Petition for Writ of Certiorari — Bledsoe v. United States

FILe

041142 FEB 22 2005 ©

NO. __gemies-oF THE CLERK

In The

Supreme Court of the Anited States

¢

RAYMOND L. BLEDSOE,

BILLY E. DACUS

And

MARSHALL DeWAYNE WILLIAMS,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

+

CARL NADLER, ESQUIRE

Counsel of Record

HELLER, EHRMAN,

WHITE & MCAULIFFE

1666 K Street, Suite 300

Washington, DC 20006

(202) 912-2575

Of Counsel:

BARRY A. BACHRACH

BOWDITCH & DEWEY LLP

311 Main Street

P. O. Box 15156

Worcester, MA 01615-0156

(508) 926-3403

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

OR CALL COLLECT (402) 342-2831

a

II.

III.

QUESTIONS PRESENTED

Whether the Tenth Circuit erroneously ignored the

unambiguous language of Section 235(b)(3), (Pub. L.

98-473, Title II) in ruling that the Defendants did not

violate that statute by the United States Parole

Commission’s failure to establish release dates for Pe-

titioners before October 11, 1989 within the applica-

ble parole guidelines.

Whether Section 235(b)(3) became effective October

12, 1984 as held by other circuits and by Congress’

mandate, or whether the Tenth Circuit erred in ruling

that Section 235(b)(3) did not become effective until

November 1, 1987.

Whether the Tenth Circuit violated the ex post facto,

bill of attainder and due process clauses by applying

retroactively Public Law 100-182, §2, which Congress

expressly provided would apply only to offenses com-

mitted after the enactment of the Act on December 7,

1987 and which, in any event, did not resurrect the

United States Parole Commission which became ex-

tinct as of midnight on October 11, 1989 by the terms

of the original Section 235(b)(3).

LIST OF PARTIES

The name of all parties appear in the caption of the

case. The Petitioners are not a corporation.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............:::scsssssssesesseseseseenees i

La a aT aT ee ii

CITATIONS OF OPINIONS AND ORDERS EN-

TERED BY LOWER COURTSG.........-cscscscccsssssssssessces 1

AGE CP FUT ION cc cnesesccessceccencscscseszcecestcceee 1

STATUTORY PROVISION INVOLVED...............:0:0000++ 1

STATEMENT OF THE CASE AND PERTINENT

iv

TABLE OF AUTHORITIES

Page

CASES

Carmell v. Texas, 529-U.S. 513 (2000) .0..........e ee eeeeeeeseeeees 10

Collins v. Youngblood, 497 U.S. 37 (1990) ............cccccseeceeees 9

Dallas v. Martin, 929 F.2d 587 (10th Cir. 1991)... 4

Dobbert v. Florida, 432 U.S. 282 (1977)............cccccsseseeeeees 11

Ex Parte Medley, 134 U.S. 160 (1890)... .eeeeeeeseeeeees 11

INS v. St. Cyr, 533 U.S. 289 (2000) 0.0... eee eeeeeseeeeeeeeeeeee 2,7

Landgraf v. USI Film Products, 511 U.S. 244 (1994)......... 7

Lynce v. Mathis, 519 U.S. 433 (1997).................00 2, 8, 9, 10

Lyons v. Mendez, 303 F.3d at 285 (3rd Cir. 2000)..... 4, 5, 11

Martin v. Haddix, 527 U.S. 343 (1999)..........000+ saiamesia 7

Mistretta v. United States, 488 U.S. 361 (1989).................. 5

Norwood v. Brennan, 891 F.2d 179 (7th Cir. 1989)............. 4

Piekarski v. Bogan, 912 F.2d 224 (8th Cir. 1990).......... 4,12

Rivers v. Roadway Express Inc., 511 U.S. 298 (1994)......... 7

Romano v. Luther, 816 F.2d 832 (2nd Cir. 1987)............... 11

United States v. Safarini, 257 F.2d 191 (D.C. 2003)........... 7

Weaver v. Graham, 450 U.S. 24 (1981) ................... 9, 10, 11

Wolf v. Mcdonnell, 418 U.S. 539 (1974) .0... cee eee ee 13

RULES AND STATUTES

Pe I iliac aks a ed ee 5,10

SP te EE chsnctcthanisadenacanaesieeses iactealiniaieeiiie tania in aaa 1

Vv

TABLE OF AUTHORITIES -— Continued

Page

Pile ta Ce ee 2

PEG RU DE asccencsnnssesnsnscsctonninnescunasssaiinnasciaita passim

ED Rail Be i ncccncansinnsssniinnsisstanstinasaxinnsniasiangnabaniis 12

Pais Re BF T i ccctitctiicrnisnninesnsscvtininsiinitibianitatimssiiactall 12

Senate Report No. 98-225 ........ssscccccccscsessssaccosceeeee 1, 3, 4, 13

1

CITATIONS OF OPINIONS AND ORDERS

ENTERED BY LOWER COURTS

Raymond L. Bledsoe, Billy E. Dacus, Marshall E. Williams

v. United States of America, United States District Court

for the District of Kansas, Case No. 01-3168-RDR, 2002

U.S. Dist. Lexis 1515.

Raymond L. Bledsoe, Billy E. Dacus, Marshall E. Williams

v. United States of America, United States Court of Ap-

peals, Tenth Circuit, No. 03-3224.

Raymond L. Bledsoe, Billy E. Dacus, Marshall E. Williams

v. United States of America, (10th Circuit December 3,

2004), order denying rehearing and suggesting for rehear-

ing en banc.

+

BASIS OF JURISDICTION

This petition seeks review of a decision of the United

States Court of Appeals for the Tenth Circuit which

affirmed a decision by the United States District Court for

the District of Kansas which decision ignored the proper

application of an unambiguous federal statute, and which

misapplication violated the ex post facto, the bill of attain-

der and due process clauses of the United States Constitu-

tion. This petition is authorized and timely under 28

U.S.C. §2101 and Rule 13(3) of the rules of the United

States Supreme Court.

+

STATUTORY PROVISION INVOLVED

This case involves The Sentencing Reform Act, Rep.

98-225, 1984 U.S.C.C.A.N. 3182, 3220. More specifically, it

2

involves Section 235(b)(3) of that Act (Public Law 98-473,

Title II, §235(bX3)), Public Law 100-182, §2, and Public

Law 100-182, §26.

+

STATEMENT OF THE CASE

AND PERTINENT FACTS

This petition raises issues of exceptional public

importance which affect not only the Petitioners but

numerous federal prisoners in the same position. It di-

rectly challenges the continuing illegal existence of the

United States Parole Commission (“Commission”) in

violation of an unambiguous federal statute in respect to

them. The Tenth Circuit’s misapplication of Congress’

‘express mandate resulted in the Court’s applying the

statute in violation of the ex post facto, bill of attainder

and due process clauses of the United States Constitution.

The Tenth Circuit’s decision conflicts with decisions of

other circuits on two distinct points — i.e., both the effec-

tive date of the original Act and the application of the

amendment — which conflict must be resolved by this

Court. Moreover, this petition must be reviewed because

the Tenth Circuit ignored controlling United States Su-

preme Court law (Lynce v. Mathis, 519 U.S. 433, 441

(1997)), by ruling that retroactive application of the

statute at issue did not violate the ex post facto and bill of

attainder clauses of the United States Constitution, and

ignored the plain and ambiguous legislative command to

apply the amendment to offenses occurring after Decem-

ber 7, 1987 again contrary to this Court’s controlling

holdings. INS v. St. Cyr, 533 U.S. 289 (2000).

3

In 1984, Congress passed the Sentencing Reform Act

(“SRA”) (S. Rep. 98-225, 1984 U.S.C.C.A.N. 3182, 3220),’

by which Congress sought to create a sentencing structure

that would eliminate disparity in sentencing, establish

certainty for release from confinement, and abolish the

Commission and the parole system. The Senate Report

noted:

At present, the concepts of indeterminate sen-

tencing and parole release depend for their justi-

fication exclusively upon this model of ‘coercive’

rehabilitation ... Recent studies suggest that

this approach has failed. Most sentencing judges,

as well as the Parole Commission, agree that the

rehabilitation model is not an appropriate basis

for sentencing decisions.

