# Petition for Writ of Certiorari — Garner v. Jones

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 244

## Text

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 ~

|
|
|

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

:
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{

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

ee ee ee ee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0323%3A2. Public record. Not legal advice.