120 (4th Cir. 1993),

cert. granted, 113 S.Ct. 2412, cert. dism., 114 S.Ct.

SEES a en 1, 2, 6, 12

Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977) ..... 12, 13

Sumner v. Mata, 449 U.S. 539 (1981).................. 3

Tapia v. Superior Court, 807 P.2d 434 (Cal. 1991, ...... 6

Tripati v. U.S. Parole Comm., 872 F.2d 328 (9th Cir.

PCUMUMUNAEMEGUEH a cectdancencccececcececccacec: 5

U.S. ex rel. Graham v. U.S. Parole Comm., 629 F.2d

I NN EN I, in cn ccc nwcnccccccccccccces 13, 14

U.S. v. Johns, 5 F.3d 1267 (9th Cir. 1993) ............. 5

U.S. v. Meeks, 25 F.3d 1117 (2d Cir. 1994) ........... 15

U.S. v. Paskow, 11 F.3d 873 (9th Cir. 1993)........... 12

U.S. v. Seacott, 15 F.3d 1380 (7th Cir. 1994)........... )

Warden v. Marrero, 417 U.S. 653 (1974) .......... passim

Watson v. Estelle, 859 F.2d 105 (9th Cir. 1988)........ 15

Watson v. Estelle, 886 F.2d 1093 (9th Cir. 1989)........ 5

Weaver v. Graham, 450 U.S. 24 (1981)..... 1, 4, 7, 16, 17

Williams v. Bd. of Parole, 812 P.2d 443 (Ore. 1991) .... 16

STATUTES AND Copes

28 United States Code

EE EE 1, 4, 17

es cau becevecceececace 4

California Penal Code

op

SUMMARY OF THE ARGUMENT

Morales v. Cal. Dept. of Corrections, 16 F.3d 1001 (9th

Cir. 1994), the Ninth Circuit opinion below, suffers from

two grave defects. The first is readily apparent on its face

and the other is not.

First, Morales explicitly holds that a retrospective

reduction in the frequency of parole suitability hearings

violates the prohibition against ex post facto laws. In

other words, the Ninth Circuit, on the basis of a wholly

inadequate record, found that Morales had met his bur-

den of proof on habeas corpus, bringing forth convincing

evidence that he was in custody contrary “in violation of

the Constitution”. 28 U.S.C. section 2241(3). However, the

record discloses that Morales did not and could not put

forth even a colorable argument that the alleged violation

worked more than mere speculative, insubstantial harm

to him, and therefore Morales must be reversed because

Morales’ claims have no practical substance under Weaver

v. Graham, 450 U.S. 24, 32 (1981). This is the approach

suggested by the concurring opinion in Collins v. Young-

blood, 497 U.S. 37, 58 (1990) [Stevens, J., concurring]. The

undisputed findings of the parole board, based on the

particular facts of respondent's case, establish the lack of

harm to respondent and that it was not the amendment of

the law which led to the postponement of the suitability

hearings but rather respondent’s own deeds. There was

nothing categorical about the parole board’s decision.

A more subtle and important defect, and cone that

undermines both Morales and Roller v. Cavanaugh, 984

F.2d 120 (4th Cir. 1993), cert. granted, 113 S.Ct. 2412, cert.

dism., 114 S.Ct. 593, is the unspoken evasion of this

Court’s majority holding in Collins v. Youngblood, supra at

50. Collins states unequivocally that as a threshold matter,

no inmate may claim that he has been subjected to an ex

post facto law unless the law in question is within one of

four categories outlined in Calder v. Bull, 3 Dall. 386, 390

(1789). In the instant case, the only plausible relevant

category is the third Calder category, increase in punish-

ment. Yet absent in both Morales and Roller is any discus-

sion of how the particular parole procedure at issue

increases punishment greater “than the law annexed to

the crime[] when committed”.

This Court cannot accept the unstated and uncritical

premise of Morales and Roller that all parole procedures

are a part of criminal punishment and simultaneously

honor the analysis in Collins and Calder. Morales itself

suggests that Warden v. Marrero, 417 U.S. 653, 662 (1974),

reh. den., 419 U.S. 1014, holds that all parole procedures

are within a Calder category, a contention that will not

bear close examination.