(S. Rep. 98-225 at 3221, 3223) (Emphasis added.) The

Senate Report continued:

The efforts of the Parole Commission to alleviate

- this disparity unfortunately contributed to a sec-

ond grave defect of present law: no one is ever

certain how much time a particular offender will

serve if he is sentenced to prison ... Thus, pris-

oners often do not really know how long they will

spend in prison until the very day they are re-

leased. The result is that the existing Federal

system lacks the sureness that criminal justice

must provide if it is to retain the confidence of

American society and if it is to be an effective de-

terrent against crime.

* Senate Report 98-225, 1984 U.S.C.C.A.N. 3182 will hereinafter be

cited by the respective page number as “S. Rep. 98-225 at __.”

Ee

4

(Id. at 3232-3233) (Emphasis added.) The Senate Report

concluded:

The shameful disparity in criminal sentences is a

major flaw in the existing criminal justice sys-

tem, and makes it clear, that the system is ripe

for reform. Correcting our arbitrary and capri-

cious method of sentencing will not be a panacea

for all of the problems which confront the ad-

ministration of criminal justice, but it will consti-

tute a significant step forward.

(Id. at 3248.) (Emphasis added.)

Congress enacted Section 235(b)(3), effective October

12, 1984,’ which required “the Parole Commission [to] set

a release date consistent with the applicable parole guide-

line” for those in its custody “prior to the expiration of the

five years,” at which point the Commission would become

extinct. Congress retained the Commission for five years

solely “to set release dates for prisoners sentenced before

that date” emphasizing that, by “the end of that period,

the Parole Commission would set final release dates for all

prisoners still in its jurisdiction.” Senate Report No. 98-

225, 98th Congress, First Session, September 12, 1983, p.

56 n.82.

In enacting Section 235(b)(3), Congress recognized the

inherent arbitrariness underlying parole decisions. As the

* Lyons v. Mendez, 303 F.3d at 285, 289 (3rd Cir. 2000); Piekarski v.

Bogan, 912 F.2d 224, 225 (8th Cir. 1990); Norwood v. Brennan, 891 F.2d

179, 181-82 (7th Cir. 1989); Dallas v. Martin, 929 F.2d 587, 589 & n.4

(10th Cir. 1991). The Tenth Circuit issued a conflicting ruling that the

statute did not become effective until December 7, 1987. Indeed, the

Tenth Circuit decision conflicted with prior decisions of that Court. See

Dallas v. Martin, 929 F.2d 587 (10th Cir. 1991).

5

United States Supreme Court stated in Mistretta v. United

States, 488 U.S. 361, 366 (1989):

It is observed that the indeterminate-sentencing

system had “unjustified” and “shameful” conse-

quences. The first was the great variation among

sentences imposed by different judges upon simi-

larly situated offenders. The second was the un-

certainty as to the time the offender would spend

in prison.

Over three years later, on December 7, 1987, Congress

amended Section 235(b)(3) by repealing only the release

_ criteria and restoring the criteria under 18 U.S.C. $4206,

Public Law 100-182, §2. Significantly, Congress expressly

provided: “The amendments made by this Act shall apply

with respect to offenses committed after the enactment of

this Act.” Public Law 100-182, §26. (Emphasis added.) The

amendment did not resurrect the Commission which

became extinct as of midnight on October 11, 1989, by the

terms of the original Section 235(b)(3).

This petition therefore involves the wrongful applica-

tion of Section 235(b)(3) of the SRA which: (1) became

effective October 12, 1984, Lyons v. Mendez, 303 F.3d 285,

289 (3rd Cir. 2002),* (2) provided a mechanism by which

* The Tenth Circuit issued a conflicting ruling that Section

235(b\(3) did not become effective until November 1, 1987. (Memoran-

dum of Decision at 4.) This is contrary to Congress’ expressed intent.

Indeed, according to the Commission’s quarterly meeting minutes from

November 14, 2002 (submitted December 26, 2002), the Commission

stated: “[O]n October 12, 1984 Congress eliminated federal parole and

set in place provisions at Section 235(b) of the Sentencing Reform Act

for the transition from a sentencing/punishment system with parole

eligibility to one in which the offenders would serve determinate

sentences.” See also note 2 supra.

6

prisoners sentenced “under the old system” would be

issued a release date within a five-year period from the

Act’s effective date, and (3) mandated “the Parole Com-

mission [to] set a release date consistent with the applica-

ble parole guideline” for those remaining in its custody

“prior to the expiration of the five years.” Pub. L. 98-473,

Title II, Section 235(b)(3).

The Tenth Circuit never even addressed Congress’

mandate that Public Law 100-182, §2, applied only pro-

spectively.‘ In direct contravention of the statutory

scheme, the Tenth Circuit upheld the Commission’s refusal

to establish dates of release within the parole guidelines,

as mandated by Congress, before the Commission statuto-

rily expired on midnight of October 11, 1989. By doing so,

the Tenth Circuit violated the ex post facto, the bill of

attainder and due process clauses of the United States

Constitution.

4

Vv

REASONS FOR GRANTING THE WRIT

I. THE TENTH CIRCUIT IGNORED CONGRESS’

MANDATE THAT PUBLIC LAW 100-182, §2,

APPLIED ONLY PROSPECTIVELY.

The Tenth Circuit completely ignored that the Decem-

ber 7, 1987 amendment applied only to crimes committed

after that date and, therefore, unnecessarily addressed

Constitutional issues. Indeed, since the amendment

* The Tenth Circuit, as did the District Court, literally accepted the

government's argument to ignore Congress’ mandate that the amend-

ment “shall apply with respect to offenses comnitted after the enact-

ment of the Act . . . [of] December 7, 1987.”

7

applied prospectively, the Tenth Circuit erred in ruling

that the original Section 235(b)(3) did not control Petition-

ers’ right to a release date before the expiration of the

Commission on midnight of October 11, 1989.

Courts must read statutes, wherever “fairly possible,”

to avoid serious constitutional issues. INS v. St. Cyr, 533

U.S. 289, 300 (2001); Landgraf v. USI Film Products, 511

U.S. 244, 265, 268-69 (1994); United States v. Safarini, 257

F.2d 191, 196 (D.C. 2003). Indeed, where, as here, Con-

gress has mandated the effective date, a “statement that a

statute will become effective on a certain date does not

even arguably suggest that it has any application to

conduct that occurred at an earlier date.” INS, 533 U.S. at

317, quoting, Landgraf, 511 U.S. at 257. See also Rivers v.

Roadway Express Inc., 511 U.S. 298, 313 n.12 (1994) (“In

statutory cases the Court has no authority to depart from

the congressional command setting the effective date of a

law that it has enacted”). Section 235(b)(3), as enacted and

effective on October 12, 1984, clearly and unconditionally

included all “old law” prisoners that would be in the

Commission’s jurisdiction on the day before five years from

the effective date — and that includes Petitioners.

Thereafter, Congress expressly declared that the

December 7, 1987 amendment would apply to “offenses

committed after [its] enactment.” Hence, it is “not even

arguable [to] suggest that it has any application to conduct

that occurred” before December 7, 1987. Martin v. Haddix,

527 U.S. 343, 352 (1999). Absent “a ‘clear congressional

intent’ favoring retroactive application,” the presumption

against retroactivity controls. Martin, 527 U.S. at 354,

quoting, Landgraf, 511 U.S. at 263, 280.

8

The Tenth Circuit, however, completely ignored that

Public Law 100-182, §2, applied only to offenses committed

after its effective date. To compound that error, the Tenth

Circuit erroneously determined the effective date of the

original Section 235(b)\(3) which applied to Petitioners as

of October 12, 1984, instead ruling it became effective on

November 1, 1987." In any event ... , the amendment

could not apply to the Petitioners whose offenses were all

committed before December 7, 1987. This error is particu-

larly egregious where, as here, the constitutional infirmi-

ties could have been avoided by the Tenth Circuit’s simply

following Congress’ mandate that Public Law 100-182, §2,

applied only to crimes committed after December 7, 1987.

