Petition for Writ of Certiorari — Garner v. Jones

ee ne

Supreme Court, U.S.

. FILED

: = BO 137 JH 19 19%

In The OFFICE OF THE CLERK

Supreme Court of the United States

e

J. WAYNE GARNER, former Chairman of the State

Board of Pardons and Paroles of the State of Georgia,

JAMES T. MORRIS, former Chairman of the State

Board of Pardons and Paroles of the State of Georgia,

GARFIELD HAMMONDS, JR., former Chairman of the

State Board of Pardons and Paroles of the State of

Georgia, BOBBY K. WHITWORTH, Member of the

State Board of Pardons and Paroles of the State of

Georgia, and TIMOTHY E. JONES, former Member

of the State Board of Pardons and Paroles

of the State of Georgia,

Petitioners,

V.

ROBERT L. JONES,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

eo

PETITION FOR A WRIT OF CERTIORARI

¢

Nea B. CHILDERS

Senior Assistant Attorney

General

Counsel of Record

for Petitioners

THursert E. BAKER

Attorney General

Please serve: Mary BetH WestTMoRELAND

—“— Deputy Attorney General

40 Capitol Square, SW CHRISTOPHER S. BRASHER

Atlanta, Georgia 30334-1300 Senior Assistant Attorney

(404) 656-3355 General

— —- —

—$——. —

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The State of Georgia, through its State Board of Par-

dons and Paroles, makes provision for the exercise of

executive clemency in the case of individuals convicted of

violations of Georgia’s criminal statutes. Both the Supreme

Court of Georgia and the United States Court of Appeals

for the Eleventh Circuit have surveyed the relevant Geor-

gia statutory and constitutional provisions and have con-

cluded that the Board, in the exercise of the clemency

power, exercises “virtually unfettered discretion.”

Except as otherwise provided by law, inmates serving

sentences of life imprisonment become eligible for the

exercise of the Board’s powers after the service of seven

years’ imprisonment. The Board is authorized to provide,

by regulation, for eligibility for reconsideration of those

inmates considered for, but denied, parole.

The questions presented are:

5.

Whether the ex post facto clause of the

United States Constitution bars the State from

applying its amended regulation governing the

reconsideration schedule for life-sentenced

inmates who have been denied parole, when the

amendment has no effect on the sentence

imposed, the substantive formula for the consid-

eration of the prisoner for parole, or the deter-

mination of the prisoner’s eligibility for parole,

or whether the change creates only “the most

speculative and attentuated possibility of pro-

ducing the prohibited effect of increasing the

measure of punishment.”

**

QUESTIONS PRESENTED - Continued

2.

Whether the decision below conflicts with

the decisions of other United States Courts of

Appeals and the appellate courts of the several

states as to the meaning and import of this

Court’s decisions in California Dep't of Correc-

tions v. Morales and Lynce v. Mathis.

eee

PARTIES TO THE PROCEEDING

The parties to the proceedings in the Court of

Appeals and in the District Court were as listed in the

caption. For the purposes of Respondent's claims for

declaratory and injunctive relief, pursuant to Rule 25(d)

of the Federal Rules of Civil Procedure, the Petitioners

are Walter S. Ray, Chairman, Bobby K. Whitworth, Gar-

tield Hammonds, Jr., Dr. Betty Ann Cook, and Dr. Eugene

P. Walker, the current members of the Board.

iV

TABLE OF CONTENTS

QUESTIONS PRESENTED .......... 2... 66 00000 eees

PARTIES TO THE PROCEEDING .............5055.

TABLE OF CONTENTS. ..........2 0c ececececeecees

TABLE OF AUTHORITIES... .. 2... 0.066660 e ewe ees

CRENIONS BELOW... cc cece ccc ccccccccccccccccess

IS TRIS «ccc ccccccccccccsccscecceccceccceses

CONSTITUTIONAL PROVISIONS. .. 0.0.0 .......55.

ERG ccccccccctesccdccccoscececevceaesscenes

A.

Bb.

CLAIMS AND FACTS .....-ccccccccccvcccess

PROCEEDINGS BELOW ...... 2.0.0.0... 6.545.

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

PHE ELEVENTH CIRCUIT PLACED THE BUR-

DEN OF PROOF ON PETITIONERS, CON-

TRARY TO THE HOLDINGS OF THIS COURT,

THE FOURTH CIRCUIT, AND THE NINTH CIR-

THE DECISION OF THE COURT OF APPEALS

IS INCONSISTENT WITH THE RECENT DECI-

SIONS OF THIS COURT AND THE CONSTRUC-

TION OF THOSE DECISIONS BY THE OTHER

CIRCUITS AND THE APPELLATE COURTS OF

THE SEVERAL STATES. .......2ccccccccesccees

CRS 0 ves cccccccsccccescecesncossocceoucs

BIIEX TOD APP GEIES ccc cccccccccccccccccccsscces

RE eo cnc ctcccccccccccccccsesccesccaceveeses

v

TABLE OF AUTHORITIES

Page

Cases

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

Pe ee Se Se cercctsrceccocsssscessas ee 9

Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995)............. s

Bailey v. Noot, 503 U.S. 952, 112 S.Ct. 1516, 117

L.Ed.2d 652 (1992)......... ‘pendtdedeahecetsces ace 7

California Dep't of Corrections v. Morales, 514 U.S. 499,

115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) ......3, 4, 5, 6, 7

Fletcher v. Williams, 179 Ill. 2d 225, 688 N.E.2d 635

SOO oecbceccdecnnevicenesctesdeecsashendeeeences: 8

Furnart v. Zavaras, 914 P.2d 508 (Colo. App. 1996) ..... 8

Hamm v. Latessa, 72 F.3d 947 (1st Cir. 1995), cert.

Se, Cs Ce Enns Ge sedccudaccescccecces 7

Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995) ............ 8

Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996), cert.

SI, TE ee He Sev tedccserccncesscssases 6

Jones v. Garner, 164 F.3d 589 (11th Cir. 1999) ....... 5

Jones v. Georgia State Board of Pardons and Paroles,

SP ee CE Se GE SE Shh cde desicccscccaves 2

Jordan v. Tennessee Board of Paroles, 1997 Tenn. App.

LEXIS 27 (Tenn. App. January 15, 1997)............ 8

Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137

SE GP COs bncunneeccdedbcdecssncctescess O

Phelps v. Traugher, 1996 U.S. App. LEXIS 8009 (6th

I = s

Roller v. Gunn, 107 F.3d 227 (4th Cir.), cert. denied,

Se Ss Ge Si cccrddndnddoniensesesecesss 5, 6, 8

Shabazz v. Gabry, 123 F.3d 909 (6th Cir.), cert.

CO Se Ge Ge Pes cccccstccccccnicevevees 8

1

vi

TABLE OF AUTHORITIES — Continued PETITION FOR A WRIT OF CERTIORARI

Page Petitioners respectfully pray that a writ of certiorari

Tuff v. State, 1999 Fla. App. LEXIS 6424 (Fla. App. issue to review the judgment and opinion of the United

May 19, 1999) .........ccccccccccccrecccsceceeceees 8 States Court of Appeals for the Eleventh Circuit entered

Vargas v. Morris, 266 Ga. 141, 465 S.E.2d 275, cert. in the above-entitled proceeding on January 6, 1999.

denied sub nom Vargas v. Garner, ___ US. __, 116 ;

S.Ct. 1329, 134 L.Ed.2d 480 (1996) ..........-.05055 2 |

OPINIONS BELOW

STATUTES = pe re , ‘a 7

ini the United States Court o als for

.C.G.A. © 42-9-GSla) 2... ccc ccc ccc cece renee cccsees 2 e opinion o ppe

papeoialk 7 > the Eleventh Circuit is reported as Jones v. Garner, 164

OLGA. 6 BOD 600. cccsccsscccccsccescccesssess Bd Seb Ghith Che. $000, and bo ciated on Aanontin A.