In light of the substantial number of cases extant

among the circuits as to the application of the ex post

facto clause to various parole procedures, it is necessary

for this Court to state unequivocally that no new parole

procedure implicates the ex post facto clause unless the

change comes within a Calder category as integral to the

criminal term itself. Unless a parole procedure or condi-

tion was pronounced as part of or as a contemporaneous

adjunct to a term of years, that parole is not part of the

punishment imposed and no ex post facto argument may

be entertained. The majority and concurring approaches

outlined in Collins appear to be irreconcilable in the con-

texts of the instant case and Roller. Therefore, this Court

must reexamine the issue and state which is the true test

for ex post facto claims regarding parole.

¢

ARGUMENT

THE EX POST FACTO CLAUSE DOES NOT BAR RET-

ROSPECTIVE APPLICATION OF A LAW AUTHORIZ-

ING LESS FREQUENT PAROLE SUITABILITY

HEARINGS WHEN THE PAROLE BOARD, IN THE

EXERCISE OF ITS STATUTORY AND DISCRETION-

ARY POWERS, DETERMINES THAT MORE FRE-

QUENT HEARINGS WOULD BE FUTILE

In the instant case, the Ninth Circuit held that the

1981 amendment of section 3041.5(b)(2) was an ex post

facto law as to respondent. In doing so, the Ninth Circuit

found that the 1981 amendment “denied Morales oppor-

tunities for parole that existed under prior law, thereby

making [his] punishment. . . greater than it was under

the law in effect at the time his crime was committed.”

Morales v. Cal. Dept. of Corrections, supra at 1004.' Peti-

tioners have demonstrated that respondent did not pre-

sent even a colorable case of detriment or harm, let alone

convincing evidence (Sumner v. Mata, 449 U.S. 539, 551

(1981)), and therefore there was no factual basis for relief,

i.e. for the district court to hear the petition or grant relief

' Respondent, without citation, seems to imply that he may

not ask for a suitability hearing if it had been determined that he

would not receive annual suitability hearings. Resp. Brief at 17.

The record is devoid of any evidence to support this claim and

the practice of the Board is that it will review for merit any

communication from an inmate asking for an earlier suitability

hearing.

under sections 2241(3) and 2254 of Title 8, U.S. Code.2 Pet.

Brief on the Merits at 21; see Weaver v. Graham, supra at

32.

2 Respondent claims that his term of imprisonment, had

parole been granted at the initial suitability hearing, would be

“slightly less than 12 years” or 1994. Resp. Brief at 19, fn. 14.

This contention is based on a profound misconception of

California law regarding sentencing. First, respondent claims

that his postconviction credit vased upon section 2931 of the

California Penal Code applies to his term of imprisonment, but

in reality it only applies to his minimum eligible parole date, i.e.

the date upon which he receives his first suitability hearing. It

has nothing to do with setting a parole date other than its effect

on when the initial suitability hearing is held. In re Diaz, 13

Cal.App.4th 1755, 1760, 17 Cal.Rptr.2d 395 (Ct.App. 1993); In re

Dayan, 282 Cal.Rptr. 269, 271 (Ct.App. 1991); In re Monigold, 139

Cal.Rptr. 689, 702 (Ct.App. 1983).

Second, the suggestion that the Board of Prison Terms

would depart from the guidelines to give respondent a lesser

term than the norm is patently absurd. The Board clearly felt

that respondent was such an undeserving candidate for parole

that it refused to give him annual suitability hearings. A fortiori,

it would not have given him an early parole date. The sugges-

tion that the Board would, in its discretion, award respondent

four months of credit per annum against the parole date when

awarded is similarly flawed. No such credit appears in the

record, despite the fact that such credit could be awarded dur-

ing an initial suitability hearing if the inmate had been found

suitable for parole.

Respondent appears unwilling to admit that the Board’s

clear and unanimous conclusion was that he was simply and

totally unworthy of annual suitability hearings or a parole date,

much less credit to reduce a parole date. Instead of making

reference to the record, he indulges in fantasy and spec: lation

about what might have happened had he not been the person he

is. In this, he simply emulates the Ninth Circuit's approach to

the problem.

