Petition for Writ of Certiorari — Branch v. Nix
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Supreme Court of the Gnited States
MARGARET F. BRANCH; RANDALL MANGOLD;
CONNIE R. BRACKET,
Petitioners,
Vv.
MILTON E. NIX, JR.; GARFIELD HAMMONS, JR.;
BETTY ANN COOK; EUGENE P. WALKER;
J. MICHAEL LIGHT; JOE FERRERO,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
MCNEILL STOKES
1040 Peachtree Battle Avenue
Atlanta, Georgia 30327
Telephone: (404) 352-2144
Facsimile: (404) 367-0353
Attorney for Petitioners
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
QUESTIONS PRESENTED FOR REVIEW
1. Does Ex Post Facto prohibit members of the Georgia
parole agency from enforcing an unpublished ninety percent
to serve policy foreclosing Petitioners from consideration for
release on parole before serving de facto ninety percent of
their sentences and without fair legal substantially increasing
their sentences to serve beyond their likely release on parole
in accordance with the enacted parole laws in effect at the
time of commission of their offenses after serving one-third
of their judicial sentences and the months to serve calculated
under statutorily mandated Parole Decision Guidelines?
2. Does the retroactive application of an unpublished ninety
percent to serve policy by the Georgia parole agency that
substantially extends sentences to serve beyond the enacted
parole laws and Parole Decision Guidelines without fair
legal warning also violate Due Process?
11
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ...........0...0.5. i
TABLE OF CONTENT. 52.7.2 eae ii
TABLE OF AUSTEOOURITOBR 5.065000 acesyesoncst assem v
OPINIONS BLOW. 05.5... 0,22 ce arena
JURISDICTION... ....... icc ane |
CONSTITUTIONAL AND STATUTORY |
PROVISIONS INVOLVED. ..............00000000000 2
STATEMENT OF THE CASE. .............cscescscersnenssoass: 3
REASONS FOR GRANTING THE PETITION ............... 5
I. THE APPLICATION OF THE NINETY
PERCENT TO SERVE POLICY TO |
SUBSTANTIALLY EXTEND THE |
DURATION OF THE SENTENCES TO |
SERVE OF PETITIONERS VIOLATES EX
POST FACTO PROHIBITIONS WITH
NO PRIOR FAIR LEGAL WARNING OF
THE INCREASED PUNISHMENT OVER
EXISTING PAROLE LAWS AND
CATR III os 2h cae crea ce cena diva iocaas 7
II. INCREASING SENTENCES TO SERVE OF
PETITIONERS WITHOUT FAIR LEGAL
WARNING ALSO VIOLATES DUE PROCESS...15
COINCLUTSINIIN «oasis sclera 20
iil
TABLE OF AUTHORITIES
CASES
Calder v. Bell, 3 Dall 386 (1796).......20.200200sccccccocccscesnss 8
California Dept. of Corrections v. Morales,
iit Fo |, .) re 7, 9, 11, 12, 15, 19
Dobbert v. Flordia, 432 U.S. 282 (1977).................:.0++ 8
Garner v. Florida, 430 U.S. 349 (1976). ................. 245+. 18
Garner v. Jones, 529 U.S. 244 (2002).....7, 10, 11, 12, 15, 19
Hamm vy. Latessa, 72 F.3d 947, 957 (ist Cir.1995)............ 6
Jackson v. State Board of Pardons and Paroles,
Civil Action No. 2:01-CV-068-WCO
SN, MIR dn cas con scknen dcdversenccasens’ 4,8, 9, 12,17
Jones v. Georgia State Board of Pardons and Paroles,
59 F3d 1145, 1149(11™ Cir. 1995)... 2.00... eee 12
Knuck v. Wainwright, 759 F. 2d 856 (11" Cir. 1985)........ 12
Kring v. Missouri, 107 U.S. 221 (1883).....................000 8
Love v. Fitzharris, 460 F2d 382 (9" Cir. 1972.............. 6, 10
Mickens-Thomas v. Vaughn, 321 F. 3d 374
EI, IE wi ive sanasesscsecsentbccressindacnsinnsannss 6, 12
Miller v. Florida, 482 U.S. 423 (1987)....................2005 12
Rooney v. North Dakota, 196 U.S. 319 (1905)................. 9
Sandin v. Conner, 515 U.S. 472 (1995).................19
Spencer v. Kemna, 523 U.S. 1 (1998)............---:e2+-+++-10
Sultenfuss v. Snow, 35 F. 3d 1494 (11™ Cir. 1994)........... 19
United States, ex rel.Graham v. United States Parole
Comm’n, 629 F. 2d 1040 (5™ Cir. 1980).................. 6
Warden v. Marrero, 417 U.S. 653 (1974)... ......... 20.22... 6+ 9
Warren v. Baskerville, 233 F.3d 204, (4th Cir.2000)...........6
Weaver v. Graham, 450 U.S. 24 (1981)..................5. 8,18
1V
STATUTES
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42 U.S.C. § 1983.. sida dk-ab oaks verisdteibaalaciamebsiatenancaaa
OCGA. § 10-10-61. HEn ide sna Cacia semana eeendon vans ide anaae - 13
RE es gk lacn nas iaakcdutskvvacutacad 3, 10, 17, 20
OG.CA SNE Ack dhedaadecbacaurubiecs ann ins shamipeainants in 3
ot FT ESE rne TM Ae
Ns MER nods sus psdcles adudemandaanduxecnnennan dad aaa 18
Se ae Ie, OI 5 hay cannatucux tub vabeduacsceres 17
EE ua Sin biu dpikcnaintokcncpeseckaannatedinenaenion 17
a a. ee N wncivasecccavesssavecnsnionseed 3, 13, 14
Opinion of Attorney General No. 71-158...............0.2.... 17
OPINIONS BELOW
The denial of Petition for Rehearing and Petition for
Rehearing En Banc of the United States Court of Appeals for
the Eleventh Circuit, November 30, 2004, is set forth in
the Appendix at A-1. The opinion of the United States Court
of Appeals for the Eleventh Circuit, July 22, 2004, affirming
the granting of summary Judgment and dismissing Petitioners’
action is set forth in the Appendix at A-3. The Order of the
United States District Court for the Northern District of
Georgia, December 3, 2003, granting the Respondents’
motion for summary judgment and dismissing Petitioners’
action is set forth in the Appendix at A -10. The order of the
United States District Court for the Northern District of
Georgia, May 29, 2002, in Jackson v. State Board of Pardons
and Paroles, Civil Action No. 2:01-CV-068-WCO (N.D. Ga.