See Public Law 100-182, §26. This Court should grant the

instant petition for this reason alone to correct this error

by the Tenth Circuit which conflicts with decisions of other

circuits and its own circuit.

Il. THE TENTH CIRCUIT ERRED IN RULING

THAT PUBLIC LAW 100-182, §2 DID NOT VIO-

LATE THE EX POST FACTO AND BILL OF AT-

TAINDER CLAUSES WITH RESPECT TO THE

PETITIONERS.

In ruling that Defendants have not violated the ex

post facto and bill of attainder clauses of the Constitution,

the Tenth Circuit committed clear error by completely

ignoring the case of Lynce v. Mathis, 519 U.S. 433, which

controls the issue presented. A law violates the ex post

facto and bill of attainder clauses if it disadvantages the

offender affected by “increasing the punishment for the

* This ruling conflicts with rulings of other circuits. See Notes 2

and 3 supra.

9

crime.” Lynce, 519 U.S. at 441. See also Collins uv.

Youngblood, 497 U.S. 37, 50 (1990). In Lynce, 519 U.S. at

441, 443-46, the United States Supreme Court applied two

factors: (1) the act “‘must apply to events occurring before

its enactment,’ and it (2) ‘must disadvantage the offender

affected by it.’” See also Weaver v. Graham, 450 U.S. 24,

29 (1981). “The relevant essential inquiry demanded by

the Ex Post Facto Clause” is “whether the [legislative

action] had the effect of lengthening [the] period of incar-

ceration.” 519 U.S. at 443.

It is beyond question that, as applied by the Tenth

Circuit, Public Law 100-182, §2, “had the effect of length-

ening [Petitioners] period of incarceration” from the

provisions in effect under the original Section 235(b)(3).

Just as in Lynce, “it is quite obvious that the retroactive

change was intended to prevent the early release of

prisoners ... who had accumulated” a right to mandatory

release within the parole guidelines under the original

Section 235(b)(3). 519 U.S. at 445. The December 1987

amendment clearly “disadvantaged” the Petitioners

because “it ... prolonged [their] imprisonment.” 519 U.S.

at 446-47.

Instead of applying the Lynce analysis, the Tenth

Circuit accepted the government’s argument (which was

rejected in Lynce): “that petitioner[s] [are] not entitled to

relief because [the mandatory release provisions under the

original Section 235(b)(3)] was a statute enacted after the

date of [their] offense[s] rather than pursuant to [statutes

in effect at the time of their offenses].” Lynce, 519 U.S. at

447.

Under Lynce, ex post facto analysis requires a deter-

mination of the law in effect when the retroactive change

10

“lengthening [the] period of incarceration” became effec-

tive. As of the effective date of the original Section

225(b)(3) (October 12, 1984), that statute governed the

terms of imprisonment and release of Petitioners. Instead

of analyzing the effect Public Law 100-182, §2 had on the

rights provided to Petitioners under the original Section

235(b)(3) as originally enacted, the District Court looked to

the originally imposed lengths of sentences and 18 U.S.C.

§4206, to determine the actual effects upon their sen-

tences. This analysis ignored the appropriate ex post facto

analysis as established in Lynce.

-The Tenth Circuit thus erroneously failed to address

the real question presented which necessarily turns upon

the state of the law before the effective date of December

7, 1987 legislation. Carmell v. Texas, 529 U.S. 513, 520

(2000) (““The critical question [for an ex post facto viola-

tion] is whether the law changes the legal consequences of

acts completed before its effective date.’”) (quoting Weaver

v. Graham, 450 U.S. 24, 31 (1981)). Just as the “over-

crowding statute in effect” at the time of Lynce’s offense

“was modified in subsequent years” leading to the accumu-

lation of additional good-time credits which reduced

Lynce’s confinement from his original sentence, Lynce, at

447-449; so too, the original Section 235(b)(3) enacted after

Petitioners’ offenses, shortened Petitioners’ sentences.

Section 235(b)(3) modified the Commission’s discretionary

release authority under 18 U.S.C. §4206 and mandated

non-discretionary release under the parole guidelines.

Public Law 100-182, §2 clearly “change[d] the legal conse-

quences” of their sentences as they existed “before its

effective date” and the change was highly detrimental

[literally penalizing] to Petitioners. Public Law 100-182,

§2 which amended Section 235(b)(3) and restored the

11

Commission’s arbitrary and capricious decision-making

until its expiration on October 11, 1989, the retroactive

application in violation of Congress’ express statement of

prospective application only is classically unconstitu-

tional.* Weaver v. Graham, 450 U.S. at 33 (“[A] retroactive

law ... can be constitutionally applied to Petitioners only

if it is not to [their] detriment.”) (citing Dobbert v. Florida,

432 U.S. 282, 293-294 (1977)); Ex Parte Medley, 134 U.S.

160 (1890).

Lyons v. Mendez, 303 F.3d 285, is the only case found

by Petitioners that addresses the penultimate issue raised

herein. In that case, Lyons committed his offense and was

sentenced in 1986. The Court reviewed the entire statu-

tory scheme to determine the effective date of Section

235(b\(3) and whether the mandatory release dates ap-

plied to him. The Court correctly concluded that Section

235(b)\(3) became effective on October 12, 1984. 303 F.3d at

291 (“Section 235(b)(3) took effect upon enactment”). In

doing so, it reasoned that, to hold that Section 235(b)(3)

did not take effect until November 1, 1987, would create

“an absurd result” by prohibiting the other criteria neces-

sary to engage the new Sentencing Commission and its

guidelines within statutorily required periods. 303 F.3d at

291-292 (quoting and adopting the reasoning of Romano v.

Luther, 816 F.2d 832, 839 (2nd Cir. 1987)).

* The amendment did not in any way resurrect the Commission.

The Commission expired as of October 11, 1989. Any attempt by

Congress to resurrect it thereafter was null and void. In any case a

Parole Commission and statutes created or re-created on December 1,

1990 would present a clear ex post facto problem, if applied to Petition-

ers, who were no longer subject to Parole or a Parole Commission and,

who, by prior law, had been congressionally ordered to be released

within certain dates.

12

Since the Lyon’s Court correctly determined that the

effective date of §235(b)(3) is October 12, 1984, this neces-

sarily means that the five-year period ended on October

11, 1989, and the Commission and all the parole laws

listed in §§218(a) and 235(b)(1) were abolished and re-

pealed on October 12, 1989. See e.g. Piekarski v. Bogan,

912 F.2d 224, 225 (8th Cir. 1990) (Parole Commission

abolished in 1989, five years after date of enactment of

§325(b)(3)).

Thus, the first five-year continuation of the Commis-

sion and the parole statutes, enacted by Public Law 101-

650, Section 316, 104 Stat. 5115, on December 1, 1990,

simply had no operational effect.’ There was no Commis-

sion or parole statutes left to continue for five years, and

the amendments passed since that time granting addi-

tional extensions, the latest being Public Law 107-273,

Section 11017(a), 116 Stat. 1758, 1824 (2002), have no

applicability, and certainly not respecting Petitioners.

Il, THE TENTH CIRCUITS RULING UPHELD A

SENTENCING SYSTEM DECLARED BY CON-

GRESS TO BE ARBITRARY AND CAPRICIOUS

VIOLATING THE DUE PROCESS CONSTITU-

TIONAL PROHIBITION FAILING TO PROTECT

PETITIONERS’ LIBERTY OF WHICH THEY

WERE CONSTITUTIONALLY ENTITLED.

The Tenth Circuit never even addressed Petitioners

argument that their due process rights were denied by

application of the December 7, 1987 amendment. This due

” See Note 6 supra.

13 \

process analysis is supported by the very purposes Con-

gress enacted the original Section 235(b)(3).