“The ex post facto clause does not deal with fiction.”

Watson v. Estelle, 886 F.2d 1093, 1097 (9th Cir. 1989). If the

new parole condition is no more onerous than the pre-

vious state of affairs, there can be no ex post facto claim.

See Lightsey v. Kastner, 846 F.2d 329, 333-334 (5th Cir.

1988), cert. den., 109 S.Ct. 807; Tripati v. U.S. Parole Comm.,

872 F.2d 328, 330 (9th Cir. 1989). Consequently, Morales

should be reversed on this jurisdictional basis alone. This

result would be in agreement with the concurring opinion

in Collins:

The mere possibility of a capricious and unlikely

windfall is not the sort of procedural protection

that could reasonably be judged substantial

from the perspective of the defendant at the

time the offense was committed.

Collins v. Youngblood, supra at 61 (Stevens, J., concurring];>

see Dobbert v. Florida, 432 U.S. 282, 292, fn. 6 (1977).

However, the majority opinion in Collins had sought

to repudiate the doctrine that showing detriment was

enough to establish an ex post facto violation. “[MJere

disadvantage to the defendant will not result in an ex

post facto problem.” U.S. v. Johns, 5 F.3d 1267, 1271 (9th

Cir. 1993). Statutes violate the ex post facto clause only

when they come within four categories outlined in Calder

v. Bull, supra at 390. In the instant case, the only possible

applicable Calder category is the third. Respondent must

* Respondent misunderstands this argument when he

states there is no de minimis violation of the ex post facto clause.

Resp. Brief at 37. The primary jurisdictional issue is whether

petitioner failed to meet his burden of proof on habeas corpus,

as the petitioners failed to do in Collins and in Powell v. Duch-

arme, 998 F.2d 710, 715 (9th Cir. 1993).

show that the altered frequency of the parole suitability

hearings increases the punishment for his crime. Collins v.

Youngblood, supra at 42; see Miller v. Florida, 482 U.S. 423,

429 (1987); Malloy v. South Carolina, 237 U.S. 180, 183-184

(1915); Tapia v. Superior Court, 807 P.2d 434, 441 (Cal.

1991).

Thus a second weakness of Morales (and of Roller) is

that neither obeys this Court's explicit directive in Collins

that no harm to the inmate, no matter how substantial,

will implicate the ex post facto clause unless the changed

law is within one of four Calder categories.4 Roller, for

example, cites Collins as authority for the proposition that

“changes in the manner of reimposing sentence after the

original sentence is set aside” do not present ex post facto

problems. Roller v. Cavanaugh, supra at 123, fn. 4. Such use

* Respondent constantly confuses whether there is a fac-

tual basis for postponement of the suitability hearings with the

principal legal issue in Collins, i.e. whether the amended statute

increases the punishment for the crime. The amended statute

itself does not mandate postponement for all, i.e. it did not

expand “the class of prisoners subject to. . . delays” as respon-

dent claims. Resp. Brief at 4. Rather it is the facts of respondent's

case which, in the considered opinion of the prison board, led to

the postponement. Thus, it is erroneous to claim that respon-

dent was “categorically unsuited” for parole because of the

enactment of the amended statute (Resp. Brief at 39) or that “the

1981 amendment denies [parole] for three years.” Resp. Brief at

18. The amended statute provided for an exercise of discretion.

That exercise of discretion, embodied in the statutorily autho-

rized findings of the parole board, vitiates both the substantial

harm argument and the argument that the amendment works to

the harm of whole categories of inmates.

Tt teenie taaarciennainienemeels

of Collins betrays a misunderstanding of the importance

of that case.5

Yet another example of how this aspect of Collins has

not been honored in the parole area is Flemming v. Ore.