2002) holding the retroactive extending of sentences to serve
by the Georgia parole agency in violation of Ex Post Facto
protections of the United States Constitution is set forth in the
Appendix at A-18.
JURISDICTION
The final judgment of the United States Court of
Appeals for the Eleventh Circuit was rendered on November
30, 2004. The Statutory provision conferring jurisdiction on
the Supreme Court of the United States to review ona Writ of
Certiorari is 28 U.S.C. § 1254.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
ARTICLE I. SECTION 9. No..'ex post facto Law shall be
passed.
ARTICLE I. SECTION 10. No State... shall pass any...ex
post facto Law...
AMENDMENT V. No person shall be held to answer ... nor
be deprived of life, liberty, or property without due process of
law;
AMENDMENT XIV. SECTION I. ...nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny any person within its jurisdiction the
equal protection of the laws.
42 U.S.C. § 1983. Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. ..
STATEMENT OF THE CASE
The statutory parole laws in Georgia provide for
eligibility for parole after serving one-third of judicial
sentences pursuant to O.C.G.A. § 42-9-45 (b) and the months
to serve calculated according to the Parole Decision
Guidelines pursuant to mandate of O.C.G.A. § 42-9-40 (a).
The statutorily parole laws provide for denial of release on an
objective determination on an individual basis that an
inmate’s release on parole would not be compatible with the
inmate’s own welfare or the welfare of society pursuant to
O.G.C.A. § 42-9-42 (c). After a legislative attempt failed to
enact a requirement that all violent offenders serve their entire
sentences, in order to satisfy the 85% of judicial sentences to |
serve requirement of the Violent Offenders Incarceration —
Truth In Sentencing Act (““VOITIS”), 42 U.S.C. § 13704, ef
seq. to qualify for federal grant funds to build new prisons, the
Georgia State Board of Pardons and Paroles (“Board”)
adopted an unpublished resolution that ail inmates in twenty
violent and residential burglary offender categories must serve
ninety percent of their sentences.
The sentencing laws in Georgia provide for very long
sentences which are substantially longer than most states
sentencing laws and guidelines because the statutory parole
laws contemplate that deserving inmates will be released after
serving one-third of their judicial sentences or the months to
serve calculated under the Parole Decision Guidelines. Rather
than reducing the sentencing periods as other states did in
order to comply with the 85% requirement for funding
pursuant to VOITIS, Georgia went the other way and required
that inmates in seven most serious violent offender categories
serve mandatory sentences without parole enacting O.C.G.A.
§ 10-10-6.1, but when a similar legislative attempt failed to
increase sentences to serve for other violent felonies, the
Board adopted and retroactively implemented an unpublished
“policy” that all offenders in twenty other violent offense and
residential burglary categories must serve ninety percent of
their judicial sentences before being eligible for release on
parole.
This unpublished policy had an unpublished “effective
date” of January 1, 1998, but the Board slavishly applied the
ninety percent to serve policy retroactively to inmates whose
offenses were prior to January 1, 1998 as well as
prospectively to inmates whose offenses after that date to
foreclose any parole until the inmates in the listed categones
had served ninety percent of their sentences. On May 29,
2002 Judge William C. O’Kelley in Coleman Jackson v. State
Board of Pardons and Paroles, United States District Court
for the Northern District of Georgia, Civil No. 2:01-CV-068-
WCO, held unconstitutional in violation of Ex Post Facto the
retroactive application of the unpublished policy of the Board
which substantially extended Georgia inmates’ sentences to
serve to at least ninety percent of their judicial sentences. (A-
41). The Board did not appeal Judge O’Kelley’s Order
holding the retroactive application of the ninety percent to
serve policy unconstitutional.
Petitioners whose offenses were after the unpublished
“effective date” have had their sentences to serve substantially
extended by the Board’s ninety percent sentences to serve
policy. The Petitioners have been de facto foreclosed from
any consideration for parole and have continued to be illegally
and unconstitutionally incarcerated in violation of Ex Post
Facto and Due Process without fair legal notice beyond the
time that they should have been released on parole under the
enacted parole laws and the Parole Decision Guidelines in
effect at the time of commission of their offenses. The
testimony in Coleman Jackson v. State Board of Pardons and
Paroles, supra, established that: “The staff of the Board
automaticaliy applied the ninety percent to serve rule to 8,664
cases from January 1, 1998 through June 30, 2001 and except
for ten special prosecutorial deals, all inmates in the twenty
categories were foreclosed from being considered for parole
until they had served the ninety percent threshold.” (A-36).
The Board’s representative reaffirmed that of “at least” ten
thousand inmates who have been put under the ninety, percent
to serve policy committing offenses after January 1, 1998 only
eighteen had been paroled before serving ninety percent of
their sentence and these most often involved prosecution
deals. (Sullivan deposition, p-16).
The Petitioners, who are first time offenders with
“excellent” Parole Success ~ Likelihood Scores and no
contention that their release would not be compatible with the
welfare of society, have been and are continuing to be
completely foreclosed from parole because the Respondents
as members of the Board adopted and are continuing to
slavishly follow a de facto ninety percent extended sentences
to serve policy which has the effect of almost tripling their
sentences to serve without any fair legal warning.
REASONS FOR GRANTING THE PETITION
The fundamental graveman is that the Respondents as
members of ‘the Georgia parole agency are violating
protections of Ex Post Facto and Due Process by adopting and
enforcing an unpublished ninety percent to serve policy
thereby substantially extending sentences to serve to de facto
ninety percent of judicial sentences before consideration for
parole of the Petitioners as well as all inmates in twenty
offense categories and without fair legal warning applying this
unpublished policy to significantly increase the sentences to
serve of Petitioners beyond their likely release on parole
pursuant to the enacted parole laws providing for their likely
release on parole after serving the statutory one-third
threshold of their judicial sentences and the months to serve
calculated pursuant to the statutory mandated Parole Decision
Guidelines
There is a conflict in the Circuits as to whether the
existing parole laws attach at the time of commission of an
offense and whether existing parole laws can be subsequently
modified to offenders’ detriment by policy or otherwise in
violation of Ex Post Facto prohibitions. The Eleventh Circuit
has ruled in the underlying case that the enacted parole laws
existing at the time of commission of an offense can be
modified by unpublished changes in policy of the Georgia
parole agency. The Fourth Circuit in Warren v. Baskerville,
233 F.3d 204, 208 (4th Cir.2000) has held that a retroactive
parole "policy" change "did not for ex post facto purposes
have the force and effect of law."
