Opposition Brief — Armontrout v. Parton

S goSEPH F. SPANIOL, JR.

CLERK

|

No. 90-153

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

BILL ARMONTROUT, Warden, Missouri State Penitentiary,

Petitioner,

VS.

EDWARD PARTON,

Respondent.

BRIEF IN OPPOSITION TO :

PETITION FOR WRIT OF CERTIORARI

David L. Coffman

611 Olive Street, Suite 1400

St. Louis, Missouri 63101

(314) 444-7600

Attorneys for Petitioner

TABLE OF CONTENTS

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Relevant Constitutional and Statutory Provisions .....eeeeeees eweean <euve

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Argument

A. The United States Court of Appeals for the Eighth

Circuit fully considered and correctly decided the

issue raised in the Petition for Writ of Certiorari .......cceeeeees

B. Petitioner has Failed to Demonstrate a Conflict

Between the Decision of the Court of Appeals

and the Missouri Supreme Court...... iveesdaaneen (heekeneengee

C. The Issue Raised by Petitioner Does Not Present

a Question of Sufficient Importance to Warrant

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Appendix

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TABLE OF AUTHORITIES

CASES

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Burnside v. White, 760 F.2d 217 (8th Cir. 1985), cert. denied,

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

Lerner v. Gill, 751 F.2d 450 (Ist Cir. 1985), cert. denied,

472 U.S. 1010 (1985)..... PESEEL ERA ERED EASE ROERA DEON ES EOLA OOO AO

Parker v. Corrothers, 750 F.2d 653 (Sth Cir. 1984) ....ccccccccccccccccccces

Parton v. State of Missouri, 545 S.W.2d 338 (Mo.App. 1976) .....cceceeeeeees

Rodriguez v. United States Parole Commission, 594 F.2d 170

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State of Missouri v. Parton, 487 S.W.2d 523 (Mo. 1972) ...cccccccccccccccces

Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d

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Williams v. Missouri Board of Probation and Parole, 661 F.2d

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Yamamoto v. U.S. Parole Commission, 794 F.2d 1295 (8th

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Constitutional Provisions, Statutes and Rules

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Section 549.261, R.S.Mo. (1969) (repealed 1982) ...ccccccccccscccccssoncace

Section 589.010 to 589.040 R.S.Mo. (1986) ........008. be neerewewedeneesees

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No. 90-153

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

BILL ARMONTROUT, Warden, Missouri State Penitentiary,

Petitioner,

VS.

EDWARD PARTON,

Respondent.

* BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

Respondent incorporates the constitutional and statutory provisions set forth in the

Petition for Certiorari, and adds thereto the following:

l. Section 549.261.1 R.S.Mo. (1969) (repealed 1982), provided as follows:

When in its opinion there is a reasonable probability that the prisoner

can be released without detriment to the community or to himself, the board

shall release or parole any person confined in any correctional institution

administered by state authorities. All paroles shall issue upon order of the

board, duly adopted.

STATEMENT OF THE CASE

Respondent Edward Parton has been incarcerated with the Missouri Department of

Corrections since 1971, following his conviction for statutory rape. That conviction and

sentenced were affirmed on direct appeal. State of Missouri v. Parton, 487 S.W.2d 523

(Mo. 1972). In addition, Respondent sought post-conviction relief as well as coram nobis,

all of which were denied. Parton v. State of Missouri, 545 S.W.2d 338 (Mo.App. 1976).

On September 23, 1985, Respondent filed the Petition for a Writ of Habeas Corpus, which

is the subject of this action, in the United States District Court for the Eastern District

of Missouri. The Petition was not a collateral attack on Respondent's 1971 conviction.

Rather, the Petition challenged the extension and subsequent cancellation of

Respondent's scheduled release on parole.

A number of events led to the filing of this Petition. The Missouri Board of

Probation and Parole Scheduled Petitioner to be released on parole on August 23, 1984.