Bd. of Parole, 998 F.2d 721, 724-725 (9th Cir. 1993). First,

the main Collins holding regarding the Calder categories is

ignored. Id. at 723. Second, Weaver is read to hold that any

reduction of early release opportunities occasioned by the

reduction of credits against the sentence violates the ex

post facto clause. Id. at 724; Weaver v. Graham, 450 U.S. 24,

33 (1981). We are told that Weaver’s opportunity to

shorten his time in prison was the crucial factor in the

case, not whether or not the credits were part of the

sentence under Calder.®

In a similar fashion, Morales cites Collins solely for

the proposition that a more burdensome punishment

would be an ex post facto law, while ignoring the Calder

categories altogether. Morales v. Cal. Dept. of Corrections,

supra at 1003. Morales then cites Warden v. Marrero, supra

at 662 for the proposition that “the denial of parole is part

of a defendant’s punishment”. As »sinted out by the

States of Pennsylvania and Georgia in their amicus curiae

° Respondent makes much of cases which supposedly hold

that parole is annexed to the crime within Calder. Resp. Brief at

14, fn. 9. Of much greater concern in the instant case are those

courts which have chosen to ignore the necessity of making such

a finding, including the Ninth Circuit. See infra at 12 et seq.

® Similarly lacking in Collins/Calder analysis are Flemming v.

Oregon Bd. of Parole, 998 F.2d 721, 724-727 (9th Cir. 1993) and

Nulph v. Faatz, 27 F.3d 451, 454 (9th Cir. 1993). Even Powell v.

Ducharme, supra, a case which at least managed to reach the

right conclusion, fails to give proper deference to Collins.

‘

briefs, Marrero cannot stand for this broad proposition.

Brief of Amicus Curiae State of Pennsylvania at 4 et seq.;

Brief of Amicus Curiae State of Georgia at 6.

The point made by Marrero is that under the specific

sentencing statute in question, eligibility for parole was

determined at the time of sentencing and therefore was

part of the punishment pronounced in the case. To put it

another way, “parole eligibility [was] a function of the

length of the sentence fixed by the district judge”. Warden

v. Marrero, supra at 654.7

In Marrero, the parole board's discretion to decide the

prisoner’s release date did not override the sentencing

court’s decision because:

[I]t could not be seriously argued that sentenc-

ing decisions are made without regard to the

? Contrary to respondent's suggestion, California law does

not require that elaborate advisement of parole possibilities be

made during sentencing to an indeterminate term. As stated in

People v. Huynh, 281 Cal.Rptr. 785, 795 (Ct.App. 1991):

The United States Supreme Court has indicated

there is no federal constitutional requirement that the

state “furnish a defendant with information about

parole eligibility” prior to a guilty plea. (Hill v. Lock-

hart (1985) 474 U.S. 52, 56...) We do not regard the

ordinary minimum term before parole eligibility to be

a direct consequence of a conviction. . .

[D]efendant’s possible parole is dependent on the

Board of Prison Term’s evaluation of his conduct as a

prisoner. Elaborate judicial advice about the prospect

of parole and the effects of conduct and worktime

credits is not required. . . . We will not require trial

courts to read the Board of Prison Term’s parole eligi-

bility regulations to defendants in anticipation of a

guilty plea.

—————

— ———

period of time a defendant must spend in prison

before becoming eligible for parole, or that such

decisions would not be drastically affected by a

substantial change in the proportion of the sen-

tence required to be served before becoming

eligible [for parole].”

Id. at 658.

Thus, an inmate under a hypothetical system of state

sentencing who received a determinate sentence and

parole would present the clearest case for an ex post facto

argument if the determinate term of parole was later

changed to the inmate’s detriment. An inmate who

received a 15-year term for murder and a subsequent

5-year parole term pronounced at the time of sentence

would clearly be within the third category of Calder if the

term of parole were later amended to a 10-year term.®

On the other hand, an inmate sentenced to an inde-

terminate term, with parole suitability to be determined

later by the parole board, has no ex post facto claim if the

board later decides to review his suitability for parole

every three years instead of annually. A “pragmatic view

of sentencing” (id. at 654) should govern, and the princi-

pal issue should be whether the parole in question is

integral to the sentence, i.e. was pronounced as part of or

as a contemporaneous adjunct to a term of years. If it is

not, then the “parole [issue] arises after the end of the

criminal prosecution, including imposition of sentence”

* This form of rigid determinism is apparent in the pre-

Guidelines federal sentencing discussed in Marrero as well as

the current Guidelines sentencing. See U.S. v. Seacott, 15 F.3d

1380,.1384 (7th Cir. 1994).