The Third Circuit in Mickens-Thomas v. Vaughn, 321
F. 3d 374, 386 (3™ Cir. 2003) ruled the opposite that a parole
agency must rely on the parole laws in place at the time of
commission of the offender’s crime and that new policies
being applied against the offender's interest violate Ex Post
Facto. The First Circuit in Hamm v. Latessa, 72 F.3d 947, 957
{1st Cir.1995) held that a retroactively applicable parole
policy would constitute a "law" within the meaning of the Ex
Post Facto Clause if it "possess[ed] the full force and effect of
law...." The Fifth Circuit in United States ex rel. Graham vy.
United States Parole Comm'n, 629 F.2d 1040, 1043 (Sth
Cir.1980) instructed that any "official post-sentence action
that delays eligibility for supervised release runs afoul of the
ex post facto proscription." The Ninth Circuit in Love v,
- Fitzharris, 460 F.2d 383, 385 (9th Cir.1972) ruled that a
parole board's retroactive interpretation of a parole eligibility
provision was subject to Ex Post Facto constraints because the
interpretation had the effect of law.
This Petition for Writ of Certiorari involves an
important federal question which should be decided by the
United States Supreme Court as to whether an unpublished
policy of a state parole agency can without fair legal warning
substantially increase the threshold for consideration and
release on parole of Petitioners violates Ex Post Facto and
Due Process protections of the United States Constitution.
I. THE APPLICATION OF THE NINETY PERCENT
TO SERVE POLICY TO SUBSTANTIALLY EXTEND
THE DURATION OF THE SENTENCES TO SERVE OF.
PETITIONERS VIOLATES EX POST FACTO
PROHIBITIONS WITH NO PRIOR FAIR LEGAL
WARNING OF THE INCREASED PUNISHMENT
OVER EXISTING PAROLE LAWS AND GUIDELINES
The precedents of the United States Supreme Court in
the cases of Garner v. Jones, 529 U.S. 244 (2000) and
California Department of Corrections v. Morales, 514 U.S.
499 (1995) hold that retroactive actions relating to parole
violate the Ex Post Facto prohibitions of the United States
Constitution when the practical result of implementation of
actions by a parole agency creates.a significant risk of
prolonging an inmate’s incarceration. In both of these cases
the United States Supreme Court ruled that a procedural
change in the frequency of review for inmates serving life
sentences did not necessarily violate the Ex Post Facto
prohibitions. But relevant to the instant case in both of these
cases the United States Supreme Court instructed that parole
actions which retroactively increase the likelihood or
sufficient risk of prolonging inmates’ incarcerations would
violate the Ex Post Facto prohibitions of the United States
Constitution. It is patently obvious that the actions of the
Georgia Board in applying-the de facto ninety percent to serve
policy to every inmates’ existing sentence to serve
significantly increasing the duration of their sentence to serve
beyond the statutory parole thresholds for release on parole is
retroactively increasing their punishment in violation of Ex
Post Facto prohibitions.
This was the holding of United States District Court
Judge O’Kelley in Coleman Jackson vy. State Board of
Pardons and Paroles, United State District Court for the
Northern District of Georgia, Civil Action No. 2:01-CV-068-
WCO (2002) which applied to the individual case of Coleman
Jackson and he found that it was not necessary for this
—————
“policy” to be a law or regulation, only that its “practical
implementation” produces a “sufficient risk” of retroactively
lengthening the inmate’s period of incarceration. (A-30). The
Respondents as members of the Board did not appeal Judge
O’Kelley’s Order and are now estopped to deny that the
retroactive application of the ninety percent to serve policy
does not violate the Ex Post Facto prohibitions of the United
States Constitution.
The Eleventh Circuit decision stated that “the sine qua
non of an ex post facto law is retrospective effect or
application” (A-7), but more fundamentally Ex Post Facto |
protection is based on the lack of fair notice of extended
governmental restraint increasing an inmate’s punishment
beyond that proscribed at the time the offense was committed.
In Weaver v. Graham, 450 U.S. 24, 28 (1981) the United
States Supreme Court developed the historical fair warning
doctrine reasoning for the prohibition of Ex Post Facto:
“Through this prohibition, the Framers sought to assure that
legislative Acts give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed.”
(Emphasis supplied). Citing Dobbert v. Florida, 432 U.S.
282,298 (1977); Kring v. Missouri, 107 U.S. 221, 229 (1883);
Calder v. Bull, 3 Dall 386, 387 (1798). The Court then went
on to instruct:
“Critical to relief under the Ex Post Facto
Clause is not an individual’s right to less
punishment, but the lack of fair notice and
government restrain when the -legislature
increases punishment beyond what was
prescribed when the crime was consummated.
Thus, even if a statute merely alters penal
provisions accorded by the grace of the
legislature, it violates the Clause if it is both
retrospective and more onerous than the law in
effect on the date of the offense.” Jd at 30.
The Supreme Court then spoke to exactly what the
Georgia Board has attempted to do in foreclosing the
Petitioners’ and other similarly situated inmates’ statutory
right to consideration for parole after serving one-third of
their judicial sentences or the months to serve calculated
under the Parole Decision Guidelines and to make continued
incarceration mandatory that they serve at least ninety percent
of their judicial sentences:
“Even when the sentence is not at issue, a law
may be retrospective not only if is alters the
length of the sentence, but also if it changes the
maximum sentence from discretionary to
mandatory.” /d at 32.
In Warden, Lewisburg Penitentiary v. Marrero, 417
U.S. 653, 663 (1974) the Supreme Court observed that “a
repealer of parole eligibility previously available to
imprisoned offenders would clearly present the serious
question under the Ex Post Facto clause (citations omitted) of
whether it imposed a ‘greater or more severe punishment than
was prescribed by law at the time of the ...offense.” Quoting
Rooney v. North Dakota, 196 U.S. 319, 325 (1905). Judge
O’Kelley in Coleman Jackson v. State Board of Pardons and
Paroles, supra, after quoting the above from Marreno, pointed
out, “That same Supreme Court cited with approval, a
decision of the United States Court of Appeals for the Ninth
circuit holding that “under California law, a convicted
person’s eligibility for parole consideration (as opposed to
parole) is part of the ‘law annexed to the crime when
committed’... and any legislative change in such eligibility
which would work to a prisoner’s disadvantage may not be
retroactively applied.” Citing Love v. Fitzharris, 460 F2d 382,
383 (9 Cir. 1972), vacated on other grounds, 409 U.S. 110
(1973). (A-29-30).