Ga. Admin. Comp. @ ey. OS oe. errr ~ infra, la. The order on the merits by the United States

District Court for the Northern District of Georgia, No.

1:95-cv-3012-CAM (August 25, 1997), is priuted as

Appendix B, infra, 20a.

JURISDICTION

The court of appeals entered its opinion and judg-

ment on January 6, 1999 (App. A, infra, 1a) and entered its

denial of Petitioners’ Motion For Rehearing and Sugges-

tion of Rehearing En Banc on April 19, 1999 (App. C,

infra, 30a). The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. I, § 10:

No State shall ... pass any ... ex post

facto Law .

S

STATEMENT

A. Claims and Facts

The State of Georgia, through its State Board of Par-

dons and Paroles, makes provision for the exercise of

executive clemency in the case of individuals convicted of

violations of Georgia’s criminal statutes. Both the Supreme

Court of Georgia and the United States Court of Appeals

for the Eleventh Circuit have surveyed the relevant Geor-

gia statutory and constitutional provisions and have con-

cluded that the Board, in the exercise of the clemency

power, exercises “virtually unfettered discretion.” Jones v.

Georgia State Board of Pardons and Paroles, 59 F.3d 1145, 1150

(11th Cir. 1995); see also Vargas v. Morris, 266 Ga. 141, 465

S.E.2d 275, cert. denied sub nom Vargas v. Garner, __ US.

__, 116 S.Ct. 1329, 134 L.Ed.2d 480 (1996).

Except as otherwise provided by law, inmates serving

sentences of life imprisonment become eligible for the

exercise of the Board’s powers after the service of seven

years’ imprisonment. O.C.G.A. § 42-9-45(b). The Board is

authorized to provide, by regulation, tor eligibility for

reconsideration of those inmates considered for, but

denied, parole. O.C.G.A. § 42-9-45(a).

Prior to 1979, the Board’s regulations provided that

life sentenced inmates considered for, but denied, parole

would be reconsidered on an annual basis. In 1979, due to

increases in the prison population, the Board amended its

regulation so as to provide for reconsideration of these

inmates no less than every three years (while retaining

the discretion to consider the inmate sooner). This

amendment was applied by the Board to all life-sen-

tenced inmates, including those whose crimes had been

committed prior to 1979.

In 1985, as Georgia’s prison population continued to

increase, and in an attempt to provide life sentenced

inmates with a more realistic assessment of their chances

for release on parole, the Board again amended its policy

to provide for parole reconsideration no less than every

eight years. Again, the Board retained the discretion to

consider the prisoner more frequently. This amendment

was likewise applied to all life-sentenced inmates, includ-

ing those whose crimes had been committed prior to

1979. Ga. Admin. Comp. Ch. 475-03-.05(2).

Prisoners convicted of crimes committed prior to

1985 challenged the retroactive application of the

amended regulation. The United States Court of Appeals

for the Eleventh Circuit found that the retroactive appli-

cation of the amended regulation violated the ex post

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

denied, 501 U.S. 1260 (1991).

In 1995, this Court decided the case of California Dep't

of Corrections v. Morales, 514 U.S. 499 (1995). In Morales,

this Court ruled that a retroactive application of a revi-

sion to the schedule for the reconsideration of prisoners

previously denied parole was not an ex post facto viola-

tion, so long as the change created no real, practical effect

upon the prisoner’s chances for parole. Based upon

advice from the Attorney General of Georgia that the

Court's decision in Morales was inconsistent with the

Eleventh Circuit’s holding in Akins, the Board resumed

retroactive application of its amended regulation.

On July 23, 1974, Respondent had been sentenced to

life imprisonment following his conviction for the murder

of Jack Bell in the Superior Court of Fulton County,

Georgia. On November 24, 1979, Respondent escaped

from custody. While on escape, Respondent murdered

Frances Tutt Davis. Respondent was convicted of her

murder, and again sentenced to life imprisonment, in the

Superior Court of Fulton County on August 20, 1982.

Respondent was initially considered for, and denied,

parole in September, 1989. He was reconsidered, and

again denied, in September, 1992. Respondent was con-

sidered a third time, and again denied parole, in Septem-

ber, 1995. At that time, Respondent was advised that his

next reconsideration would come within the next eight

years.

B. Proceedings Below

Respondent brought suit, contending that retroactive

application of the amendment violated the ex post facto

clause of the United States Constitution. Respondent

sought damages, as well as a declaratory judgment that

the application of the amended regulation in his case

violated the ex post facto clause.

Following a period of discovery, the parties filed

cross-motions for summary judgment. The District Court

granted summary judgment to the Board, finding that, as

in Morales, the amended regulation “creates ‘only the

most speculative and attenuated possibility of producing

the prohibited effect of increasing the measure of punish-

ment.’ ”

On appeal, a panel of the Eleventh Circuit reversed

and remanded. The Court held that Morales reinforced its

earlier holding in Akins, that the record did not support a

finding that the amendment did not have the purpose or

effect of increasing the quantum of punishment, and

accordingly reversed the grant of summary judgment to

the Board. The Court subsequently denied the Board’s

Motion for Rehearing with Suggestion for Rehearing en

banc.

¢

REASONS FOR GRANTING THE WRIT

I. THE ELEVENTH CIRCUIT PLACED THE BURDEN

OF PROOF UPON PETITIONERS, CONTRARY TO

THE HOLDINGS OF THIS COURT, THE FOURTH

CIRCUIT, AND THE NINTH CIRCUIT.

The Eleventh Circuit placed upon Petitioners the bur-

den of showing that the application of Ga. Admin. Comp.

Ch. 475-3-.05(2) would not pose a risk of increasing Plain-

tiff’s sentence. Jones, 164 F.3d at 596. This was plain error.

In any ex post facto inquiry, the burden is on the prisoner

to demonstrate that the law in question will, as applied to

his case, violate the ex post facto clause. Lynce v. Mathis,

519 U.S. 433, 117 S.Ct. 891, 897-98 (1997) explaining Cali-

fornia Dep't of Corrections v. Morales, 514 U.S. __, 115 S.Ct.

1597 (1995). See also Roller v. Gunn, 107 F.3d 227, 237 (4th

Cir.), cert. denied, 522 U.S. 874 (1997), quoting Johnson v.

Gomez, 92 F.3d 964, 968 (9th Cir. 1996), cert. denied, 520

U.S. 1242 (1997) (after Morales, the prisoner bears the

burden of demonstrating “... ‘with assurance’ ... that

he would have received parole under the old system”).

The Eleventh Circuit erred in shifting this burden to the

Board. The transfer of the burden of proof was plain error

and conflicts squarely with this Court’s own explanation

of its holding in Morales. This decision also conflicts with

the decisions of the Fourth and Ninth Circuits, which

have squarely placed the burden of proof on the prisoner.

Il. THE DECISION OF THE COURT OF APPEALS IS

INCONSISTENT WITH THE RECENT DECISIONS

OF THIS COURT AND THE CONSTRUCTION OF

THOSE DECISIONS BY THE OTHER CIRCUITS

AND THE APPELLATE COURTS OF THE SEV-

ERAL STATES.