Section 235(b)(3) was enacted to obviate the “arbitrary.

and capricious” punishment inherent and uncorrectable in

the federal parole system. Sen. Rep. No. 98-225, at 65

(“Conclusions” finding parole system “arbitrary and

capricious” requiring “correction”). Despite Congress’

recognition of the inherent arbitrariness of the system

under which the Commission exercised discretion in

determining parole: dates, the Tenth Circuit held Public

Law 100-182, §2, applied to Petitioners and thereby

restored the very arbitrary and capricious system that

Congress abolished. This ruling is blatantly wrong since

the Commission’s decisions relative to the Petitioners are

arbitrary and capricious as a matter of law in violation of

the Due Process Clause of the Fifth Amendment.

The loss of liberty and criminal punishment present

significantly different considerations. It would be entirely

irrational to suppose Congress intended to subject Peti-

tioners to punishment already declared “arbitrary and

capricious” by Congress. Cf. Wolf v. Mcdonnell, 418 U.S.

539, 588 (1974) (“The touchstone of due process is protec-

tion of the individual against arbitrary action of govern-

ment.”) .

Because Congress mandated that the amendment

applied only prospectively, Congress did not violate Peti-

tioners’ due process rights. However, the Commission and

the courts are doing so by defying the mandate of Con-

gress, and the Commission, as upheld by the courts, is

acting arbitrarily and capriciously in violation of Petition-

ers’ due process rights just as Congress recognized.

4

Vv

14

CONCLUSION

In accordance with the arguments and authorities set

forth herein, Petitioners respectfully request that this

Court grant its Petition for a Writ of Certiorari and find

that the Tenth Circuit erroneously failed to apply

Amended Section 235(b)(3) only prospectively, or, alterna-

tively, that Amended Section 235(b\(3), as applied retroac-

tively, is unconstitutional and that the matter should be

remanded to the United States District Court to take

appropriate action to enforce the original Section

235(b\3).

Respectfully submitted,

RAYMOND L. BLEDSOE,

BILLy E. DACUS AND

MARSHALL DEWAYNE WILLIAMS

By Their Attorney

WHITE & MCAULIFFE

1666 K Street, Suite 300

Washington, DC 20006

(202) 912-2575

Of Counsel:

BARRY A. BACHRACH

BoOwDITCH & DEWEY LLP

311 Main Street

P. O. Box 15156

Worcester, MA 01615-0156

(508) 926-3403

February 22, 2005

App. 1

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAYMOND L. BLEDSOE;

BILLY E. DACUS;

MARSHALL E. WILLIAMS,

Petitioners-Appellants, | 7, 93.3904

v

UNITED STATES

OF AMERICA,

Respondent-Appellee.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 01-CV-3168-RDR)

(Filed Oct. 1, 2004)

Submitted on the briefs:

Charles M. Rogers, Jeremy S. Weis, and Rebecca M. Hain

of Wyrsch Hobbs & Mirakian, P.C., Kansas City, Missouri,

for Petitioners-Appellants.

Eric F. Melgren, United States Attorney and Nancy Cap-

linger, Assistant United States Attorney, District of Kan-

sas, and Richard A. Friedman, Appellate Section, Criminal

Division, United States Department of Justice, Washing-

ton, D.C., for Respondents-Appellees.

App. 2

Before TACHA, Chief Judge, MURPHY, Circuit Judge,

and CAUTHRON,,* Chief District Judge.

MURPHY, Circuit Judge.

In this appeal we are asked to determine whether a

1987 amendment to the Sentencing Reform Act violated

petitioners’ rights to due process, or was otherwise an

unlawful bill of attainder or Ex Post Facto law. Because we

answer those questions in the negative, we affirm the

decision of the district court.**

Background and Procedural History

Before November 1, 1987, The Parole Commission and

Reorganization Act of 1976 (PCRA) governed the terms of

federal sentences. Pub. L. No. 94-233, § 2, 90 Stat. 219

(codified as amended at 18 U.S.C. §§ 4201-4218 (1982)

* The Honorable Robin J. Cauthron, Chief District Judge, United

States District Court for the Western District of Oklahoma, sitting by

designation.

** After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially

assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);

10th Cir. R. 34.1(G). The case is therefore ordered submitted without

oral argument.

Petitioners had requested oral argument both in their brief and in

a separate motion, and respondent had noted that it was “not opposed”

to argument being granted. But, because this case may be decided

entirely on the briefs, we have determined that oral argument is not

necessary.

App. 3

(repealed 1984, effective 1987)). The PCRA empowered the

Parole Commission to evaluate prisoners’ behavior and to

award them early release on the basis of positive institu-

tional adjustment. See 18 U.S.C. § 4206. Dissatisfied with

this system, Congress passed the Sentencing Reform Act of

1984 (SRA). The SRA became effective on November 1,

1987, when it repealed and replaced the PCRA. Pub. L.

No. 98-473, §§ 212, 218, 98 Stat. 1987, 2027 (codified as

amended at 18 U.S.C. §§ 3551-59, 3561-66, 3571-74, 3581-

86, 28 U.S.C. §§ 991-98 (1988)). Under the SRA, parole

was to be abolished, the Parole Commission was to be

phased out, and prisoners were to serve uniform sentences

under sentencing guidelines. See id.

The SRA originally provided that, before the end of its

extinction after a five-year window, the Parole Commis-

sion was to reset the release dates of prisoners who were

serving sentences imposed before the SRA’s effective date

to comport with the SRA’s guidelines. Sentencing Reform

Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, 2032 (1984),

reprinted in 18 U.S.C. §3551 note (1988). Section

235(b)(3) of the original SRA provided that:

The United States Parole Commission shall set

a release date, for an individual who will be in

its jurisdiction the day before the expiration of

five years after the effective date of this Act,

that is within the range that applies to the pris-

oner under the applicable parole guideline. A re-

lease date set pursuant to this paragraph shall

be set early enough to permit consideration of

an appeal of the release date, in accordance

with Parole Commission procedures, before the

App. 4

expiration of five years following the effective

date of this Act.

Id."

In Lewis v. Martin, 880 F.2d 288, 290 (10th Cir. 1989),

this court characterized Section 235(b)(3) as

a “winding-up” provision to ensure that the Pa-

role Commission will set release dates for all

prisoners sentenced under the old statutes before

it goes out of business on November 1, 1992. See

id. at 839-40. The subsection does not require the

Commission to take immediate action on the re-

lease date of any prisoner. Rather, by its own

terms, the subsection requires the Commission to

set a release date for any prisoner within its ju-

risdiction sufficiently before November 1, 1992,

to allow him time to appeal the decision.

Id. at 290.’

On December 7, 1987, thirty-six days after the SRA

became effective, Congress amended the Act to clarify that

the terms of the PCRA would continue to govern the

sentences of those prisoners sentenced prior to the effec-

tive date of the SRA, and extended the life of the Parole

Commission to administer those sentences. Sentencing Act

* The five-year period after the effective date of the Act began to

run on November 1, 1987. Lewis v. Martin, 880 F.2d 288, 290 (10th Cir.

1989) (citing Lightsey v. Kastner, 846 F.2d 329, 332 (5th Cir. 1988), and

Romano v. Luther, 816 F.2d 832, 837-39 (2d Cir. 1987)).

* Congress has repeatedly extended the life of the Parole Commis-

sion to administer those prisoners with pre-SRA sentences. See, e.g.,

Pub. L. No. 101-650, Title ITI, § 316, 104 Stat. 5089, 5115 (extension for

ten years); Pub. L. No. 104-232, § 2(a), 110 Stat. 3055 (extension for

fifteen years). The life of the Commission has most recently been

extended to October 31, 2005. See id.

App. 5

of 1987, Pub. L. No. 100-182, § 2(b)(2), 101 Stat. 1266

(1987). As we explained in Lewis v. Martin,

On December 7, 1987, section 235(b)\(3) was

amended to delete the clause requiring the

Commission to set release dates within the

guideline range. See Sentencing Act of 1987, Pub.

L. 100-182, § 2(b)(2), 101 Stat. 1266 (1987) (1987

amendment). The amended section 235(b)(3) re-

quires the Commission to set release dates ‘pur-

suant to section 4206 of Title 18 United States

Code,’ which permits release dates outside the

guideline range.