Garner v. Jones, supra at 256, instructs that the
practical implementation of discretion by a parole agency will
violate Ex Post Facto if its actions create a “significant risk of
increased punishment.” It is not only a significant risk, but an
absolute certainty that the Petitioners will serve a very
substantial increased punishment because of the retroactive
application of the unpublished ninety percent to serve policy
to extend Petitioners’ sentences to serve beyond the published
parole laws and Parole Decision Guidelines in effect at the
time commission of their offences and beyond which the
Petitioners would have had no public legal notice of the
increased punishment.
The Petitioners have been unconstitutionally
incarcerated beyond when they likely would have been
released on parole on their calculated Temporary Parole
Month which Judge O’Kelley found was a likely parole date
under the enacted parole laws and the Parole Decision
Guidelines in effect at the time of commission of their
offenses. (A-40). Every day that Petitioners are extended
beyond the time that they likely would have been released
beyond their sentences to serve under existing parole laws and
the Parole Decision Guidelines is a continuing constitutional
violation. Spencer v. Kemna, 523 U.S. 1, 7 (1998).
The legally controlling parole laws contained in
O.C.G.A. §§ 42-9-45 and 42-9-40 are the existing laws
dictating that inmates are to be eligible for release on parole
after serving one-third of their judicial sentences or the
months to serve calculated under the Parole Decision
Guidelines. When the Defendants as members of Board in
each inmate’s case applies the unpublished ninety percent
policy to override the existing parole laws affecting the length
of an inmate’s sentence to serve effectively foreclosing
consideration for parole, they are practically changing the
existing parole laws retroactively to the Petitioners offenses
without previous legal notice after the commission of the
offense to effect an increase the inmate’s punishment beyond
the enacted parole laws and published regulations in effect at
the time of commission of the offense.
10
The teachings of Garner and Morales are that the
“practical implementation” (514 U.S. at 509) has the “effect”
(529 U.S. at 255) of retroactively increasing their punishment.
This “sufficient risk” of increasing an inmate’s punishment
arises to a certainty under the Respondents’ de facto ninety
percent to serve policy that the Petitioners will have to serve
almost triple their sentences to serve than under the enacted
parole laws and the Parole Decision Guidelines.
The parole laws in legal effect at the time of
commission of the alleged offenses of each Petitioner were
and still do provide for consideration for parole after serving
one-third of their judicial sentences or the months to serve
calculated under the Parole Decision Guidelines. The practical
implementation of the unpublished ninety percent to serve
policy has the effect of substantially increasing the
Petitioners’ and over ten thousand other similarly situated
inmates’ punishment after they committed their offenses and
after their judicial sentences by retroactively applying this
unpublished policy of which there is no prior fair legal notice
in violation of Ex Post Facto protections of the United States
Constitution.
It is one thing for the Board to exercise discretion in
granting or denying an individual parole based on
incompatibility with their own welfare pr the welfare of
society under the express grant of O.C.G.A. §. 42-9-45(c) of
which there is no contention as to the Petitioners. It is another
to completely foreclose the Petitioners from even the
consideration for parole as an entire classes of inmates
contrary to the controlling parole laws and_ published
guidelines under the guise of discretion as an excuse for
violation Ex Post Facto protections of the United States
Constitution. The Eleventh Circuit in Knuck v. Wainwright,
759 F. 2d 856 (11™ Cir. 1985) had previously held the
extending of inmates sentences to serve in violation of Ex
Post Facto when the gain time for good behavior was
1]
eliminated. The Third Circuit in Mickens-Thomas v. Vaughn,
321 F. 3d 374 (3d Cir. 2003) recently held that a change in
discretionary parole policies governing early release by the
Pennsylvania Parole Board violated Ex Post Facto,
reaffirming that “The presence of discretion does not displace
the protections of the Ex Post Facto clause.” Citing Garner,
529 U.S. at 353. 321 F. 3d 374, 386. The Third Circuit in
Mickens-Thomas squarely ruled on the same issue in the
instant case that a parole agency must rely on the parole laws
in place at the time of commission of the offense.
Garner v. Jones, supra, and California Department of
Corrections v. Morales, supra, hold the practical result of
implementation of actions by a parole agency which creates a
significant risk of prolonging an inmate’s incarceration
violates Ex Post Facto. As Judge O’Kelley found quoting
from these precedent cases that “‘through evidence drawn
from the rule’s practical implementation by the agency
charged with exercising discretion, that its retroactive
application will result in a longer period of incarceration than
(he would have received) under the earlier rule.” Garner 529
U.S. 252,at 255. To make such a showing the inmate need not
prove ‘that he definitely would have served a lesser sentence
under the previous legal regime,’ Jones v. Georgia State
Board of Pardons and Paroles, 59 F3d 1145, 1149(11™ Cir.
1995) (citing Miller v. Florida, 482 U.S. 423, 432 (1987),
only that the challenged procedure creates a ‘sufficient risk’
of doing so. Morales, 514 U.S. 499, 509.” (A-29-30).
It is a mathematical certainty that this unpublished
policy change increases the likelihood and the sufficient risk
that the Petitioners’ and all other similar situated inmates’
extended sentences to serve will be increased at least from the
statutory one-third threshold or the months to serve calculated
under the parole decision guidelines to a de facto minimum of
ninety percent of judicial sentences to serve. After review of
the statistical evidence Judge O’Kelley analyzed that “the
Board deviated below the 90% threshold in exactly 10 cases
12
out of 8,664. (A). “Because each of those cases involved
highly unusual circumstances, however, the number of
downward deviations really amounts to zero” and the previous
District Court decision found that “the 90% time-served
policy serves as an inflexible benchmark below which the
Board almost never deviates.” (A-36). Judge O’Kelley also
found that previous to the implementation of the ninety
percent to serve policy that the Petitioner Coleman Jackson
would likely have been paroled in accordance with the
Tentative Parole Month calculated under the Parole Decision
Guidelines. (A-40).