This Court has recently illustrated the proper

approach to applying the ex post facto clause in California

Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597,

131 L.Ed.2d 588 (1995), and Lynce v. Mathis, 519 U.S. 433,

117 S.Ct. 891, 137 L.Ed.2d 63 (1996). When “[t]he amend-

ment creates only the most speculative and attenuated

possibility of increasing the measure of punishment for

covered crimes,” Morales, 514 U.S. at 509, and “the change

at issue hals] neither the purpose nor the effect of

increasing the quantum of punishment,” Lynce, 117 S.Ct.

at 897, then the retroactive application of a new statute,

regulation, or procedure does not violate the ex post facto

clause.

In the case at bar, it is clear that application of the

“set off” regulation to Respondent will not affect his

ultimate date of release. Once an inmate becomes eligible

for parole, the Board exercises unfettered discretion in

determining whether or not to grant parole in an individ-

ual case and, if so, when release is to be granted. Stated

bluntly, the Board has determined that, based upon the

facts known to the Board about his case, Respondent may

not reasonably expect to be paroled within the next eight

years. It defies reason to suggest, as the Eleventh Circuit

has done, and as proper ex post facto jurisprudence

would require if that decision be sustained, that mere

repetitive viewing of his file during the interim would

change that conclusion.

In the short time since Akins was decided, it has been

widely cited for its application of the ex post facto

clause.' As Justices White and Blackmun prophetically

noted, the Circuits were divided on the issue of the

proper application of the ex post facto clause to parole

reconsideration schedules as early as 1992 and, as they

also predicted, the issue arises frequently. Bailey v. Noot,

503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992)

(White, J., dissenting). Subsequent to Morales, the First,”

' Shepard’s citations showed “21 Citing References” to

Akins, supra, on July 12, 1999.

2 Hamm v. Latessa, 72 F.3d 947, 957-59 (1st Cir. 1995), cert.

denied, 519 U.S. 836 (1996).

Fourth,’ Fiftth,4 and Sixth® Circuits have expressly

rejected the Eleventh Circuit's application of ex post facto

principles to parole reconsideration scheduling, as have

state appellate courts in Colorado,® Florida,’ Illinois,* and

Tennessee.” In light of the split in the circuit courts and

state appellate courts on this issue, and the current activ-

ity in the district courts, the federal courts most certainly

will continue to be faced with the question of the proper

application of the ex post facto clause to parole recon-

sideration schedules. This Court should accept certiorari

of this important decision now, rather than to delay and

allow this confusion, with its disruption of state planning

and budgeting, to continue.

—— -— -—-_— —. ¢ ———- ———_—

> Roller vo. Gunn, 107 F.3d 227, 234-37 (4th Cir.), cert. denied,

522 U.S. 874 (1997); Hill v. Jackson, 64 F.3d 163, 167-71 (4th Cir.

1995).

4 Allison v. Kyle, 66 F.3d 71, 74-75 (Sth Cir. 1995).

5 Shabazz v. Gabry, 123 F.3d 909, 913-916 (6th Cir), cert.

denied, 522 U.S. 1019 (1997); Phelps v. Traugher, 1996 U.S. App.

LEXIS 8009 (oth Cir. Tenn. Mar. 20, 1996).

© Furnari v. Zavaras, 914 P.2d 508, 509-11 (Colo. App. 1996).

” Tuff v. State, 1999 Fla. App. LEXIS 6424 (Fla. App. May 19,

1999).

§ Fletcher v. Williams, 179 IL. 2d 225, 235-36, 688 N.E.2d 635,

641-42 (1997).

* Jordan v. Tennessee Board of Paroles, 1997 Tenn. App. LEXIS

27 (Tenn. App. January 15, 1997).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Tuurserr E. Baker 033887

Attorney General

Mary Ber Westmoretanp 750150

Deputy Attorney General

CrrisrorHer S. BRASHER 078330

Senior Assistant

Attorney General

Neat B. Cripers 124410

Senior Assistant

Attorney General

Please address all

communications to:

Neat B. Critpers

Senior Assistant Attorney General

40 Capitol Square, S. W.

Atlanta, GA 30334-1300

Telephone: (404) 656-3355

Appendix “A”

Appendix “B”

Appendix “C”

la

INDEX TO APPENDIX

Page

Opinion of the Court of Appeals .... la

Decision of the United States

District Court For the Northern

District of Georgia. ................ 20a

Denial of Motion for Rehearing

and Suggestion of Rehearing En

ee ee Wa

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-9009

D. C. Docket No. 1:95-cv-3012-CAM

ROBERT L. JONES,

Plaintiff-Appellant,

versus

J. WAYNE GARNER, Employed as Chairman,

State Board of Pardons and Paroles, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

(January 6, 1999)

Before BIRCH and BARKETT, Circuit Judges, and

HANCOCK", Senior District Judge.

BARKETT, Circuit Judge:

Robert Jones appeals the district court's order grant-

ing summary judgment to defendants J. Wayne Garner

and other former and current members of the Georgia

Board of Pardons and Paroles (“the Board”) on Jones’

claim that the retroactive application of amendments to

* Honorable James H. Hancock, Senior U.S. District Judge for

the Northern District of Alabama, sitting by designation.

2a

the Georgia regulations governing parole consideration,

Ga. Comp. R. & Regs. r. 475-3-.05.(2) (1986), violated the

Ex Post Facto Clause of Article L, § 10 of the United States

Constitution. In Akins v. Snow, 922 F.2d 1558 (11th Cir.

1991), we held that retroactive application of

r. 475-3-.05(2) violated this clause’s prohibition on ex post

facto laws. After the Supreme Court decided California

Dep't of Corrections v. Morales, 514 U.S. 499 (1995), in

which it held that the retroactive application of a legisla-

tive amendment to the California parole regulations that

decreased the frequency of parole suitability hearings in

certain circumstances did not represent an ex post facto

violation, the Board concluded that Akins had been over-

ruled and scheduled Jones’ next hearing for 2003 pur-

suant to the rule promulgated in 1986. The district court

agreed that Morales overruled Akins, and granted sum-

mary judgment to the defendants. We find that Morales

reinforced our holding in Akins, and pursuant to Morales

and Akins, we REVERSE.

l. Background

The facts of this case are not in dispute. In July 1974,

Jones was sentenced in the Superior Court of Fulton

County, Georgia, to life in prison for murder. In August

of 1982 he was again sentenced in the same court to life in

prison for murder on subsequent charges. At the time of

Jones’ second offense, the state regulations governing

parole consideration required that he first be considered

for parole after seven years and, if parole was not granted

at that time, that he be considered every three years

thereafter. After Jones was incarcerated but before he was

initially considered for parole, the Board amended its

3a

rules to require that parole reconsideration take place

only once every eight years. See Ga. Comp. R. & Regs.

r. 475-3-.05.(2).!

Jones was initially considered for parole in 1989,

seven years after his 1982 conviction, and parole was

denied. At that time, rather than scheduling Jones for a

rehearing after three years as provided for by the Board

rules at the time of the offense, the Board scheduled Jones

for reconsideration eight years later, in 1997. In the mean-

time, however, this Court decided Akins v. Snow, 922 F.2d

1558 (11th Cir. 1991), in which it held that the retroactive

application of r. 475-3-.05.(2) violated the Ex Post Facto

Clause of Article |, § 10 of the United States Constitution.