10

and therefore cannot be within Calder or Collins. Morrissey

v. Brewer, 408 U.S. 471, 480 (1972); Warden v. Marrero,

supra at 659, fn. 9.9

Marrero contains dicta which may be misinterpreted

because of a .onfusion in the meaning of the term “parole

eligibility”:

There are additional reasons [not arising from

statutory interpretation] for believing that the

no-parole provision is an element of respon-

dent’s “punishment.” First, only an unusual

prisoner could be expected to think that he was

not suffering a penalty when he was denied

eligibility for parole. . . . Second, a repealer of

parole eligibility previously available to

imprisoned offenders would clearly present the

serious question under the ex post facto

clause .. . of whether it imposed a “greater or

more severe punishment than was prescribed by

law at the time of the... offense”. . .

Id. at 662-663. The phrase “parole eligibility” as used in

Marrero does not have the same meaning as the phrase

“parole suitability” in California law. “Parole eligibility”

refers to the general possibility of parole. “Parole suit-

ability” is a term of art with precise technical meaning. !°

’ Those cases which emphasize that there is no ex post

facto violation where the parole board has great discretion are

explainable as cases which hold there is such a great separation

between the imposition of the criminal sentence and the setting

of a parole date as to vitiate any claim that parole is linked to the

sentence. See Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994);

Freeman v. State, 809 P.2d 1171, 1176 (Ida. 1991).

'© For example, respondent uses the term “parole considera-

tion”. Resp. Brief at 6. Such imprecise phrasing illustrates the

1]

Marrero must be read to say that a penalty is length-

ened within the ex post facto clause when an inmate who

might have paroled at the time of the commission of his

offense is held to be denied any possibility of parole by a

subsequent law. By contrast in the instant case, a Califor-

nia inmate who receives an extension of the time between

parole suitability hearings is necessarily one sentenced to

an indeterminate life sentence and therefore there are no

defined or specific number of years in his term. More-

over, under California law the inmate has no specific date

when he must be given parole and no commitment has

been made to give the inmate parole. See generally In re

Jackson, 703 P.2d 100, 101 (Cal. 1985).

Therefore, the “parole eligibility” situation presented

in Marrero is not now before this Court. Marrero deals

with a change in the minimum number of years before

parole becomes a possibility and its broad language has

been misinterpreted by courts to cover every aspect of the

parole process. The salient features of the California

parole procedure in the instant case present an oppor-

tunity for this Court to correct this misinterpretation and

remind the lower courts of the primary analysis set forth

in Collins. Unlike Marrero, the instant case deals with an

inmate whose parole suitability is unconnected with the

sentence pronounced by the trial court. The indetermi-

nate life sentence received by the respondent contained

no promise of parole, let alone a date certain for parole.

Indeed, the respondent's prospects for obtaining a parole

need to closely examine the relevant California law. An inmate

is before the Board of Prison Terms to determine his suitability

for parole and not to consider his eligibility for parole.

12

date are so speculative that it would be a waste of time to

consider his status annually and the parole board so

found as it was required to do by state law. See Cal. Penal

Code section 3041.5(b)(2)(B).

Petitioners have previously pointed out that the cases

cited by Roller have incorrectly reasoned that a retroactive

reduction in the frequency of parole consideration vio-

lates the ex post facto clause. Pet. Brief on the Merits at 19

et seq. It is instructive to review these cases and those

cited in Morales and Flemming in light of what appears to

be a reasonable interpretation of Marrero. See Roller v.

Cavanaugh, supra at 123; Morales v. Cal. Dept. of Corrections,

supra at 1004; Flemming v. Ore. Bd. of Parole, supra at 724.

In Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977), the

parole board during its 1977 parole revocation considered

a 1976 parole criterion which was not in effect when the

inmate was convicted in 1972. Id. at 652. Citing Marrero

for the proposition that parole eligibility is an integral

part of the sentence, the court found that use of the new

criterion was a violation of the ex post facto clause.!! Id.

at 654.