The unpublished ninety percent to serve policy was
adopted in part for the ostensibly political reason recited in the
Resolution to “make Georgia the toughest state in the nation
for ‘time served’ for violent felonies and_ residential
burglaries.” However, the overriding economic motivation for
the Respondents’ adoption of the ninety percent to serve
policy was the fact that the State of Georgia had applied for to
become the recipient of very substantial federal grant funds to
build new prisons under the Violent Offenders Incarceration -
Truth in Sentencing Act (“VOITIS”), 42 U.S.C. § 13704, ef
seq. This Act required that the average time to serve of
judicial sentences must be at least 85% for a substantially
similar list of violent offenses to the Boards’ ninety percent to
serve policy in order to qualify for the grant funds to build
prisons. Specifically, the grant guidelines pursuant to 42
U.S.C. § 13704 (a) (1) require that to be eligible to receive the
grant funds to build prisons that within three years:
“(A) (i) such State has implemented truth in
sentencing laws that require persons convicted
of a part I violent crime to serve not less than
85 percent of the sentence imposed. ..(C)(ii)
persons convicted of a part I violent crime on
average serve not less than 85% of the
maximum prison term allowed under the
sentence imposed by the court.”
13
In order to qualify for VOITIS grant funds two
legislative Bills had been introduced for passage in the
Georgia legislature: one which was enacted as O.C.G.A. § 10-
10-6.1 requiring that offenders convicted of the seven most
serious violent offense categories serve one hundred percent
of their sentences, and another, S.B. 100 (1997), which was
defeated required that other violent felons serve the extended
time of their sentences. After the legislative attempt failed to
enact the extended time to serve law for the other violent
offense categories, Georgia turned to the Respondent
members of the Board to adopt the ninety percent to serve
policy having the practical force of law since they exercise
exclusive control of parole eligibility. Georgia specifically
spotlighted and cited to the Board’s ninety percent to serve
policy in its VOITIS application for federal grant funds. The
Georgia “1998 Application for Violent Offenders
Incarceration and Truth in Sentencing Incentive Grant”
evidences that the ninety percent to serve policy was adopted
to qualify for VOITIS grant funds. This Georgia application
explains in bold type the Board’s extended time to serve
“policy” changes that were in effect tantamount to law in
order for Georgia to be eligible for grant funds that: “The new
policy makes it mandatory that these violent offenders serve
90% of their court imposed sentence prior to consideration of
parole.” A 1998 Supplemental Application even attaches a
State Board of Pardons and Paroles’ news release and
explanation of the Board’s “Amended Policy for the Parole of
Violent Offenders” in order to quality for tier two VOITIS
grant funds. Georgia was then successful and did receive
funds through FY 2000 for a total of $82,236,509 received
from the federal government under VOITIS.
Regardless of motive, the operative facts are that
Petitioners’ sentences to serve have been extended beyond the
parole laws and the Parole Decision Guidelines by the ninety
percent to serve policy of which Petitioners would not have
public knowledge of this secret law, and Petitioners’
sentences to serve have been almost tripled by the subsequent
14
|
imposition of the unpublished Board policy retroactively
applied, after they committed their offenses, in gross violation
of Ex Post Facto as well as Due Process.
Thus the Faustian deal, motivated to receive VOITIS
grant funds, traded the freedom of the Petitioners and many,
many other inmates substantially extending their sentences to
serve de facto ninety percent in return for the receipt by
Georgia substantial federal grant funds to build new prisons. It
is constitutionally shocking that in order to receive VOITIS
federal grant funds, Georgia without any legal underpinnings
by unpublished policy fiat increased the parole threshold for
Petitioners’ sentences to serve from one-third to de facto
ninety percent of judicial sentences by the Respondents
administratively adopting an unpublished policy having the
practical force and effect of law that substantially and
retroactively extended Petitioners’ and similarly situated
inmates’ sentences to serve.
II. INCREASING SENTENCES TO SERVE OF
PETITIONERS WITHOUT FAIR LEGAL WARNING
ALSO VIOLATES DUE PROCESS
The unpublished ninety percent to serve Resolution has
the practical effect of a secret law of which the public has no
legal notice that is slavishly enforced by the staff of the Board
without any practical consideration by the Respondent Board
members in extending inmates sentences ninety percent to
serve before consideration for parole. (A-37). The offenses of
the Petitioners were committed after the unpublished “effective
date” of the ninety percent to serve policy, but the Ex Post
Facto effect on the Petitioners’ sentences is the same to extend
their time to serve without prior fair legal notice by this secret
policy which is applied retroactively to extend sentences to
serve after commission of their offenses. The application of the
unpublished ninety percent to serve policy violates Due
Process as well as Ex Post Facto protections by increasing
15
Petitioners’ and other similarly situated inmates’ sentences
substantially beyond the controlling parole laws and guidelines
in existence at the time of commission of their offenses and
which are still the existing laws and guidelines.
The District Court found that because the Board had
posted a news release on its web site that the Petitioners’
contention that “the 90% percent policy was ‘secret’ and
‘unpublished’ is without merit.” (A-16). The Eleventh Circuit
took a similar view that the news release gave fair notice of the
policy change. (A-8). However, both the District Court and the
Eleventh Circuit ignored the Georgia Administrative Procedure
Act requirements and the Georgia parole law requirements that
* any policy, rule, or regulation to be valid must be filed with the
Secretary of State and published under strict legal requirement
before it can have any- legal effect. The announcing of the
internally resolved ninety percent to serve policy in a news
release hardly comports to any legally authorized or civilized
system of legal notice of a substantive change having the
practical effect of law to almost triple sentences to serve to
increase the punishment of the Petitioners and other similarly
situated inmates who were entitled to legally rely on the
enacted parole laws and the Parole Decision Guidelines to
determine the length of sentences to serve.
The unpublished ninety percent to serve policy
internally “resolved” by the Board members cannot qualify as a
prospective rule or regulation. But most assuredly, the “policy”
slavishly and practically operates as a de facto law. The ninety
percent to serve policy cannot be a valid rule or regulation
since it was not enacted in accordance with the Georgia
Administrative Procedure Act or filed to be published with the
Georgia Secretary of State giving prospective legal notice to
the public. Nor could the “policy” be a change in the Parole
Decision Guidelines which also requires compliance with the
Georgia Administrative Procedure Act in accordance with the
requirements of O.CGA. § 42-9-40(b) or valid under
16
Ss
a a i lS age ai a el
O.C.G.A. § 42-9-45 (d). Neither could the policy be a valid
Board rule or regulation under O.C.G.A. § 42-9-46 (a) which
prohibits rules and regulations, “not inconsistent with this
chapter.”