As a result, Jones was reconsidered for parole in three

year intervals, in 1992 and again in 1995. In 1995, how-

ever, the Supreme Court decided California Dep't of Cor-

rections v. Morales, 514 U.S. 499 (1995). The Board read

Morales to overrule Akins, and as a consequence, rather

than scheduling Jones’ next consideration for 1998, the

Board scheduled Jones for reconsideration in 2003 (eight

years later).

' As amended, the regulation relating to frequency of

parole reconsideration reads as follows:

Reconsideration of those inmates serving life

sentences who have been denied parole shall take

place at least every eight years. The Board will inform

inmates denied parole of the reasons for such denial

without disclosing confidential sources of

information or possible discouraging diagnostic

opinions.

Ga. Comp. R. & Regs. r. 475-3-.05.(2).

4a

In 1995, following the Board’s rescheduling of his

next parole reconsideration for 2003, Jones filed a pro se

§ 1983 action in the Northern District of Georgia, alleging

that the Board’s action violated several of his constitu-

tional rights. The district court dismissed his complaint

as frivolous on all counts. Jones appealed the dismissal,

and a panel of this Court reversed in part, finding Jones's

allegation of an Ex Post Facto Clause violation not to be

frivolous. On remand, both parties filed motions for sum-

mary judgment. The district court granted defendant's

motion for summary judgment and denied Jones’ motion

on the ground that Morales had overruled Akins. Jones

now appeals.

Il. Discussion

The Constitution provides that “[n]o State shall

... pass any ... ex post facto Law. ...” U.S. Const. art. L,

§ 10, cl. 1. At the time of the drafting of the Constitution,

the phrase “ ‘ex post facto law’ was a term of art with a

well-established meaning.” Akins v. Snow, 922 F.2d at

1560. In Calder v. Bull, 3 U.S. (Dall.) 386 (1798), the

Supreme Court “identified several legislative acts that

clearly implicated the core concerns” with respect to ex

post facto laws that existed at the time the Constitution

was written. Akins, 922 F.2d at 1560-61. Included in such

legislative acts was any law ” . . . that changes the punish-

ment, and inflicts a greater punishment, than the law

annexed to the crime, when committed.” Akins, 922 F.2d

at 1560-61 (quoting Calder, 3 U.S. (Dall.) at 390 (emphasis

in original)). The Supreme Court's ex post facto rulings

have continued to adhere to the original principle that

5a

laws with this effect violate the Constitution’s ex post

facto prohibition. See id. (collecting cases).?

Aikins v. Snow

In Akins, this Court considered an ex post facto chal-

lenge to the retroactive application of the amendments to

Georgia's regulations governi: , parole consideration at

issue here, see Ga. Comp. R. & Regs. r. 475-3-.05.(2), and

held such application to violate the proscription against

laws “ ‘that change| | the punishment, and inflict[ | a greater

punishment than the law annexed to the crime when com-

mitted.’ ” Akins, 922 F.2d at 1560-61 (quoting Calder, 3

U.S. (Dall.) at 390 (emphasis in original)). When the

crimes for which the petitioners in Akins were convicted

were committed, “the Board’s rules required the Board to

initially consider an inmate serving a life term for parole

after serving seven years of his life sentence.” Id. at 1560.

If the inmate was denied parole at that time, he would

receive reconsideration every year thereafter. See id. The

regulation was subsequently amended so that “[parole

rjeconsideration of those inmates serving life sentences

who have been denied parole shall take place at least

every eight years.” Ga. Comp. R. & Regs. r. 475-3-.05.(2).

Applying the two-pronged test for Ex Post Facto Clause

violations established by the Supreme Court in Weaver v.

2 Miller v. Florida, 482 U.S. 423, 429 (1987); Weaver v. Graham,

450 U.S. 24, 28 (1981); Dobbert v. Florida, 432 U.S. 282, 292 (1977);

Lindsey v. Washington, 301 U.S. 397, 401 (1937); Rooney v. North

Dakota, 196 U.S. 319, 324-325 (1905); In re Medley, 134 U.S. 160,

171 (1890); Cummings v. Missouri, 71 U.S. 277, 325-326 (1867);

Calder v. Bull, 3 U.S. (Dall.) 386, 390 (1798).

6a

Graham, 450 U.S. 24, 29 (1981),3 we found both that the

Georgia regulation was retroactive and that, by creating

significant delays between parole reconsideration hear-

ings, the application of the regulation “substantially dis-

advantages a prisoner.” Akins, 922 F.2d at 1564.4

California Dep’t of Corrections v. Morales and Lynce v.

Mathis

Four years later, the Supreme Court entertained an ex

post facto challenge to retroactive application of an

amended California Department of Corrections regula-

tion governing parole eligibility. See California Dep't of

Corrections v. Morales, 514 U.S. 499 (1995). At the time that

Morales committed the crime for which he was incarcer-

ated, the California parole consideration regulations

specified that, once an inmate became eligible for an

initial parole consideration hearing, if the inmate was

’ First, the law must be “retrospective, that is, it must apply

to events occurring before its enactment. ...” Weaver, 450 U.S.

at 29. Second, the law must “disadvantage the offender affected

by it.” Id. (quoted in Akins, 922 F.2d at 1563).

4 In Akins, we addressed three preliminary questions as a

predicate to making the ultimate ex post facto determination.

Specifically, we found that: (1) Georgia’s administrative

regulation governing parole reconsideration is a “law” for

purposes of the Ex Post Facto Clause, see Akins, 922 F.2d at 1561;

(2) that a parole reconsideration hearing is part of a prisoner's

parole eligibility, id. at 1561-62; and (3) that, because parole

eligibility is part of an offender's punishment, “for ex post facto

purposes, parole eligibility must be considered part of any

sentence.” Id. at 1563. None of these holdings has been called

into question either by the Supreme Court's decision in Morales,

514 U.S. 499 (1995), or by the parties on appeal.

7a

denied parole at that time, he or she would be eligible for

annual reconsideration. See id. at 503. Subsequent to

Morales’ sentencing, however, the California legislature

amended the regulation to authorize the Board of Prison

Terms “to defer subsequent suitability hearings for up to

three years if the prisoner has been convicted of ‘more

than one offense which involves the taking of a life’ and

if the Board ‘finds that it is not reasonable to expect that

parole would be granted at a hearing during the follow-

ing [two] years and states the bases for the findings.’ ” Id.

(quoting Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)).

In Morales, the Supreme Court rejected an expansive

reading of the Ex Post Facto Clause as forbidding any and

all legislative change having any conceivable risk of

affecting a prisoner’s punishment. See id. at 508. Instead,

the Court found it to be “a matter of ‘degree’” as to

which “legislative adjustments ‘will be held to be of

sufficient moment to transgress the constitutional prohi-

bition [on ex post facto laws].’ ” Id. at 509 (quoting Beazell

v. Ohio, 269 U.S. 167, 171 (1925)). Declining to provide a

universal formula for identifying legislative changes that

violate the ex post facto prohibition, id., the Court

directed that each case be analyzed by asking “whether

[the law at issue] produces a sufficient risk of increasing

the measure of punishment attached to the covered

crimes,” id., and proceeded to apply this standard to the

California statute at issue in Morales.

First, the Court noted that the regulation as amended

applies “only to a class of prisoners for whom the likeli-

hood of release on parole is quite remote”: those pris-

oners “who have been convicted of ‘more than one

8a

offense which involves the taking of a life.’ ” Id. at 510

(quoting Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)).