'! Inter alia, the court cited Love v. Fitzharris, 460 F.2d 382

(9th Cir. 1972), vac. as moot, 409 U.S. 1100. Léve is close to Morales

in that Love held that the minimum period of time prior to

parole eligibility may not be changed to the inmate’s detriment

without implicating the ex post facto clause. Love is regularly

cited despite the fact that the opinion was vacated by this Court

and is a nullity. Roller v. Cavanaugh, supra at 123; e.g. Warden v.

Marrero, supra at 663; U.S. v. Paskow, 11 F.3d 873, 878 (9th Cir.

1993); Akins v. Snow, 922 F.2d 1558, 1561 (11th Cir. 1991).

13

In fact, Shepard is primarily a case turning on detri-

ment analysis rather than the Collins/Calder analysis. Id.

Although Calder is mentioned in Shepard, Marrero is taken

to mean that “parole eligibility is considered an integral

part of any sentence”. Therefore, “official post-sentence

action that delays eligibility for supervised release runs

afoul of the ex post facto proscription”. Moreover, based

upon a rather broad reading of Lindsey v. Washington, 301

U.S. 397 (1937), Shepard concludes that the ex post facto

clause has been transgressed “even if the maximum statu-

tory penalty for the crime remains unchanged.” Shepard v.

Taylor, supra.

Rodriguez v. U.S. Parole Comm., 594 F.2d 170 (7th Cir.

1979) follows the letter of the law in declaring the princi-

pal issue to be whether a particular parole procedure

makes the punishment for a crime more burdensome. Id.

at 173. However, Rodriguez then cites Marrero for the

proposition that when Congress had made it clear that

the parole procedure was part of punishment, parole is an

extension of the sentencing process, the ex post facto

clause is brought into play. Id. at 175-176. Rodriguez and

Marrero are similarly limited to their facts and cannot be

used to generalize about all revisions of parole pro-

cedures.

U.S. ex rel. Graham v. U.S. Parole Comm., 629 F.2d 1040

(Sth Cir. 1980) concerned the timing of parole hearings.

Most instructive is its use of two hypothetical situations

which illustrate the court’s concept of ex post facto doc-

trine. Id. at 1043-1044.

Assume that, under the amended regulations,

the Parole Commission schedules Prisoner X at

his initial hearing for presumptive release in

14

three years and six months. Two years later, at

X’s interim hearing, the evidence reveals that he

has been a model prisoner and has attained a

college degree since the time of his initial hear-

ing. If the Parole Commission does not deem

these circumstances “clearly exceptional” [as

required under the amended subsequent regula-

tions], then it will not advance X’s presumptive

release date, and he will be required to spend

another year and a half in jail. Now assume that

X's parole eligibility is governed by the regula-

tions in effect in 1974 [, prior to the amendment

of the regulations]. At X’s three-year review

hearing, the Parole Commission, unconstrained

by a “clearly exceptional circumstances” stan-

dard, might well be convinced by the same evi-

dence to advance his presumptive release date

six months and release him immediately. Thus,

in this scenario, the net effect of the “clearly

exceptional circumstances” is to postpone X’s

release on parole and keep him incarcerated for

an additional six months.

The court’s implication is that if the Parole Commission

feels itself constrained by the new standard, this would

be a violation of the ex post facto clause. Clearly, Graham

is both a procedure/substance and a substantial detri-

ment case and therefore it lacks the Collins analysis. Its

“procedure-substance” distinction discredits it under Col-

lins. Id. at 1044. Its utility is limited by its failure to

discuss Calder and its assumption that Marrero had deter-

mined that all ~arole procedures were within Calder. Id. at

1042-1043. Moreover, the court seems to imply that if the

Parole Commission's discretion is exercised in any way

but one, it violates the Constitution. The court seems to

15

override the parole board’s discretion without consider-

ation of the connection between the criminal sentence

and the timing of the parole hearings.

Fender v. Thompson, 883 F.2d 303 (4th Cir. 1989) uti-

lizes the Marrero dictum that a repealer of parole eligi-

bility previously availabie would create a serious ex post

facto question. Id. at 305; Warden v. Marrero, supra at 663.