On May |, 1984, Respondent was notified that his release date of August 23, 1984 was

being extended until January 11, 1985, as a result of his failure to complete Phase II of

the Missouri Sexual Offender Program ("MOSOP"). On November 7, 1984, Respondent

was notified that his release date of January 11, 1985 was being cancelled solely because

of his failure to complete Phase II of MOSOP. Respondent was never given a hearing,

either prior to or after the extension and subsequent canceiiation of his parole.

Respondent remains incarcerated at the presegt time.

The parole statute in effect at the time of the commission of the crime for which

Respondent was convicted was Section 549.261 R.S.Mo. (1969) (repealed 1982). That

section was repealed in 1982, and was replaced by the current parole statute, Section

217.690 R.S.Mo. (1986). In 1980, the Missouri Legislature enacted the Sexual Assault

Prevention Act, which was codified in Sections 589.010 to 589.040 R.S.Mo. (1986).

Section 589.040.1 of that Act requires the Director of the Department of Corrections

and Human Resources to develop a program of treatment, education and rehabilitation

for sexual offenders. The MOSOP was developed pursuant to that section. In addition,

Section 589.040.2 requires that all sexual offenders participate in the programs

developed under the Act.

Subsequent to the enactment of the Sexual Assault Prevention Act, and the

development of the MOSOP, the Missouri Department of Corrections and Human

Resources promulgated and adopted a regulation which requires that all sexual offenders

participate in and complete the prescribed treatment program prior to being eligibie for

parole. 14 C.S.R. 80-2.010(4XD). There is no dispute that the MOSOP completion

requirement as a condition of parole eligibility was applied retroactively to Respondent

in this case.

Respondent's Petition challenged the extension and cancellation of his parole

without due process, and also challenged the retroactive application to him of tne

MOSOP completion requirement as a requirement for parole eligibility.

States District Court for the Eastern District of Missour! adopted the Report anc

Recommendation of United States Magistrate Carol Jackson, which found tnat

Respondent's parole was improperly extended and cancelled without due process. In

addition, the District Court adopted the Magistrate's finding that the retroactive

violated the Ex Post Facto Clause. This holding was affirmed by the United States Court

of Appeals for the Eighth Circuit. Petitioner now seeks discretionary review of tne

decision of the Eighth Circuit Court of Appeals by a writ of certiorari.

ARGUMENT

PETITIONER HAS FAILED TO PRESENT SUFFICIENT GROUNDS FOR THE

EXERCISE OF THIS COURT'S DISCRETIONARY REVIEW ON WRIT OF CERTIORARI.

United States Supreme Court review on writ of certiorari is a matter of judicial!

discretion and not a matter of right. Supreme Court Rule |7 provides that certiorari will

be granted “only when there are special and important reasons therefor." Certiorar:

should be denied in this case because the court below fully considered and correctly

decided the issue presented; there is no conflict between the decision of the court below

and the Missouri Supreme Court; and the issue is not important enough to warrant review

on certiorari.

A. The United States Court of Appeals for the Eighth Circuit fully considered

and correctly decided the issue raised in the Petition for Writ of Certiorari .

The United States Court of Appeals for the Eighth Circuit affirmed the decision of

the United States District Court for the Eastern District of Missouri, which had adopted

the Report and Recommendation of U.S. Magistrate Carol Jackson. A brief examination

of the particular facts of this case, and the applicable law reveals that the issue raised

by Petitioner was fully considered and correctly decided below.

Respondent was convicted of statutory rape in 1971. A prisoner must be considered

for parole under the statute and guidelines in effect at the time of the commission of the

crime. Parker v. Corrothers, 750 F.2d 653, 661 (8th Cir. 1984). The Missouri parole

Statute in effect at the time of Respondent's conviction, Mo.Rev.Stat. §549.261 (1969)

(repealed 1982), provided, in part, as follows:

When in its opinion there is a reasonable probability that the prisoner can be

released without detriment to the community or to himself, the board shail

release or parole any person confined in any correctional institution

administered by state authorities. ..