The Eleventh Circuit decision misconstrues the
Petitioners’ purpose in arguing that the Board’s ninety percent
to serve policy did not comply with Georgia Administrative
Procedures Act. O.C.G.A. § 50-13-1, ef seg. which was to
demonstrate that the unpublished policy could not have any
legal force or effect of law as “any rule, regulation, resolution,
etc. by whatever named called” and “shall not be valid or
effective against any person or party nor may it be invoked by
the agency.” Opinion of Attorney General No. 71-158.
Implementing the unpublished ninety percent to serve policy to
override the enacted parole laws entitling Petitioners to
consideration for parole after serving one-third of their
sentences or the months to serve calculated under the Parole
Decision Guidelines violates the Due Process because the
unpublished policy cannot constitutionally comply with the
mandate of Due Process as well as Ex Post Facto that
“legislative Acts give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed.”
Weaver v. Graham, supra at 28.
Yet the unpublished de facto ninety percent to serve
policy is slavishly enforced as a de facto law and its effect on
the Petitioners and similar situated inmates is to practically
completely foreclose any opportunity for parole until they have
served a de facto ninety percent of their judicial sentences. It
gives no legal notice to the public, and is not a policy, rule or
regulation pursuant to which the Board may validly enforce
their de facto ninety percent to serve policy to extend the
duration of inmates’ sentences to serve in violation of the Ex
Post Facto and Due Process protections of the United States
Constitution. Judge O’Kelley found in Coleman Jackson that the
> “cc
enforcement of the ninety percent policy’s “application has the
force and effect of law.” (A-35). It is obvious that the
Respondents’ actions as members of the Board under color of
law in applying the de facto ninety percent to serve policy has
significantly increased the duration of the sentences to serve of
the Petitioners and similarly situated inmates beyond the
statutory parole thresholds which was and still is being
retroactively applied to substantially extend their :-carcerated
punishment in violation of fundamental protections of iair legal
warning.
Under the protective cloak of Due Process a criminal
defendant is entitled to fair notice of enhanced punishment.
Garner v. Florida, 430 U.S. 349 (1976). A defendant when
judicially sentenced is entitled to have applied the paroles laws
legally in effect at the time of the commission of the offense.
Secret law as always been an anathema to civilized society, but
that is exactly what is being enforced by the Respondents
practically having the force of law and extending the duration
of Petitioners’’ and other similarly situated inmates’ sentences
to serve. When the Board subsequently applies their
unpublished policy to subsequently extend a defendant’s
sentence to serve, it is a retroactive application of their
unpublished and slavishly enforced policy to increase a
defendant’s punishment in violation of the Due Process as well
as Ex Post Facto protections of the United State Constitution.
The Eleventh Circuit decision cited Sultenfuss v. Snow,
35 F. 3d 1494 (11™ Cir. 1994) as foreclosing Georgia inmates
from making liberty interest due process claims. (A -9).
However, Sultenfuss which was decided on the now overruled
search for mandatory state language test that in Sandin v.
Conner, 515 U.S. 472, 483 (1995) was abandoned by the
United States Supreme Court in favor of “real concerns under
girding the liberty interest protected by the Due Process
Clause.” Sultenfuss which is a due process case would not
apply to the substantial Ex Post Facto violations by the Georgia
Board nor is Sultenfuss still the law in light of the United States
Supreme Court’s subsequent and now controlling decisions of
18
Garner v. Jones, supra, California Department of Corrections
v. Morales, supra, and Sandin v. Conner, supra. The practical
realities test of Garner and Morales to determine a sufficient
risk of Ex Post Facto violation and the real concerns under
girding the liberty interest protected by the Due Process clause
announced in Sandin now determine protected liberty interests,
not the presence or absence of state mandatory language. The
United States Supreme Court has now held that the “Due
Process clause of its own force” may create a protected liberty
interest” (Sandin at 474) and that the practical realities of
creating a sufficient risk of retroactively increasing an inmate’s
punishment violate Ex Post Facto (Morales at 509 and Garner
at 255). Thus, the controlling United States Supreme Court law
has changed from Sultenfuss’ state mandatory language
analysis to now look to the practical realities of the state action
which the Georgia Board has retroactively created as a very
substantial and certain retroactive increase in the Petitioners’
and similarly situated inmates’ sentences to serve. The real
concerns of Due Process when viewed against the Ex Post
Facto practical realities of what the Georgia Board has done to
retroactively and substantially increase the sentences of
inmates without fair legal warning should at least recognize
their liberty interest not to have their Due Process and Ex Post
Facto rights continue to be egregiously violated.
The harsh facts alleged in the Complaint as well as
demonstrated with filed evidence and documents in the record
are that the Petitioners and similarly situated inmates have been
and still are being retroactively extended in their incarceration
by the Respondents’ following their de facto ninety percent to
serve policy of substantially extending sentences to serve by
almost triple the incarceration time to serve before being
eligible for release on parole substantially beyond the time that
they routinely would have been likely released on parole under
the parole laws in effect at the time of commission of their
offenses which are a one-third threshold for eligibility for
parole under O.C.G.A. § 42-9-45 and the time to serve
calculated under the Parole Decision Guidelines mandated
19
under O.C.G.A. § 42-9-40. The Petitioners’ eligibility for
parole has been and still is being administrative foreclosed and
their sentences substantially extended to the de facto ninety
percent to serve threshold without fair legal notice retroactively
overriding the existing parole laws and guidelines to
substantially extend the Petitioners’ and other similarly situated
inmates’ sentences to serve in violation of the Ex Post Facto
and Due Process protections of the United States Constitution.
CONCLUSION
The enormity of the of the constitutional injury is that
every day, every month, and every year Petitioners as well as
many, many thousands of other similarly situated inmates have
had their sentences to serve greatly extended and they have
been continued to be unconstitutionally incarcerated beyond
the time -that they should have been released on parole in
accordance with the enacted parole laws and _ statutorily
mandated guidelines but for the unconstitutional retroactive
actions of the Respondents adopting and enforcing an
overriding unpublished policy having the practical force and
effect of law without fair legal warning of increased
incarceration punishment. The Respondents have and are
continuing to perpetrate one of the most massive civil rights
abuses of recent times wherein more than ten thousand inmates
have had their sentences to serve retroactively almost tripled
and have been de facto foreclosed from parole under the
existing parole laws.