Without further discussion, the court then held that a

subsequent statute which withdrew parole eligibility alto-

gether was a violation of the ex post facto clause.!2

Watson v. Estelle, 859 F.2d 105 (9th Cir. 1988) is clearly

a dead letter, having been vacated and replaced by the

Opinion at 886 F.2d 1093 (9th Cir. 1989). The latter case

finds that the parole procedure in question was not more

onerous than the prior state of the law and therefore

could not be a constitutional violation. Id. at 1071.

Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991), cert. den.,

111 S.Ct. 2915 is, like Rodriguez, squarely on point. How-

ever, its holding is questionable because it does not deal

with the primary issue in Collins, whether the particular

parole procedure comes within the Calder categories. /d.

at 1561. Akins assumes it does and cites Rodriguez for the

point that the ex post facto clause is implicated when an

opportunity for parole that existed prior to the alteration

of the parole rules is eliminated. Id. at 1562. Finally, Akins

cites Marrero as support for the proposition that parole

'2 The same weaknesses in Fender are replicated in U.S. v.

Meeks, 25 F.3d 1117, 1120 (2d Cir. 1994), a case which relies on

Fender as precedent. Meeks baldly states that supervised release

and parole are an integral part of the punishment for the under-

lying offense. Id. at 1121.

16

eligibility procedures are subject to ex post facto limita-

tions. Id. at 1563. Akins was wrongly decided because it

rests on overly broad interpretations of Marrero and

Rodriguez.

Williams v. Bd. of Parole, 812 P.2d 443 (Ore. 1991) holds

the same as Flemming with regard to a change in the

State’s calculation of sentence reduction. The 1991 opin-

ion is rather cursory and the more trenchant superseding

opinion is reported at 828 P.2d 465 (1992). However, the

successor opinion is devoid of any discussion of Calder

and is not of any greater value than Flemming on the

particular point of law in question. In the second round,

although the state properly pointed out that the Oregon

Court of Appeals first had to consider whether the new

rules were part of the law annexed to the offense when it

was committed, i.e. that Calder categorization was the

first step, the court simply stated that Weaver foreclosed

the inquiry. Williams holds in imprecise fashion that:

[A]n enactment that substantially alters the con-

sequences attached to a completed crime

changes the “quantum of punishment” and can-

not be applied if it operates to a prisoner's

detriment.

Id. at 466. The fact that such a statement could be made in

1992, two years after Collins, and in an opinion which

does not cite to Collins at all, indicates how far courts

have strayed from the plain and simple meaning of Col-

lins.

These cases, in sum, evidence a fundamental failure

to understand the main Collins/Calder analysis or to apply

Marrero in a correct and limited fashion. In the field of

17

parole, therefore, this Court is faced with a plethora of

cases which are overbroad and overintrusive into an area

of fundamental state concern, the parole of inmates.

Unless this Court takes firm action, the incorrect analysis

contained in the principal cases will justify the wholesale

revision of parole by the district courts.

S

CONCLUSION

The Ninth Circuit erred in this case in two ways.

First, it substituted a supposition of harm for the showing

of substantial detriment required by section 2241 and

Weaver. Second, it has failed to follow the Collins/Calder

analysis and has assume © ‘ths all parole procedures, no

matter what their specific technical and legal context, are

part of punishment, i.e. always within the third Calder

category.

Either is a strong basis for reversal, but a review of

the principal cases dealing with claims of ex post facto

parole procedures evidences a confusion so great about

basic principles that this Court should state the true

meaning of Marrero as it applies to parole procedures.

When Collins issued, it was conceivable that its main and

concurring opinions could have existed in harmony with

each other. The instant case and Roller clearly indicate

that this conceivable harmony has not been achieved and

18

that this Court should indicate to its subordinate courts

which analysis they must follow in the future.

Respectfully submitted,

Danie E. LUNGREN,

Attorney General of the

State of California

GeorGe WILLIAMSON,

Chief Assistant Attorney General

JAMES CHING,

Supervising Deputy Attorney

General

Counsel of Record

Attorneys for Petitioners

Dated: December 19, 1994