Second, the Court found that the California amend-

ment was intended only “as a means ‘to relieve the

{[state’s Board of Prison Terms] from the costly and time-

consuming responsibility of scheduling parole hearings

for prisoners who have no chance of being released,’ ” id.

at 511 (quoting In re Lawrence A. Jackson, 39 Cal.3d 464,

473 (1985) (quoting legislative history)) - and not to

increase the punishment of the affected offenders. The

Court found the measure to be “carefully tailored” to the

end of saving time and money, id., and to incorporate

several safeguards to ensure that its application does not

result in extending the sentence of a prisoner who would

be eligible for parole in the intervening two years. See id.

Specifically, the Court noted that “the amendment has no

effect on any prisoner unless the Board has first con-

cluded, after a hearing, not only that the prisoner is

unsuitable for parole, but also that ‘it is not reasonable to

expect that parole would be granted at a hearing during

the following years.’ ” Id. at 511 (quoting § 3041.5(b)(2)).

In this regard, the Court particularly emphasized the

statutory requirement that “the [California Board of

Prison Terms] must conduct ‘a full hearing and review’ of

all relevant facts, and state the bases for its finding.” Id.

(quoting § 3041.5(b)(2)).°

5 The Court added that “[t]hough California law is not

entirely clear on this point, the reliability of the Board’s

determination may also be enhanced by the possibility of an

administrative appeal.” Morales, 514 U.S. at 511 (citing Tit. 15

Cal. Code of Regulations, § 2050 (1994)).

9a

Finally, the Morales Court noted that, under the

amended regulation, the California Board of Prison Terms

retains “the authority to tailor the frequency of subse-

quent suitability hearings to the particular circumstances

of the individual prisoner.” Id.; see also id. (“The default is

an annual hearing but the Board may defer the next

hearing up to two years more depending on the circum-

stances.”) (citing § 3041.5(b)(2)). In particular, the Court

found no reason to fear that a prisoner who would have

been found qualified for release one or two years pre-

vious would suffer a later actual release date than he

would have under the old annual review system. The

Court noted that in California, it is often the case that an

inmate’s actual release date will come several years after

a finding of suitability by the Board. See id. at 513. It

therefore reasoned that, because the Board retained the

discretion to expedite the release date of an inmate who is

able to demonstrate “that he was ‘suitable’ for parole two

years prior to such a finding by the Board,” such an

inmate “might well be entitled to secure a release date

that reflects that fact.” Id.

On the basis of the safeguards in place in the

amended California regulation, the Morales Court con-

iuded that the regulation as amended “creates only the

most speculative and attenuated risk of increasing the

measure of punishment attached to the covered crimes.”

Id. at 514. As the Court put it,

[iJn light of the particularized findings required

under the amendment and the broad discretion

given to the Board, the narrow class of prisoners

covered by the amendment cannot reasonably

expect that their prospects for early release on

10a

parole would be enhanced by the opportunity of

annual hearings. For these prisoners, the

amendment simply allows the Board to avoid

the futility of going through the motions of

reannouncing its denial of parole suitability on a

yearly basis.

Id. at 512. The Court therefore found no ex post facto

violation. See id. at 514.

Subsequently, in Lynce v. Mathis, 519 U.S. 433 (1996),

the Supreme Court found Florida’s attempt to cancel

retroactively the accumulated overcrowding credits

awarded to inmates convicted of murder and attempted

murder to be a violation of the prohibition on ex post

facto laws, and in the course of so doing, provided some

guidance to courts applying the standards established in

Morales. The Lynce Court emphasized in particular two

features of the Court’s reasoning in that case. First, it

underscored that the “bulk of [the Court’s analysis in

Morales} focused on the effect of the law on the inmate’s

sentence” and that the holding in Morales “rested

squarely on the conclusion that ‘a prisoner’s ultimate

date of release would be entirely unaffected by the

change in the timing of suitability hearings.’ ” Lynce, 117

S.Ct. at 897 (quoting Morales, 514 U.S. at 513); see also id.

at 898 n.16 (“Simply put, we rejected the inmate’s claim in

Morales, because it could not be said with any certainty

that the amended statutory scheme was more ‘onerous’

than at the time of the crime.”).

Second, the Lynce Court emphasized the need to

assess the legislature’s purpose behind the change in the

sentencing scheme as well as the possible effect of the

change on offenders’ sentences. In Lynce, the Court

+ rhe

lla

pointed out that Morales never addressed the question as

to whether a legislative purpose to “increas[e] the quan-

tum of punishment” would alone “be a sufficient basis

for concluding that a law violated the Ex Post Facto

Clause when it actually had no such effect.” Id. at 897.

However, the Court underscored that in Morales, where

no ex post facto violation was found, “the change at issue

had neither the purpose nor the effect of increasing the

quantum of punishment.” Id. In Lynce, on the other hand,

the Court saw no evidence that the Florida legislature

effected the change at issue in that case “merely to save

time or money” in those cases in which the ultimate date

of release would remain entirely unaffected. Rather, the

Court found “it [to be] quite obvious that the retrospec-

tive change was intended to prevent the early release of

prisoners convicted of murder-related offenses who had

accumulated overcrowding credits.” Lynce, 117 S.Ct. at

897-98. This finding supported the Court’s conclusion

that the Florida provision violated the prohibition on ex

post facto laws.

The Amended Georgia Regulation

As Morales and Lynce make clear, our inquiry regard-

ing the retroactive application of Georgia’s regulation

governing parole reconsideration, r. 475-3-.05.(2), must

focus on its effect on “‘a prisoner’s ultimate date of

release,’ ” id. at 897 (quoting Morales, 514 U.S. at 513), in

order to determine whether the change constitutes a “suf-

ficient risk of increasing the measure of punishment

attached to the covered crimes.” Id. at 897 n.14 (quoting

Morales, 514 U.S. at 509). To determine whether the retro-

active application of the Georgia regulation gives rise to

12a

such a risk, we examine the regulation in light of the

factors discussed in Morales, and find it to be wholly

distinguishable from the statute at issue in that case.

First, unlike the California statute, it cannot be said

of Georgia’s r. 475-3-.05.(2) that it applies “only to a class

of prisoners for whom the likelihood of release on parole

is quite remote.” Morales, 514 U.S. at 510. The California

statute at issue in Morales applied only to those inmates

“who have been convicted of ‘more than one offense

which involves the taking of a life.” Id. (quoting

Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)). The set

of affected inmates is thus likely to be extremely small.