If the Respondents can by unpublished policy
practically change the legislatively enacted parole laws and
guidelines to increase Petitioners’ and similar inmates’
incarcerated punishment substantially extending sentences to
serve almost triple without fair legal warning and de facto
foreclose Petitioners from parole beyond the time that
Petitioners would likely have been released on parole in
accordance with the published parole laws, then important
checks and balances of the republic will have been lost.
20
“ip LEA Deby
LXYy Let dt We
tokes
McNeill
Attorney for Petitioners
1040 Peachtree Battle Ave.
Atlanta, Georgia 30327
Telephone: 404-352-2144
Facsimile: 404-367-0353
21
No.
In The
Supreme Court of the Anited States
MARGARET F. BRANCH; RANDALL MANGOLD;
CONNIE R. BRACKET,
Petitioners,
Vv.
MILTON E. NIX, JR.; GARFIELD HAMMONS, JR.;
BETTY ANN COOK; EUGENE P. WALKER;
J. MICHAEL LIGHT; JOE FERRERO,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
APPENDIX
MCNEILL STOKES
1040 Peachtree Battle Avenue
Atlanta, Georgia 30327
Telephone: (404) 352-2144
Facsimile: (404) 367-0353
Attorney for Petitioners
LANTAGNE LEGAL PRINTING
801 Fast Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
TABLE OF CONTENTS
Page
United States Court of Appeals for the Eleventh Circuit
je ge Per err rr cer eeee rere cre ieee A-3
United States Court of Appeals for the Eleventh Circuit
Opinion dated July 22, 2004 ............ 2. eee eee A-5
Order of United States District Court for the Northern
District of Georgia dated December 2, 2003 ........ A-10
Order of United States District Court for the
Northern District of Georgia dated May 30, 2002 in
Coleman Jackson v. State Board of Pardons and Paroles,
Civil Action No. 2:01-CV-068-WCO.............. A-18
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 03-16298-II
MARGARET F. BRANCH,
RANDALL MANGOLD,
CONNIE R. BARCKETT,
Plaintiffs- Appellants,
versus
FILED
MILTON E. NIX, Jr., U.S. COURT OF APPEALS
GARFIELD HAMMONS, Jr., ELEVENTH CIRCUIT
BETTY ANN COOK, NOV 30 2004
EUGENE P. WALKER,
J. MICHAEL LIGHT, aes
JOE FERRERO,
Defendants-Appellees,
Appeal from the United States District Court for the
Northern District of Georgia
ON PETITION(S) FOR REHEARING AND PETITION(S)
FOR REHEARING EN BANC (Opinion
11" Cir. 19, F. 2d ).
Before, EDMONDSON, Chief Judge, BLACK and
BARKETT, Circuit Judges.
PER CURIAM:
The Petition(s) for Rehearing are DENIED 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 Petition(s) for Rehearing En
Banc are DENIED.
ENTERED FOR THE COURT:
s/J.L. EXMONDSON
CHIEF JUDGE
A-4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-16298 Julv 22. 2004
Non-Argument Calendar
THOMAS K. KAHN
CLERK
D.C. Docket No. 03-00537-CV-CAP-]
MARGARET F. BRANCH,
RANDALL MANGOLD,
CONNIE R. BARCKETT,
Plaintiffs- Appellants,
versus
MILTON E. NIX, Jr.
GARFIELD HAMMONS, Jr.,
BETTY ANN COOK,
EUGENE P. WALKER,
J. MICHAEL LIGHT,
JOE FERRERO,
Defendants-Appellees,
\
Appeal from the United States District Court
for the Northern District of Georgia
(July 22, 2004)
Before EDMONDSON, Chief Judge, BLACK and
BARKETT, Circuit Judges.
PER CURIAM:
Plaintiffs inmates in Georgia prisons, brought this
section 1983 action, 42 U.S.C. § 1983, on behalf of
themselves and other similarly situated inmates, contending
that Defendants, the Georgia Board of Pardons and Paroles
(the “Board”) and named members, violated their
constitutional rights against ex post facto laws. The district
court granted Defendants’ motion for summary judgment
and denied Plaintiffs’ motion for equitable relief. Plaintiffs’
appeal. No reversible error has been shown; we affirm.
On 9 December 1997, the Board passed a resolution
pursuant to which they announced that the Board’s policy
would be to require, effective 1 January 1998, certain listed
violent offenders and residential burglars to serve a
minimum of 90 percent of their court-imposed sentences.'
This new policy was posted on the Board’s website on 2
January 1998. Under this new policy, persons convicted of
' The Board’s 9 December 1997 resolution applied to all
inmates who were convicted on or after 1 January 1998. In
Jackson v. State Board of Pardons and Paroles, No. 2:01-
CV-068-WCO; 2002 WL 1609804 (N.D. Ga. 2002), the
district court determined that the retroactive application of
the Board’s 90 percent-to-serve policy to inmates whose
offense conduct pre-dated adoption of the policy violated the
ex post facto clause. The Board amended the policy on 9
September 2002 to provide that it would apply only to those
offenders who committed their crimes on or after 1 January
1998. We assume for purposes of this appeal -- and the
Board does not argue otherwise -- that, as the Jackson court
concluded, application of the Board’s 90 percent-to-serve
policy to inmates whose crimes were committed before the
policy was adopted would implicate the ex post facto clause.
A-6
the listed offenses would be assigned a tentative parole
month (“TPM”) at a point that assured that 90 percent of the
sentence had been served before parole would be granted.
Absent this policy change, inmates who had committed the
offenses underlying Plaintiffs’ convictions were assigned a
TPM based on the inmate serving the greater of one-third of
their judicial sentences, O.C.G.A. § 42-9-45(b), or the
months-to-serve calculated under the Parole Decision
Guidelines mandated by O.C.G.A. § 42-9-40(a).”
According to Plaintiffs, application of the 90 percent-
to-serve policy increased Plaintiff Mangold’s time-to-serve
from 40 months to 108 months; increased Plaintiff Branch’s
time-to-serve from 52 months to 108 months; and increased
Plaintiff Brackett’s time-to-serve from 34 months to 54
months.
