# Reply Brief — California Dept. of Corrections v. Morales

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0500%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 499

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0500%3A08. Public record. Not legal advice.