The Georgia provision, in contrast, applies to all “those -

inmates serving life sentences,” r. 475-3-.05.(2). In Geor-

gia, it turns out, this group can include prisoners con-

victed of murder, see Ga. Cope ANN. § 16-5-1; felony

murder, see id.; rape, see Ga. Cope ANN. § 16-6-1; armed

robbery, see Ga. Cope ANN. § 16-8-41; kidnapping for

ransom, see Ga. Cove Ann. § 16-5-40; hijacking an aircraft,

see Ga. Cove ANN. § 16-5-44; more than one count of child

molestation, see Ga. Cope ANN. § 16-6-4; perjury that was

the cause of someone else being sentenced to death, see

Ga. Cope Ann. § 16-10-70; more than one count of posses-

sion or use of a machine gun, sawed-off rifle, sawed-off

shotgun, or a firearm equipped with a silencer during the

commission or attempted commission of a series of enu-

merated offenses,® see Ga. Cope ANN. § 16-11-160; and

© This list includes:

(1) Aggravated assault as defined in Code Section 16-5-21;

(2) Aggravated battery as defined in Code Section 16-5-24;

i ne

13a

more than one count of a series of prohibitions on the

manufacture, possession, sale, or distribution of certain

controlled substances, see Ga. Cope ANN. § 16-13-30. The

set of inmates whose parole consideration will be affected

by r. 475-3-.05.(2) is thus bound to be far more sizeable

than the set of inmates affected by the California provi-

sion at issue in Morales. This set must also — unless we are

to believe that the state of Georgia imposes a sentence of

life in prison without parole for the entire set of offenses

just enumerated - be comprised of many inmates who

can expect at some point to be paroled. For this reason,

we are unable to conclude that r. 475-3-.05.(2) will apply

(3) Robbery as defined in Code Section 16-8-40;

(4) Armed robbery as defined in Code Section 16-8-41;

(5) Murder or felony murder as defined in Code Section

16-5-1;

(6) Voluntary manslaughter as defined in Code Section

16-5-2;

(7) Involuntary manslaughter as defined in Code Section

16-5-3;

(8) Sale, possession for sale, transportation, manufacture,

offer for sale, or offer to manufacture controlled substances in

violation of any provision of Article 2 of Chapter 13 of [Title 16],

the “Georgia Controlled Substances Act”;

(9) Terroristic threats or acts as defined in Code Section

16-11-37;

(10) Arson as defined in Code Sections 16-7-60, 16-7-61,

and 16-7-62;

(11) Influencing witnesses as defined in Code Section

16-10-93; and

(12) Participation in criminal gang activity as defined in

Code Section 16-15-4.

Ga. Cove Ann. §16-11-160.

l4a

“only to a class of prisoners for whom the likelihood of

release on parole is quite remote.”

Second, unlike the California statute, the Georgia

regulation cannot be said to be “carefully tailored” so as

to support a finding that the measure was intended only

to further the legitimate end of saving time and money

and not to “increas[e] the quantum of punishment.”

Lynce, 117 S.Ct. at 897. The Morales Court emphasized

that safeguards built into the California provision would

ensure that retroactive application would not extend the

sentences of those prisoners who would be otherwise

eligible for parole in the years between hearings. In par-

ticular, the Court noted the statutory requirement that

“the [California Board of Prison Terms] must conduct ‘a

full hearing and review’ of all relevant facts, and state the

bases for its finding” that “ ‘it is not reasonable to expect

that parole would be granted at a hearing during the

following [two] years.’ ” Morales, 514 U.S. at 511 (quoting

Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)).

The same cannot be said for the Georgia regulation. It

reads, in its entirety,

Reconsideration of those inmates serving life

sentences who have been denied parole shall

take place at least every eight years. The Board

will inform inmates denied parole of the reasons

for such denial without disclosing confidential

sources of information or possible discouraging

diagnostic opinions.

Ga. Comp. R. & Regs. r. 475-3-.05.(2). The Board is not

required to make any particularized findings supporting

its conclusion that, as to the inmate under consideration,

“it is not reasonable to expect that parole would be

ee ~

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15a

granted” during the intervening eight years before the

next hearing — indeed, as the facts of this case indicate,

the Board would be within its discretion to say next to

nothing.” Nor is the Board required to have any sort of

hearing on this question, much less the “full hearing”

required by the California statute approved by the

Supreme Court in Morales.

Unlike the California provision at issue in Morales,

which established an annual hearing as a default but

conferred on the Board of Prison Terms the authority to

“defer the next hearing up to two years more depending

on the circumstances,” the Georgia regulation simply sets

the default for affected inmates at reconsideration “at

least every eight years.” Eight years is a long time. Much

can happen in the course of eight years to affect the

determination that an inmate would be suitable for

parole. The Morales Court emphasized that, because an

? The letter Jones received from the Board in 1995

illustrates the minimal burden the regulation places on the

Board to justify its scheduling decisions. In its entirety, this

letter reads:

Dear Mr. Jones,

You have been thoroughly and carefully

considered for parole. The Board’s decision is to deny

parole at this time. The main reasons for the decision

cited by the Board members during their individual

study of your case are circumstances and nature of

the offense, and multiple offenses.

The Board has decided to consider you again for

parole during August 2003.

Sincerely,

[signature].

R.1-18-Ex.3

l6a

inmate’s “parole release date [often] comes at least sev-

eral years after a finding of suitability,” and because the

Board “retains the discretion to expedite the release date

of such a prisoner,” a prisoner affected by the amended

California statute who can demonstrate “that he was

‘suitable’ for parole two years prior to such a finding by

the Board might well be entitled to secure a[n earlier]

release date that reflects that fact.” Morales, 514 U.S. at

513. The eight-year period specified in r. 475-3-.05.(2),

however, is simply too long to allow us to say that an

inmate who would have been able to demonstrate suit-

ability for parole in the years between reconsideration

hearings would be able to “cure” this delay through

petitioning for an earlier release date. There is therefore a

“sufficient risk” that the amended Georgia regulation

would “increas[e] the measure of punishment attached to

the covered crimes.” Id. at 509.

We are not persuaded by the Board’s argument that

the policy statement it issued in October 1996 cures the

constitutional defects of r. 475-3-.05.(2) identified here.

See State Board of Pardons and Paroles Policy Statement

No. 4.110. The relevant language of the policy statement

provides that

Policy: It is the policy of the Board that all Life

Sentence Cases denied parole may be set for

reconsideration up to a maximum of eight years

from the date of the last denial when, in the

Board’s determination, it is not reasonable to

expect that parole would be granted during the

intervening years. Inmates set-off under this

policy may receive expedited parole reviews in

the event of a change in their circumstance or

17a

where the Board receives new information that

would warrant a sooner review.

Procedures: At the time the Members vote to

deny parole in a Life Sentence Case, the Mem-

bers will indicate the number of years the

inmate must serve prior to being next consid-

ered.

See id. §§ 1.105-06.

This policy does not sufficiently mitigate the defects

in the regulation itself to defeat an ex post facto chal-

lenge. Policy statements, unlike regulations, are unenfor-

ceable and easily changed, and adherence to them is a

matter of the Board’s discretion. These are qualities that

caution against treating their contents as if they had the

authority of officially promulgated statutes or regula-

tions. Moreover, even notwithstanding these limitations,

this particular policy statement still does not require the

Board to make particularized findings or even to provide

clear reasons for its decision regarding the scheduling of

subsequent hearings. And it also, of course, continues to

allow an interval of eight years between hearings without

any requirement that the Board consider an inmate’s case

during that time. Given the large class of affected

inmates, this eight-year interval seems certain to ensure

that some number of inmates will find the length of their

incarceration extended in violation of the Ex Post Facto

Clause of the Constitution.

The Board also argues that we should follow the

Fourth Circuit, which in the wake of Morales upheld

against ex post facto challenges the retroactive applica-

tion of both South Carolina’s and Virginia's amended

parole reconsideration statutes. See Roller v. Gunn, 107

18a

F.3d 227 (4th Cir. 1997) (South Carolina); Hill v. Jackson, 64

F.3d 163, 169-70 (4th Cir. 1995) (Virginia). We do not find

in these cases, however, any discussion or analysis of the

absence in the statutes at issue of the procedural safe-

guards deemed essential in Morales to protect inmates

against an increase in the “quantum of punishment”

attached to their crimes. See Roller, 107 F.3d at 238-40

(dissent of Judge Hall). Moreover, the South Carolina

statute as amended provides that affected inmates “only

have [their] case[s] reviewed every two years after an

initial negative parole determination rather than every

year,” Roller, 107 F.3d at 229 (citing S.C. Cope ANn.