880 F.2d at 290.

Petitioners, three federal prisoners who were sen-

tenced for violent crimes prior to 1987, object to the

application of this 1987 amendment. They brought peti-

tions for writs of habeas corpus pursuant to 28 U.S.C.

§ 2241 arguing that, during the thirty-six days in which

the original Section 235(b)(3) was in effect, a liberty

interest arose that guaranteed them the right to be resen-

tenced under the new sentencing guidelines. Because they

have not been resentenced, they argue that their due

process rights have been abridged. They further maintain

that the 1987 amendment to the SRA, which clarified

Section 235(b)(3) of the Act, was unconstitutional as either

a bill of attainder or an Ex Post Facto law.

The district court of Kansas referred petitioners’ case

to a magistrate judge. The magistrate judge evaluated

petitioners’ arguments under the Due Process, as well as

under the bill of attainder and Ex Post Facto clauses, and

she found petitioners’ arguments to be without merit. She

found that petitioners did not have a cause of action under

due process because the Tenth Circuit had held in Lewis,

App. 6 }

880 F.2d at 290, that certain prisoners in custody before

the effective date of the SRA had no statutory interest —

and therefore no liberty interest — in being released within

the SRA’s guideline ranges. Aplt. App. at 0182-83. The

magistrate judge determined that petitioners had not been _

subject to a bill of attainder because, by definition, a bill of

attainder “legislatively determines guilt and inflicts

punishment upon an identifiable individual without

provision of the protections of a judicial trial.” Jd. at 0184

(quoting Nixon v. Adm’r of Gen. Servs., 4383 U.S. 425, 468

(1977)). Congress’s 1987 amendment to the SRA had not

singled out any identifiable group of individuals, nor had it

inflicted any punishment upon petitioners beyond main-

taining their original sentences. Id. (citing United States v.

Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997)). Finally, the

magistrate judge found that petitioners had not been

subject to punishment in violation of the Ex Post Facto

clause. Citing United States v. Gerber, 24 F.3d 93, 96 (10th

Cir. 1994), the magistrate judge reiterated that the Ex

Post Facto clause is violated only when a law imposes a

greater punishment on an individual who commits an

offense than the punishment that was in existence when

the person committed the offense. Jd. at 0183. Because the

law in existence when the petitioners committed their

crimes before 1987 permitted sentences beyond the SRA’s

guideline ranges, the 1987 amendment that maintained

the continuity of the law in place when they committed

those crimes did not violate the Ex Post Facto clause. See

id. The district court adopted the findings and conclusions

of the magistrate judge’s report and recommendation, and

it denied petitioners’ applications for writs of habeas

corpus.

App. 7

Discussion

Because petitioners are federal prisoners, a certificate

of appealability is not required to consider the district

court’s denial of a writ under 28 U.S.C. § 2241. Montez v.

McKinna, 208 F.3d 862, 867 (10th Cir. 2000); McIntosh v.

United States Parole Comm’n, 115 F.3d 809, 810 n.1 (10th

Cir. 1997). We review a district court’s denial of a writ

under 28 U.S.C. § 2241 de novo. Hunnicutt v v. Hawk, 229

F.3d 997, 1000 (10th Cir. 2000).

We agree with the district court’s decision, and we

note that arguments similar to petitioners’ have been

found to be without merit by federal appellate courts

across the country. Today we join those circuits in holding

that Congress’s 1987 amendment to the SRA did not deny

prisoners such as petitioners, who committed crimes

before the effective date of the SRA, due process; the

amendment was not a bill of attainder; nor did enactment

of the amendment violate the Ex Post Facto clause.

Due Process

Petitioners do not have a liberty interest in having

their release dates recalculated under the SRA because

the SRA, for the thirty-six days it remained in its original

form, does not necessarily apply to them. See Lewis, 880

F.2d at 290-91 (holding that certain prisoners who were

incarcerated before the effective date of the SRA and

whose sentences exceeded their guideline range had no

statutory interest, and therefore no liberty interest under

due process, in having their sentences reformed under the

SRA). Although our decision in Lewis concerned a prisoner

who would be released before the Parole Commission was

scheduled to expire in 1992, our reasoning in that case has

App. 8

broader application to prisoners scheduled for release after

1992. Id. at 291. We today confirm what has been assumed

by the magistrate judge and the district court here that

Lewis establishes that petitioners have no statutory

interest — and therefore no vested liberty interest — in

release under the SRA when there is no certainty that

they may be in the custody of the Parole Commission

when it expires.

In Lewis, we rejected a prisoner’s argument that the

original SRA had created a statutory right for all prisoners

in custody before the Parole Commission’s initial expira-

tion date in 1992 to be resentenced under that statute’s

guidelines. We reasoned that: “If Lewis were correct,

section 235(b)(3) [of the original SRA] would be trans-

formed from a mere phase-out provision into a sweeping

decision to grant earlier release dates to large numbers of

federal prisoners currently serving time beyond their

guideline-recommended release dates.” Id. at 290-91. We

then quoted at length from the Second Circuit’s decision in

Romano v. Luther, 816 F.2d 832, 840-41 (2d Cir. 1987),

which discussed the history and context of the SRA, and

which confirmed that “[s]ubsection 235(b)(3) is obviously

designed to deal with a very specific problem — the need to

be sure a parole date is established for all those who will

still be in prison the day before the Parole Commission

ceases to exist,” not the desire to release pre-1987 prison-

ers within SRA guidelines. Id. at 841.’ Because the Parole

* As the Romano court elaborated,

The premise of Romano’s argument is that Congress was so

dissatisfied with the practice of the Parole Commission of

setting release dates for some prisoners beyond their appli-

cable guideline ranges that it enacted subsection 235(bX3)

to stop that practice and to require the Commission to set

(Continued on following page)

App. 9

Commission would still be in existence when Lewis was to

be released in 1989, we held that the provisions of the SRA

did not apply to him. Lewis, 880 F.2d at 291.

Extension of our rationale in Lewis establishes that

petitioners in the instant case similarly have no statutory

interest — and therefore no vested liberty interest — in the

SRA despite the fact that they have release dates after

1992, and despite the fact that the life of the Commission

has, as of most recently, been extended to October 31,

2005, see Pub. L. No. 107-273, § 11017(a), 116 Stat. 1758,

1824 (2002), when petitioners’ release dates are in 2007,

2008, and 2009. Because the language of the original SRA

provision required the Commission to set release dates

only for prisoners “who will be in its jurisdiction the day

before the expiration of five years after the effective date

of this Act” and the release dates were merely to be “set

early enough to permit consideration of an appeal of the

release date, in accordance with Parole Commission

procedures, before the expiration of five years following

the effective date of this Act,” the implication is that the

statute was solely to affect prisoners who would be under

release dates within the applicable guideline range for a

large group of prisoners — all those whose maximum sen-

tences continue beyond the day before the transition period _

ends and the Commission is abolished. Though Congress

expressed dissatisfaction with the Commission’s use of its

parole guideline system, see Senate Report at 53-56, re-

printed in 1984 U.S. Code Cong. & Admin. News 3236-39,

its remedy was to replace the parole system with the new

system of determinate sentencing without parole, not to re-

quire a large number of prisoners sentenced under the cur-

rent system to be released within their applicable parole

guideline ranges.

Id. at 841.

App. 10

the jurisdiction of the Parole Commission just before the

Commission expired. Pub. L. No. 98-473, § 235(b\3), 98

Stat. 1837, 2032 (1984); accord Romano, 816 F.2d at 841;

Lightsey v. Kastner, 846 F.2d 329, 332 (5th Cir. 1988). But

Lewis and the Second Circuit’s decision in Romano both

establish that being in the “jurisdiction” of the Parole

Commission means that the prisoner remains in the

physical custody of the Parole Commission. Lewis, 880

F.2d at 290-91; Romano, 816 F.2d at 841; accord Val-

ladares v. Keohane, 871 F.2d 1560, 1563 (11th Cir. 1989).