§549.261.1 (1969) (emphasis added). The Eighth Circuit Court of Appeals has held that

§549.261 created a liberty interest in parole, because it created a justifiable expectation

of release under certain circumstances. Williams v. Missouri Board of Probation and

Parole, 661 F.2d 697, 699 (Sth Cir. 1981) cert. denied, 455 U.S. 993 (1982); Burnside v.

White, 760 F.2d 217, 220 (8th Cir. 1985) cert. denied, 474 U.S. 1022 ( 1985).!

Applying this holding to the present case, the Magistrate stated as follows:

Under §549.261 once the Board determined that statutory and regulatory

guidelines had been met, release was mandatory and this gave rise to a

protected entitlement.

(Petition, p. A-14).? As the Magistrate correctiy noted, the Parole Board evidently

determined that by August 23, 1984, Respondent could be released on parole without

detriment to himself or to the community. Under the applicable parole statute,

§549.261, Respondent acquired a justifiable expectation of release which could not Se

taken absent due process. Nevertheless, Petitioner's August 23, 1984 release date was

extended to January 11, 1985, and subsequently cancelled without a Tearing. The

Magistrate correctly found this to be impermissible, and the Court of Appeais aft.rmec.

The Court of Appeals was also correct in affirming the Magistrate's finding that

the retroactive application of «the MOSOP completion requirement as a Condit.on tor

parole eligibility violated the ex post facto clause. The issue of whether 2 retroact.ve

application of a parole eligibility requirement is permissible Nas Deen accressec anc

resolved by numerous federal courts. As Petitioner notes, tfis Court 24s orev ous

’

Lon page seven (7) of the Petition for Certiorari herein, Petitioner states that ome

grant of parole is discretionary with the Missour: Board of ProdDation and Parole. Bove

this statement is undoubtedly true under the current Missouri parole statute. 921 7.0%

R.S.Mo. (1986), it is also clear that the current statute is not applicadie to Respondent

that it was not in effect at the time of his conviction. Parker, 750 F.2d at oe).

2Reterences to "Petition" are to the Petition for Certiorar: tiled Merein.

indicated that a retroactive application of a parole eligibility requirement would violate

the ex post facto clause. Warden v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532. 2538, 41

L.Ed.2d 383 (1974). Also, Petitioner correctly points out that the federal courts of

appeal have uniformly followed this rule. Fender v. Thompson, 883 F.2d 303, 305-306

(4th Cir. 1989); Burnside v. White, 760 F.2d 217, 220 (8th Cir. 1985), cert. denied, 474

U.S. 1022 (1985); Lerner v. Gill, 751 F.2d 450, 454 (Ist Cir. 1985)cert. denied, 472 U.S.

1010 (1985); Beebe v. Phelps, 650 F.2d 774, 777 (5th Cir. 1981); Rodriguez v. United

States Parole Commission, 594 F.2d 170, 176 (7th Cir. 1979). This issue is particularly

well-settled, both in the federal courts of appeal and in this Court. The Court of Appeals

fully considered this issue, followed applicable precedents, and correctly affirmed the

lower court's decision. Thus, there is no need for discretionary review by this Court.

Petitioner also argues that the MOSOP completion requirement is not a retroactive

"legislative act” because it was promulgated by the Missouri Board of Probation and

Parole. This issue was also fully considered and correctly decided by the court below.

As the Magistrate correctly noted in her Report, where a legislature delegates to an

agency the authority to make rules, the r¢sulting rules are an extension of the legislative

action for ex post facto purposes. Rodriguez v. U.S. Parole Commission, 594 F.2d 170

(7th Cir, 1979). See also Yamamoto v. U.S. Parole Commission, 794 F.2d 1295, 1300 (8th

Cir. 1986). Thus, the MOSOP completion requirement was properly considered a

retroactive legislative act by the court below.

Finally, Petitioner's contention that an increased parole eligibility requirement is

not greater punishment is without merit. Cases which have considered this issue have

consistently held that elimination or restriction of parole eligibility is punitive. Warden

v. Marrero, 417 U.S. at 662-63; see also, Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct.