§ 24-21-645 (Law. Co-op. 1997)), while the Virginia

amendments authorize the extension of the period

between parole reconsiderations from one year to three

years. Hill, 64 F.3d at 166 (citing Va. Cope Ann. § 53.1-154

(Michie 1988)). The respective time-frames created for the

subsequent parole reconsideration of inmates by the

South Carolina and Virginia statutes are thus considera-

bly shorter than the lengthy eight-year gap between

parole reconsiderations authorized by the Georgia provi-

sion, thus creating less of a risk than the Georgia statute

that “the measure of punishment” imposed on affected

inmates will be “increased.” Morales, 514 U.S. at 513.

Whether a particular provision violates the prohibi-

tion on ex post facto laws is a “matter of ‘degree.’ ”

Morales, 514 U.S. at 509 (quoting Beazell, 269 U.S. at 171).

Given the length of time that the Georgia provision

requires inmates to wait between parole consideration

hearings and the absence of safeguards such as a “full

hearing and review of all the relevant facts” and an

obligation on the part of the Board to state particularized

D> mn Ole = A Le ON AA Btn

:

i

{

19a

facts relating to the inmate’s likely future parole eligi-

bility, we cannot conclude - as we must, to find no ex

post facto violation - that the amended regulation “ha[s]

neither the purpose nor the effect of increasing the quan-

tum of punishment.” Lynce, 117 S.Ct. at 897.

For the foregoing reasons, we conclude that Akins has

not been overruled. Indeed, we find that the Supreme

Court’s reasoning in Morales and Lynce reaffirms the cor-

rectness of our holding in that case. Thus, pursuant to

Morales, Lynce, and Akins, we REVERSE the district

court’s grant of the defendant’s motion for summary

judgment on the plaintiff's ex post facto claim, and

REMAND the case to the district court for proceedings

consistent herewith.

20a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ROBERT L. JONES,

Plaintiff,

-V- 1:95-CV-3012-CAM

J. WAYNE GARNER,

Chairman, Georgia State

Board of Pardons and

Paroles,

Defendant.

ORDER

(Filed Aug. 25, 1997)

Plaintiff Robert L. Jones, acting pro se, filed this case

pursuant to 42 U.S.C. § 1983, alleging various violations

of his constitutional rights. Following this Court's dis-

missal of the case as frivolous, Jones appealed. The

United States Court of Appeals for the Eleventh Circuit

affirmed dismissal as to Jones’ due process, equal protec-

tion, and retaliation claims, but reversed as to his ex post

facto claim, finding that the claim was “not necessarily

frivolous” due to the holding in California Dep't of Correc-

tions v. Morales, 514 U.S. 499 (1995). The case was

reopened, and all parties were served. The case is before

the Court on Defendants’ motion for summary judgment,

Jones’ motion for summary judgment, Defendants’

motion to compel answers to mandatory interrogatories,

and Jones’ motions for production of documents and

appointment of counsel. For the reasons stated herein,

f

:

}

2la

Defendants’ motion for summary judgment is granted,

and all other motions are denied.

BACKGROUND

The facts in this case are not in dispute. In July 1974

Jones was sentenced to life in prison following conviction

in the Superior Court of Fulton County on a murder

charge. He escaped in November 1979. In August 1982, he

was again sentenced to life in prison following conviction

in the Superior Court of Fulton County on a second

murder charge.

The rules and regulations which were in effect at the

time of Jones’ second offense required that he be initially

considered for parole after seven years and that he be

reconsidered every three years. Prior to the time he was

initially considered for parole, the rules were amended to

require reconsideration “at least every eight years.”

Jones was initially considered for parole in 1989,

seven years after his conviction. The Board of Pardons

and Paroles (Board) denied parole because of Jones’ mul-

tiple offenses, and he was scheduled for reconsideration

in 1997 (eight years). Because of the intervening decision

in Akins v. Snow, 922 F.2d 1558 (11th Cir.), cert. denied, 501

U.S. 1260 (1991), Jones was actually reconsidered for

parole in 1992 (three years). He was again denied parole,

both because of his multiple offenses and because of the

“circumstances and nature of the offense,” and was

scheduled for reconsideration in 1995. He was recon-

sidered in 1995 and, for a third time, denied parole, again

because of his multiple offenses and because of the “cir-

cumstances and nature of the offense.” Because of the

22a

intervening decision in Morales, the amended regulation

was applied, and Jones was scheduled for reconsideration

in 2003 (eight years).

Jones contends that applying the amended regulation

to him so that he will not be reconsidered for parole for

eight years violates his rights under the ex post facto

clause of the United States Constitution.

LEGAL STANDARDS AND ANALYSIS

Summary judgment is appropriate if there are no

genuine issues of material fact and the movant is entitled

to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

The parties agree that there are no genuine issues of

material fact, and both parties have moved for summary

judgment. At issue is whether the Supreme Court deci-

sion in Morales overruled the decision of the Court of

Appeals in Akins. Jones relies upon Akins in support of

his position that reducing the frequency of his parole

reconsideration hearings violates his rights under the ex

post facto clause. Defendants rely upon Morales in support

of their position that increasing the number of years

permitted between parole reconsideration hearings for

inmates serving life sentences does not violate the ex post

facto clause. Although one panel of the Court of Appeals

suggested that “[i]n light of Morales, the continuing val-

idity of Akins is questionable,” Jones v. Georgia State Bd. of

Pardons and Paroles, 59 F.3d 1145, 1149 n. 8 (11th Cir.

1995), the Court of Appeals, in reversing this Court's

dismissal of the case as frivolous, indicated that Morales

does “not necessarily” overrule Akins.

a

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ie ee oe

Pate GOR

23a

In Akins, the Court of Appeals held that reducing the

frequency of parole reconsideration hearings could “as a

matter of law violate the ex post facto clause.” Akins, 922

F.2d at 1565. The Court of Appeals further held that the

actions of the Board in retroactively applying the changes

and denying annual reconsideration hearings to the

plaintiffs did violate their rights under the ex post facto

clause. Id. Before reaching its decision, the Court of

Appeals determined that: (1) the rules and regulations

promulgated by the Board pursuant to authority dele-

gated by the Georgia legislature “to enact rules and regu-

lations concerning parole reconsideration” were “laws”

within the meaning of the ex post facto clause, id. at 1561

(citing O.C.G.A. § 42-9-45 (1989)); (2) parole reconsidera-

tion hearings were a part of parole eligibility because “an

inmate is effectively ineligible for parole between two

parole reconsideration hearings,” id. at 1562 (emphasis in

original); and (3) the ex post facto clause’s restrictions

applied to a change in parole eligibility because parole

eligibility is part of the sentence imposed as punishment

for a crime, id. at 1563. The Court of Appeals then applied

the two-prong analysis developed by the Supreme Court,

id. (citing Weaver v. Graham, 450 U.S. 24 (1981)), determin-

ing (1) that the Board’s actions were “retrospective”

because “the Board effectively altered the consequences

of [the plaintiffs’] crimes after they were completed,” id.

at 1563-64, and (2) that the amendments “disadvantage[d]

the [plaintiffs]” because the change, by increasing the

time between two reconsideration hearings, “increased

the time an inmate must spend in prison before he can

again become eligible for parole,” id. at 1564. In Morales,

the Supreme Court held that California did not violate

24a

the ex post facto clause b>’ applying an amendment which

decreased the frequency of parole suitability hearings to

prisoners who committed their crimes before the amend-

ment was enacted. Morales, 514 U.S. 499, 501-02 (1995).