Hence, the statute controls only the sentences of that

limited group of prisoners who will actually be incarcer-

ated the day before the Commission does finally and

ultimately expire.* See Romano, 816 F.2d at 841; accord

United States ex rel. D'Agostino v. Keohane, 877 F.2d 1167,

1171 (3d Cir. 1989) (reiterating that the “Commission was

directed to set a release date for individuals sentenced

under the old system who would still be incarcerated on

the date prior to the expiration of the Commission”). And

every time Congress extends the life of the Commission,

the Commission need not set release dates again within

the guidelines until just before the Commission is to

expire. See Romano, 816 F.2d at 839; accord, e.g., Stange v.

United States Parole Comm’n, 875 F.2d 760, 762 (9th Cir.

1989).

* See also Romano, 816 F.2d. at 841 n.11 (recognizing the anomaly

that will be present when the Commission must, at some future point,

set release dates within the guidelines for prisoners who have already

served sentences beyond the guidelines, but concluding that the

number of prisoners that the anomaly will affect will be small and that

the anomaly “is not a reason for construing the subsection as Romano

does”).

App. 11

Because we will not know if petitioners will be in the

group that must actually be resentenced under the guide-

lines on the day before the Commission expires until after

Congress actually permits the Parole Commission to

expire, we hold that petitioners do not now have a statu-

tory interest, and therefore cannot have a liberty interest,

in the language of the original SRA. Lewis, 880 F.2d at

290. And, because petitioners have not established that

they will have a liberty interest in being resentenced

under the SRA, we hold that petitioners have not estab-

lished the violation of that interest as necessary to pursue

a due process claim. See Bd. of Pardons v. Allen, 482 U.S.

369, 378 n.10 (1987) (noting that only when “statutes or

regulatory provisions are phrased in mandatory terms or

explicitly create a presumption of release [will] courts find

a liberty interest” to support a due process claim). We thus

affirm the district court’s denial of petitioners’ due process

claim.

Bill of Attainder and Ex Post Facto Clause®

We also agree that the petitioners have not been

subject to a bill of attainder, and that the 1987 amendment

* In the unpublished case of Gade v. United States Parole Comm’n,

103 F.3d 144 (Table), No. 96-1341, 1996 WL 718127 (10th Cir. Dec. 13,

1996), we dismissed similar issues in a cursory fashion. We issue a

published opinion today, but reach the same conclusion about the

merits of these series of arguments. As we explained in Gade,

Mark Winslow Gade appeals the district court’s order deny-

ing his petition for a writ of habeas corpus brought pursu-

ant to 28 U.S.C. § 2241. Gade argues that: (1) under the

original version of §\235(b\(3) of the Sentencing Reform Act

of 1984, Pub. L. No. 98-473, § 235(bX(3), 98 Stat. 2032 (1984)

(codified as amended at 18 U.S.C. § 3551 (1985 & Supp.

App. 12

does not violate the Ex Post Facto clause. See generally

U.S. Const. art. I, § 9, cl. 3 (“No Bill of Attainder or Ex

Post Facto Law shall be passed.”).

As the magistrate judge and district court appropri-

ately noted, a bill of attainder “legislatively determines

guilt and inflicts punishment upon an identifiable indi-

vidual without provision of the protections of a judicial

trial.” Nixon, 433 U.S. at 468. The language of the 1987

1996)), and its original regulatory interpretation at 28

C.F.R. 2.64 (1987), the Parole Commission is required to set

Gade’s release date within the guidelines of sixty to seventy-

two months and because he has already served in excess of

seventy-two months he is entitled to immediate release; (2)

the amended versions of § 253(b\(3) and 28 C.F.R. 2.64,

which expressly allow the Parole Commission to set release

dates outside the guidelines, are Ex Post Facto laws; and (3)

in any event, the Parole Commission was required to re-

lease him in February, 1994, because he had then served

eighty months, a third of his twenty-year sentence. The

magistrate judge concluded that Gade’s arguments have no

merit and recommended that the district court dismiss the

petition. The district court adopted the magistrate’s opinion

and denied the petition.

Gade’s renewed arguments on appeal are simply variations

on a theme that courts have been hearing from federal pris-

oners since the enactment of the original version of

§ 253(b)(3). This court and at least seven other circuits have

rejected same or similar arguments. See, e.g., Lewis v. Mar-

tin, 880 F.2d 288 (10th Cir. 1989); Piekarski v. Bogan, 912

F.2d 224 (8th Cir. 1990); Skowronek v. Brennan, 896 F.2d

264 (7th Cir. 1990); Valladares v. Keohane, 871 F.2d 1560

(11th Cir. 1989); Tripati v. United States Parole Comm'n,

872 F.2d 328 (9th Cir. 1989); United States{, ex rel.

D'Agostino] v. Keohane, 877 F.2d 1167 (3d Cir. 1989); Light-

sey v. Kastner, 846 F.2d 329 (5th Cir. 1988); Romano v. Lu-

ther, 816 F.2d 832 (2d Cir. 1987). In view of the settled law

on this subject, Gade’s contentions are frivolous.

Gade, 1996 WL 718127, at **1 (footnote omitted).

—

App. 13

amendment merely amended the original SRA to delete

the clause requiring the Commission to set release dates

within the guideline range. See Sentencing Act of 1987, -

Pub. L. No. 100-182, § 2(b)(2), 101 Stat. 1266 (1987) (1987

amendment); Lewis, 880 F.2d at 290. Petitioners are

members of an entire class of persons who might be

affected. Indeed, our earlier discussion whether petitioners

may be affected by the language of the original provision

of the SRA at all highlights the ambiguity of the provision

and how imprecisely it is targeted. Because petitioners

have thus not been targeted as “identifiable individuals,”

we hold that the 1987 amendment was not a bill of attain-

der. Nixon, 433 U.S. at 468; Dorlouis, 107 F.3d at 257.

Finally, we join many federal courts of appeal in

holding that the 1987 amendment as applied to prisoners

who committed crimes prior to the Sentencing Reform

Act’s enactment does not violate the Ex Post Facto clause.®

* The most succinct analysis on this issue is a recent unpublished

decision from the Seventh Circuit, which disposes of the question in no

more than a few lines:

Anthony Leisure is serving time for crimes committed be-

fore the Sentencing Reform Act of 1984. See United States v.

Leisure, 844 F.2d 1347 (8th Cir. 1988). That statute called

for all such persons to receive a determinate parole date,

within the range determined by a set of guidelines, by 1992,

when the Parole Commission would go out of existence. In

1987 Congress repealed this provision and extended the Pa-

role Commission’s existence indefinitely. Leisure has been

considered for parole twice since 1987. On each occasion the

Commission decided that he should be held until the expira-

tion of his sentence in 2007. Leisure now seeks a writ of ha-

beas corpus, see 28 U.S.C. § 2241, contending that the Ex

Post Facto Clause prevents application to him of the 1987

statute and entitles him to release.

Leisure misunderstands how the Ex Post Facto Clause

works. He thinks that it gives prisoners the benefits of laws

(Continued on following page)

App. 14

See, e.g., Fassler v. United States Parole Comm'n, 964 F.2d

877, 880 (9th Cir. 1991) (holding that, because the SRA did

not affect the prisoner’s sentence, the 1987 amendment to

the SRA could have no Ex Post Facto effect); United States

v. McCall, 915 F.2d 811, 816 (2d Cir. 1990) (holding that

the SRA had no Ex Post Facto effect on a prisoner who,

inter alia, had committed his crimes before the effective

date of the Act); United States v. Sussman, 900 F.2d 22, 24

(3d Cir. 1990) (“[Wle reject defendant’s argument because

we conclude that defendant was never entitled to be

sentenced under the sentencing guidelines. Therefore,

defendant’s Ex Post Facto rights were not violated.”);

Tripati v. United States Parole Comm’n, 372 F.2d 328, 330

(9th Cir. 1989) (per curiam) (“Tripati is not disadvantaged

by the amendment [under the meaning of the Ex Post

Facto clause] because neither section 235(b)(3) of the SRA

as originally enacted nor as amended is applicable to

in force at the time of their convictions — and as he was sen-

tenced after the 1984 statute, but before the 1987 repeal, he

thinks that this gives him vested rights under the 1984 law.