2593, 33 L.Ed.2d 484, 495 (1972); Durant v. U.S., 410 F.2d 685, 691 (Sth Cir. 1969). The

Court of Appeals correctly followed these decisions.

-6-

B. Petitioner has Failed to Demonstrate a Conflict Between the Decision of the

Court of Appeals and the Missour: Supreme Court.

Petitioner asserts that a conflict exists between the decision of the United States

Court of Appeals for the Eighth Circuit and the Missouri Supreme Court concerning

whether the MOSOP completion requirement can be applied retroactively as a condition

of parole eligibility. Specifically, Petitioner asserts that the decision of the Court of

Appeals in this case conflicts with the decision of the Missouri Supreme Court in State ex

rel. Danny Baylis Houston v. Jimmy Jones, No. 72739 Mo. banc (June 19, 1990).' The

decision of the Missouri Supreme Court in that case is set forth in its entirety in the

Appendix hereto. (See Appendix 1).

An examination of this summary order reveals that the Missouri Supreme Court did

not in any way address the issue of the retroactive application of the MOSOP completion

requirement. Petitioner has presented none of the facts of that case, nor has he provided

any explanation of the issues which were present. Petitioner has also failed to exclude

alternative grounds for this decision. In sum, there is simply no basis to conclude that

the Missouri Supreme Court has made any ruling which conflicts with the decision of the

Court of Appeals in this case.

C. The Issue Raised by Petitioner Does Not Present a Question of Sufficient

Importance to Warrant Review on Certiorart.

' Because of the narrow holding of the court below, the issue raised Dy Petitioner

lacks importance sufficient to warrant discretionary review. The holding below is

specifically limited to those prisoners who committed a sexual offense prior to the

promulgation of the MOSOP completion requirement, and prior to the enactment of the

current parole statute, and ;"° have met the statutory and regulatory guidelines ‘or

parole under the prior parole statute, and nave been denied parole elig:Dility due to teir

failure to complete the MOSOP.

As the Magistrate correctly noted in her Report, the State of Missouri can require

all sexual offenders, regardless of when their crime was committed, to participate in the

MOSOP. In addition, all sexual offenders who committed their crimes subsequent to the

promulgation of the completion requirement can be required to complete the program

prior to parole eligibility. Finally, those sexual offenders to whom the prior parole

Statute is applicable are not eligible for release until the Parole Board finds that they

can be released without detriment to theirself or the community. Unless that

determination has previously been made, as it was in this case, the Parole Board could

consider a sexual offender's participation in the MOSCP in determining whether he has

met the statutory conditions for release.

Because these factors all serve to limit the applicability of the decision below, the

issue presented is not one of general importance to the public as opposed to the

particular parties involved. Accordingly, the issue is not worthy of discretionary review

on certiorari.

CONCLUSION

For the reasons set forth above, Respondent respectfully requests that this Court

deny the Petition for Writ of Certiorari.

Respectfully submitted,

a _Lbeidl L boas

David L. hd.

611 Olive Street, Suite 1400

St. Louis, Missouri 63101

(314) 444-7600

Attorney for Respondent Edward Parton

APPENDIX 1

In The Supreme Court of Missouri

No. 72739

May Session, 1990

State ex rel. Danny Baylis Houston, Petitioner,

vs. HABEAS CORPUS

James Parkett, Supt., F.C.C.,

et al., Respondent.

Now at this day, on consideration of the petition for writ

of habeas corpus herein to the said respondent, it is ordered by

the Court here that the said petition be, and the same is hereby

denied. Billings, J., not participating.

STATE OF MISSOURI-Sct.

I, THOMAS F. SIMON, Clérk of the Supreme Court of the State

of Missouri, certify that the foregoing is a full and complete

transcript of the judgment of said Supreme Court, entered of

record at the May Session thereof, 1990, and on the 19th day of

June, 1990, in the above entitled cause.

Given under oath my hand and seal

of said Court, at the City

of Jefferson, this 19th day

of June, 1990.

Clerk