The Court, however, specifically “express[ed] no view as

to the constitutionality of any of a number of other stat-

utes that might alter the timing of parole hearings under

circumstances different from those present here.” Id. at

509 n.5.

California changed its parole procedures from requir-

ing annual parole reconsideration hearings to permitting

the Board of Prison Terms to defer hearings for up to

three years “if the prisoner has been convicted of ‘more

than one offense which involves the taking of a life’ and

if the Board ‘finds that it is not reasonable to expect that

parole would be granted at a hearing during the follow-

ing years and states the bases for the finding.’ ” Id. at 503.

As had the Eleventh Circuit in Akins, the Ninth Circuit

held that reducing the frequency of reconsideration hear-

ings violated the ex post facto clause because having

parole hearings less often effectively increased the pris-

oner’s sentence since the prisoner could not be paroled

without first having a hearing. Id. at 504. The Supreme

Court found that the amendment at issue did not change

the prisoner’s sentencing range, did not change “the sub-

stantive formula for securing any reductions to this sen-

tencing range,” and did not change “the standards for

fixing a prisoner’s initial date of eligibility for parole or

for determining his suitability for parole and setting his

release date.” Id. at 507 (citations omitted). The amend-

ment at issue made only one change: “It introduced the

possibility that after the initial parole hearing, the Board

25a

would not have to hold another hearing the very next

year, or the year after that, if it found no reasonable

probability that [the prisoner] would be deemed suitable

for parole in the interim period.” Id. The change merely

relieved the Board of the necessity of holding parole

hearings for prisoners who had no reasonable chance of

being released. Id.

The Court emphasized that determining whether a

change implicates the ex post facto clause is a matter of

degree — “whether [the change] produces a sufficient risk

of increasing the measure of punishment attached to the

covered crimes.” Id. at 509. The Court found that the

California amendment created “only the most speculative

and attenuated possibility of producing the prohibited

effect of increasing the measure of punishment.” Id.

Although the Court declined to establish a formula for

determining when a change implicates the ex post facto

clause, it found the following factors significant in reach-

ing the Morales decision: (1) “the amendment applie[d]

only to a class of prisoners for whom the likelihood of

release on parole [was] quite remote,” id. at 510; (2) “[t]he

amendment [had] no effect on the date of any prisoner's

initial parole suitability hearing [as] it affect[ed] the tim-

ing only of subsequent hearings,” id. at 511 (emphasis in

original); (3) “the Board retain[ed] the authority to tailor

the frequency of subsequent suitability hearings to the

particular circumstances of the individual prisoner,” id.;

(4) the possibility existed for an expedited hearing where

a change in circumstances altered the prisoner’s suit-

ability for parole, id. at 512-13; and (5) “the practical

effect of a hearing postponement [was] not significant”

26a

since the actual release date was frequently several years

after a finding of suitability for parole, id. at 513.

The Morales decision supports the preliminary hold-

ing in Akins that the rules and regulations concerning

parole reconsideration are “laws” within the meaning of

the ex post facto clause, that parole reconsideration hear-

ings are a part of parole eligibility, and that the ex post

facto clause’s restrictions apply to a change in parole

eligibility. As was the case in Akins, applying the

amended regulation so that Jones will be reconsidered for

parole only after eight years is a retrospective applica-

tion. This Court must determine whether, in light of

Morales, the amendments disadvantage Jones by increas-

ing the time between hearings.

The Georgia Administrative Code currently requires

that “inmates serving life sentences who have been

denied parole” be given reconsideration hearings “at

least every eight years.” Ga. Comp. R. & Regs.

475-3-.05(2). The Board’s policy statement specifies that

all Life Sentence Cases denied parole may be set

for reconsideration up to a maximum of eight

years from the date of last denial when, in the

Board’s determination, it is not reasonable to

expect that parole would be granted during the

intervening years. Inmates set-off under this

policy may receive expedited parole reviews in

the event of a change in their circumstance or

where the Board receives new information that

would warrant a sooner review.

State Board of Pardons and Paroles Policy Statement No.

4.110.

EE Som ED ft Mle a.

ee ae

(26

27a

Here, as in Morales, the amendment of which Jones

complains changes only the timing between reconsidera-

tion hearings, relieving the Board of the necessity of

holding parole hearings for prisoners who have no rea-

sonable chance of being released. It does not change any

prisoner’s sentencing range, the substantive formula for

evaluating a prisoner for release, or the standards for

setting a prisoner’s initial date of eligibility for parole.

The change applies only to prisoners serving life sen-

tences who have been denied parole at least once, “a class

of prisoners for whom the likelihood of release on parole

is quite remote,” Morales, 514 U.S. at 510; it affects only

the timing of reconsideration hearings; the Board retains

the authority to set subsequent hearings at a time suitable

to the “particular circumstances of the individual pris-

oner,” id. at 511; the Board’s policies specifically provide

for an expedited reconsideration hearing if a prisoner’s

circumstances change or if the Board receives new infor-

mation that might affect a prisoner's chance of parole.

The Court finds that, as in Morales, the change to

which Jones objects creates “only the most speculative

and attenuated possibility of producing the prohibited

effect of increasing the measure of punishment.” Id. at

509. It does not disadvantage Jones and therefore does

not violate his rights under the ex post facto clause.

CONCLUSION

The Court GRANTS Defendants’ motion for sum-

mary judgment, DENIES Jones’ motion for summary

judgment, and DENIES all other outstanding motions as

moot.

28a

Clerk of Court is directed to enter judgment in favor

of Defendants. This closes the case.

SO ORDERED, this 25 day of August, 1997.

/s/ Charles A. Moye, Jr.

UNITED STATES

DISTRICT JUDGE

CHARLES A. MOYE, JR.

CAM:]

gt Co.

29a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CIVIL ACTION FILE

NO. 1:95-cv-3012-CAM

ROBERT L. JONES,

Plaintiff,

vs. :

J]. WAYNE GARNER, et al., °

Defendant.

JUDGMENT

This action having come before the court, Honorable

Charles A. Moye, Jr., United States District Judge, for

consideration of defendants’ motion for summary judg-

ment, and the court having granted said motion, it is

Ordered and Adjudged that the plaintiff take noth-

ing; that the defendant recover its costs of this action, and

the action be, and the same hereby, is dismissed.

Dated at Atlanta, Georgia, this 25th day of August,

1997.

LUTHER D. THOMAS

CLERK OF COURT

By: /s/ joyce White

puty Clerk

Prepared, Filed, and Entered

in the Clerk’s Office

August 26, 1997

Luther D. Thomas

Clerk of Court

By: /s/ joyce White

puty Clerk

30a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-9009

ROBERT L. JONES,

Plaintiff-Appellant,

versus

J. WAYNE GARNER, Employed as Chairman,

State Board of Pardons and Paroles, et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the

Northern District of Georgia

(Filed Apr. 19, 1999)

ON PETITION(S) FOR REHEARING AND SUGGES-

TION(S) OF REHEARING EN BANC (Opinion ,

llth Cir, 19__, __ F.2d __).

Before: BIRCH and BARKETT, Circuit Judges, and

HANCOCK’, Senior District Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

* Honorable James H. Hancock, Senior U.S. District Judge for

the Northern District of Alabama, sitting by designation.

3la

on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s)

of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Rosemary Barkett

UNITED STATES CIRCUIT JUDGE