That is not correct. The Ex Post Facto Clause forbids detri-

mental changes in law after the date of the criminal con-

duct. See Weaver v. Graham, 450 U.S. 24, 28 (1981). The

dates of conviction and sentencing are irrelevant. See Rogers

v. Tennessee, 532 U.S. 451, 456 (2001). Although the 1987

statute may cause problems with respect to persons whose

offenses were committed after the 1984 law and before the

repeal, see Lyons v. Mendez, 303 F.3d 285 (3d Cir. 2002),

there is no constitutional problem with respect to crimes

committed before the Sentencing Reform Act of 1984. Lei-

sure is in exactly the position he would have occupied had

none of the intervening statutes been enacted, so he has no

legitimate constitutional complaint. See Skowronek v. Bren-

nan, 896 F.2d 264 (7th Cir. 1990); Norwood v. Brennan, 891

F.2d 179 (7th Cir. 1989).

Leisure v. Hastings, 95 Fed. Appx. 181 (7th Cir. Mar. 24, 2004).

App. 15

him.”); United States v. Haines, 855 F.2d 199, 201 (5th Cir.

1988) (“[T]he later 1987 amendment made no change in

the law. It merely confirmed the intent of the 1984 statute

as Congress had enacted it [not to apply retroactively in

violation of the Ex Post Facto clause].”); United States v.

Stewart, 865 F.2d 115, 117-18 (7th Cir. 1988) (“We need

only look to Congress’ clearly expressed intent that the

SRA would apply only to offenses committed on or after

the effective date in order to avoid the apparently uncon-

stitutional interpretation urged upon us by Stewart... .

[And the 1987] amendment clarifying the meaning of the

effective date of the SRA further supports our interpreta-

tion that Congress never intended, even with respect to

the pre-amendment Act, for the SRA to apply to offenses

committed prior to November 1, 1987.”); Lightsey, 846 F.2d

at 333 (“[We] face and reject the notion of Ex Post Facto

unconstitutionality [in application of the 1987 amend-

ment].”); cf. United States v. Cooper, 63 F.3d 761, 762 (8th

Cir. 1995) (per curiam) (holding that, even when a defen-

dant committed the last of his crimes after 1992, he had

“fair warning” of the total penalty that additional criminal

conduct would entail, and that warning was all that the

Ex Post Facto clause required). But cf. Lyons v. Mendez,

303 F.3d 285, 286 (3d Cir. 2002) (holding that the 1987

amendment did constitute a violation of the Ex Post Facto

clause as applied to increase a prisoner’s sentence when

the particular upward departures used by the Commission

after passage of the amendment would not have been

permitted when the prisoner committed his crime).

The Ex Post Facto clause is meant “to assure that

legislative Acts give fair warning of their effect and permit

individuals to rely on their meaning until explicitly

changed.” Weaver v. Graham, 450 U.S. 24, 28-29 (1981);

App. 16

see also Miller v. Florida, 482 U.S. 423, 430 (1987); Dob-

bert v. Florida, 432 U.S. 282, 293 (1977). The clause

restrains “arbitrary and potentially vindictive legislation.”

Weaver, 450 U.S. at 29, 101 S.Ct. 960. “Critical to relief

under the Ex Post Facto Clause is not an individual's right

to less punishment,” however, “but the lack of fair notice

and governmental restraint when the legislature increases

punishment beyond what was prescribed when the crime

was consummated.” Jd. at 30.

We thus hold that application of the 1987 amendment

to petitioners is not a violation of the Ex Post Facto clause

because the amendment merely reinstated the same

consequences that petitioners faced when they committed

their crimes. Petitioners had fair warning of what their

punishments would be, and the 1987 amendment in no

way increased their punishments “beyond what was

prescribed when the crime was consummated.” Id. Indeed,

because petitioners continue to serve their sentences

under the same conditions as when they committed their

crimes, the 1987 amendment merely clarified that they

were not entitled to the windfall of shorter sentences

under the guidelines. See Norwood v. Brennan, 891 F.2d

179, 182 (7th Cir. 1989). As other circuits have found

before us, petitioners are not entitled to a writ of habeas

corpus on this basis.

Conclusion

For the reasons stated above, we AFFIRM the district

court’s denial of a writ of habeas corpus. We GRANT

petitioners’ motion to substitute counsel and to file a

substitute reply brief. We DENY their renewed request for

App. 17

oral argument. Any other outstanding motions are DE-

NIED as moot. The mandate shall issue forthwith.

App. 18

RAYMOND L. BLEDSOE, BILLY E. DACUS, and

MARSHALL D. WILLIAMS, PETITIONERS, v.

UNITED STATES OF AMERICA, RESPONDENT.

CASE NO. 01-3168-RDR

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

2002 U.S. Dist. LEXIS 1515

January 29, 2002, Decided

COUNSEL: RAYMOND L BLEDSOE, Petitioner, Pro se,

Leavenworth, KS.

BILLY E DACUS, petitioner, Pro se, Leavenworth, KS.

MARSHALL D WILLIAMS, petitioner, Pro se, Leaven-

worth, KS.

For USA, respondent: Jackie A. Rapstine, Office of United

States Attorney, Topeka, KS.

JUDGES: CATHERINE A. WALTER, U.S. Magistrate

Judge.

OPINION BY: CATHERINE A. WALTER

OPINION: REPORT AND RECOMMENDATION The

court has referred this matter to the undersigned United

States Magistrate Judge for report and recommendation

on a petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241. Petitioners, prisoners confined at USP-

Leavenworth, Leavenworth, Kansas, proceed pro se.

Petitioners argue that § 235(b)(3) of the Sentencing

Reform Act, as originally enacted, required the Commis-

sion to set a mandatory release date within the applicable

parole guidelines for each petitioner no later than October

31, 1992. By amending the law thirty-six days later to

App. 19

clarify that parole was to be calculated according to 18

U.S.C. § 4206, petitioners argue: 1) Congress deprived

them, without due process, of a vested liberty interest, 2)

the amendment is an impermissible ex post facto law, and

3) the amendment is an impermissible bill of attainder.

Petitioners also argue a conflict of interest between the

financial and personal interests of the employees of the

Commission and the interests of petitioners violates their

due process rights.

PROCEDURAL HISTORY

Petitioner, Raymond Bledsoe, was convicted of killing

a man because of his race and sentenced to life on May 4;

1983, in the United States District Court for the Western

District of Missouri. At his initial parole hearing on May 5,

1993, Bledsoe’s parole guidelines were calculated at 120-

plus months, more than 48 months above the minimum

guideline range. The United States Parole Commission

(Commission) set Mr. Bledsoe’s reconsideration hearing

for May 2008. At his statutory interim hearing on Septem-

ber 7, 1999, petitioner’s reconsideration hearing was

moved up to May 2007 because of positive institutional

adjustment.

Petitioner, Billy E. Dacus, was convicted of bank

robbery in the United States District Court for the North-

ern District of Texas and on January 13, 1983, he was

sentenced to 45 years. On February 14, 1994, Dacus’

parole guidelines were determined to be 166-plus months,

more than forty-eight months above the minimum guide-

line range. His reconsideration hearing was scheduled for

October 2008. Advancement of the reconsideration hearing

App. 20

will be considered at petitioner’s next statutory interim

hearing if he has continued positive adjustment.

Petitioner, Marshall D. Williams, was convicted in the

United States District Court for the Northern District of

Texas on December 12, 1984, of malicious destruction of

property by use of explosive bomb resulting in death,

possession of an unregistered firearm, and unlawful

construction of a firearm. Williams was sentenced to a

term of 109 years. At Mr. Williams’ initial parole hearing

on October 17, 1994, his parole guidelines were calculated

at 108-plus months, more than forty-eight months above

the minimum guideline range. His reconsideration hearing

was scheduled for October 2009. There has been no ad-

justment to this schedule since Williams’ most recent

statutory interim hearing on October 23, 2000.

Transferred from the United States District Court for

the District of Columbia, this action was filed in this court

on April 30, 2001 (Doc. 1). Respondent filed a pleading

opposing the petition for writ of habeas corpus on August

27, 2001 (Doc. 45). Petitioners filed a traverse on Septem-

ber 24, 2001 (Doc. 46) and a supplement on October 10,

2001 (Doc. 47).

DISCUSSION

The Sentencing Reform Act of 1984 (“SRA”) abolished

the Parole Commission and repealed federal parole stat-

utes. Pub. L. No. 98-473, Title II, ch. II, 98 Stat. 1987,

2017-2034 (codified as amended at 18 U.S.C. § 3551-3742

(1994)). In their place, the SRA set up a determinate

sentencing scheme utilizing sentencing guidelines. Id. The

SRA became effective on November 1, 1987. Lewis uv.

Martin, 880 F.2d 288, 290 (10th Cir. 1989).

App. 21

In order to process prisoners convicted under the old

parole system (including petitioners), the life of the Com-

mission was originally extended to five years beyond the

effective date of SRA. See 98 Stat. at 2027, 2032,

§ 218(a)(5), § 235(b)(1)(A). Congress has continued to

extend the life of the Commission and it is now scheduled

to expire on October 31, 2002. See Pub. L. No. 101-650,

Title III, § 316, 104 Stat. 5089, 5115 (extension to ten

years); Pub. L. No. 104-232, § 2(a), 110 Stat. 3055 (exten-

sion to fifteen years).

When the SRA was originally enacted, § 235(b)(3)

instructed the Commission to set a release date for prison-

ers before the expiration of the Commission (originally set

for November 1, 1992) and “within the range that applies

to the prisoner under the applicable parole guideline.”

Pub. L. No. 98-473, § 235(b)(3), 98 Stat. 2032 (1984). Just

thirty-six days after the SRA became effective, § 235(b)(3)

was amended to clarify that release dates were to be set

under 18 U.S.C. § 4206, the parole statute in effect when

petitioners were convicted and sentenced. See SRA, Pub.

L. 100-182, § 2(b)(2), 101 Stat. 1266 (1987) (1987 amend-

ment). Section 4206 “permits release dates [to be set]

outside the guideline range.” Lewis, 880 F.2d at 290.

Petitioners’ argument that the original act created a

vested right to a release date within the parole guidelines,

protected by due process, is without merit. In Lewis, 880

F.2d at 290, the Tenth Circuit determined that the original

act did not give prisoners sentenced prior to the effective

date of the SRA a right to be released within the guideline

range. When all three of the petitioners were sentenced,

18 U.S.C. § 4206 allowed for release dates outside the

guideline range if good cause was shown. The SRA did not

change this because Congress intended preexisting law to

App. 22

apply to those prisoners sentenced under the old parole

system. See Romano v. Luther, 816 F.2d 832, 838 (5th Cir.

1987), citing Senate Report at 188-89, reprinted in 1984

U.S. Code Cong. & Admin. News 3182, 3371-72 (“preexist-

ing law will apply as to all substantive matters including

the imposable sentence” and “the parole and good time

statutes will remain in effect as to any prisoner sentenced

before the sentencing guidelines”).

Petitioners also argue that the application of the

amended SRA is a violation of the ex post facto clause. In

the context of sentencing, the ex post facto clause is vio-

lated when a law imposes a greater punishment than the

punishment in existence when the offense was committed.

United States v. Gerber, 24 F.3d 93, 96 (10th Cir. 1994).

Both the amended SRA and 18 U.S.C. § 4206, the law in

effect when petitioners were convicted and sentenced,’

allow for release dates beyond the guideline range. Be-

cause there is no increase in punishment to petitioners,

there is no ex post facto violation. Lightsey v. Kastner, 846

F.2d 329, 334 (5th Cir. 1988).

Petitioners also argue amended § 253(b)(3) is an

unconstitutional bill of attainder. A bill of attainder is a

law which “legislatively determines guilt and inflicts

punishment upon an identifiable individual without

provision of the protections of a judicial trial.” Nixon v.

Administrator of Gen. Servs., 433 U.S. 425, 468, 53 L. Ed.

* Section 4206 became effective in 1976. Petitioner Bledsoe

committed his crime in 1980 and petitioner Dacus committed his crime

between 1981 and 1982. Although it is not clear from the record exactly

when petitioner Williams committed his crime, he was convicted in

1984. This court will assume that he committed his crime sometime

between 1976 and 1984.

App. 23

2d 867, 97 S. Ct. 2777 (1977). The amended SRA does not

single out any identifiable group of individuals and, as

discussed earlier, it does not inflict any additional pun-

ishment upon petitioners. U.S. v. Dorlouis, 107 F.3d 248,

257 (4th Cir. 1997). Therefore, it is not a bill of attainder.

Id.

Petitioners’ final argument is that their due process

rights have been violated because there is a conflict of

interest between the interests of Commission employees

and the interests of potential parolees. Petitioners assert

that members of the Commission have intentionally built

up a pool of unreleased prisoners in order to ensure their

continued employment and delay the statutory abolish-

ment of the Commission. Although prisoners are entitled

to impartial decision makers, White v. Indiana Parole Bd.,

266 F.3d 759, 767 (7th Cir. 2001), petitioners’ assertions of

systemwide bias must fail because the alleged biasing

influences are “too remote and insubstantial to violate due

process”, Fero v. Kerby, 39 F.3d 1462, 1478 (10th Cir.

1994).

RECOMMENDATION

IT IS, THEREFORE, RESPECTFULLY RECOM-

MENDED that the petition for a writ of habeas corpus be

dismissed and all requested relief be denied.

Any party objecting to the recommended disposition

may serve and file with the clerk of the district court

written objections within 10 days of service of this

App. 24

Report and Recommendation.’ Any objection filed must

specify the parts of the Report and Recommendation to

which objections are made, and set forth the basis for such

objections. See Fed.R.Civ.P. 72. Failure to file timely

objections waives appellate review of both factual and

legal questions. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d

435, 106 S. Ct. 466 (1985); Soliz v. Chater, 82 F.3d 373, 375

(10th Cir. 1996).

A copy of this Report and Recommendation shall be

mailed to petitioner and counsel of record.

The filing of this Report and Recommendation termi-

nates the referral of this case to the undersigned.

Dated this 29 day of January, 2002, at Topeka, Kan-

sas. |

CATHERINE A. WALTER

U.S. Magistrate Judge

* Any objections should be presented in a pleading entitled

“Objections to Report and Recommendation” and filed with the clerk.

App. 25

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RAYMOND L. BLEDSOE;

BILLY E. DACUS;

MARSHALL E. WILLIAMS, -

Petitioners-Appellants, No. 03-3224

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

ORDER

Filed December 3, 2004

Before TACHA, Chief Judge, MURPHY, Circuit Judge,

and CAUTHRON,’ Chief District Judge.

This matter is before the court or appellants’ petition

for rehearing with suggestion for rehearing en banc.

The materials submitted by appellants and appellee

have been reviewed by the members of the hearing panel,

who conclude that the original disposition was correct.

Accordingly, the petition is denied on the merits.

* The Honorable Robin J. Cauthron, Chief District Judge, United

States District Court for the Western District of Oklahoma, sitting by

designation.

App. 26 i

The petition having been denied on the merits by the

panel to which the case was submitted, the suggestion for

rehearing en banc was transmitted to all the judges of the

court in regular active service in accordance with Rule

35(b) of the Federal Rules of Appellate Procedure. No

member of the hearing panel and no judge in regular

active service on the court having requested that the court

be polled on rehearing en banc, Rule 35, Federal Rules of

Appellate Procedure, the suggestion for rehearing en banc

is denied.

Appellants’ motion to file their reply brief is

GRANTED. Appellants’ petition for rehearing with sug-

gestion for rehearing en banc is DENIED. Any other

pending motion in this case is DENIED.

Entered for the Court

PATRICK FISHER, Clerk

By /s/ Steve Larson

Deputy Clerk

ee