Plaintiffs advance an ex post facto challenge to the
increase in their time-to-serve under the Board’s 90 percent
policy. But the sine qua non of an ex post facto law is
retrospective effect or application. Plaintiffs each committed
their offenses of conviction after the Board adopted the 90
percent-to-serve policy; no retrospective effect can be
shown. Simply stated, because the Board’s policy pre-dated
the commission of Plaintiffs’ offenses, the policy was in
effect when the offenses were committed. As a matter of
law, the Board infringed no ex post facto prohibition when it
applied its pre-existing policy to the determination of the
TPM for each of these Plaintiffs.
? In announcing the policy change, the Board stated that it
already often required persons convicted of the listed
offenses to serve 90 percent or more of the imposed -
sentence. By articulating the 90 percent policy, the Board
intended to simplify and to clarify its time-served practices
so that the state’s judges and district attorneys could better
gauge appropriate sentencing.
A-7
Plaintiffs argue that the Board failed to publish
properly the 90 percent-to-serve policy. Plaintiffs contend
that the Board was required, pursuant to the statutorily
mandated parole guidelines system (see O.C.G.A. 42-9-
40(b); 42-9-45(d)) to publish and to file the 90 percent-to-
serve policy in accordance with the Georgia Administrative
Procedure Act, O.C.G.A. § 50-13-1, et seq.; instead, the
Board issued a press release that was posted on the Board’s
website. See http://www.pap state.ga.us/News.htm, (news
release dated 01/02/98). The Board counters that the 90
percent-to-serve policy indicates how the Board will exercise
its discretion; the Administrative Procedure Act has no
application because the Board did not promulgate the policy
as a rule or regulation as contemplated by O.C.G.A. § 42-9-
45(d).
We need not decide whether the Board promulgated
properly under state law the 90 percent-to-serve policy.
Plaintiffs bring this action under section 1983; and Plaintiffs
must show, among other things, that they have suffered a
violation of a right secured by the Constitution of the United
States. The Board’s policy change pre-dated the acts for
which Plaintiffs are incarcerated. The Board announced the
policy change on the Board’s website before the Plaintiffs
committed the offenses. Plaintiffs’ protestations to the
contrary notwithstanding, the policy change was no “secret”
law; the published press release gave fair notice of the policy
change. Unless a state law requirement is also a federal
constitutional requirement, whether procedures employed
complied with state law fails to control our inquiry in a
section 1983 action.
Plaintiffs also assert a due process challenge to the-
Board’s 90 percent-to-serve policy based on a claimed
liberty interest in parole. The district court concluded
correctly that Plaintiffs have no liberty interest or
constitutionally-protected expectation concerning parole
A-8
a
under the Georgia parole system. See Sultenfuss v. Snow, 35
F.3d 1494, 1502 (11" Cir. 1994) (“[vJiewing Georgia’s
parole system in its entirety, we conclude that no protected
liberty interest in parole is created”); Jones v. Ray, 279 F.3d
944, 946 (11™ Cir. 2001) (Georgia inmates are foreclosed by
Sultenfuss from making a liberty interest due process claim
based on state law and no federal constitutional right to
parole exists independent of a state created liberty interest).
AFFIRMED.
A-9
FILED IN CLERK’S OFFICE
U.S.D.C. Atlanta
DEC 2 2003
LUTHER D. THOMAS, Clerk
By:
Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARGARET BRANCH, et al., : PRISONER
- CIVIL RIGHTS
Plaintiffs, > 42U.S.C. § 1983
V.
- CIVIL ACTION NO.
MILTON E. NIX, JR., et al., 1:-03-C V-0537-CAP
Defendants. am
ORDER
This case is before the Court on Plaintiffs’ motion for
equitable relief [Doc. 6], Defendants’ response to the motion
for equitable relief [Doc. 8], Plaintiff's reply thereto [Doc.
10], Defendants’ motion for summary judgment [Doc. 7],
Plaintiffs’ response to the summary judgment motion [Doc.
9], Defendants’ reply thereto [Doc. 13], and Defendants’
response to Plaintiffs’ statement of undisputed facts [Doc.
14]. The Court has reviewed the record and the arguments of
the parties and, for the reasons set out below, concludes that
Defendants’ motion for summary judgment [Doc. 7] should
be GRANTED and Plaintiffs’ motion for equitable relief
[Doc. 8] should be DENIED.
I. Background
Plaintiffs Margaret F. Branch, Randall Mangold, and
Connie R. Brackett bring this action against Georgia Board
of Pardons and Paroles (“Board”) members Milton E. Nix,
Jr., Garfield Hammonds, Jr., Dr. Betty Ann Cook, Dr.
Eugene P. Walker, J. Michael Light, and Acting
Commissioner of the Georgia Department of Corrections
(“GDC”) Joe Ferrero. Plaintiffs contends that Defendants
violated their constitutional rights in connection with their
parole consideration by the Board. Specifically, Plaintiffs
argue that their ex post facto rights have been violated by the
retroactive application of a policy by the Board.
The undisputed facts of this case are as follows: On
September 18, 2000, Plaintiff Margaret F. Branch was
convicted of voluntary manslaughter and burglary in the
DeKalb County Superior Court and was sentenced to ten
years for each crime, to run concurrently. Branch committed
the crimes in 1999. (Affidavit of Melissa Rodgers “Rodgers
Aff.”, § 5). Branch was considered for parole and was
notified of the Board’s decision in a letter dated October 9,
2001. Id. at | 6). The Board voted to adopt the recommended
tentative parole month of June 2008, after Branch has served
90% of her sentence. (Id.).
On September 15, 2000, Plaintiff Randall Mangold
was convicted of involuntary manslaughter in the Camden
Superior Court and was sentenced to ten years. (Rodgers
Aff., § 7). Mangold committed the crime in 1999. (Id.).
Mangold was considered for parole and was notified of the
Board’s decision in a letter dated May 16, 2001. (Id. at J 8).
Mangold became statutorily eligible for parole after serving
40 months. (Id.). However, the Board voted to adopt the
recommended tentative parole month of January 2009, after
Mangold has served 90% of his sentence. (Id.). Mangold was
later notified that his tentative parole month had been
A-11
changed to November 2008, which reflects credit for time
served prior to sentencing. (Id. at J 9).
On June 29, 2000, Plaintiff Connie R. Brackett was
convicted in the Paulding County Superior Court of 12
counts of burglary and two counts of theft by taking and was
sentenced to twenty years with five to serve on each of the
12 counts of burglary, to be served concurrently, and ten
years with five to serve on each of the counts of theft by
taking, to be served concurrently. (Rodgers Aff., J 10).
Brackett’s crimes were committed in May of 1998. (Id.).
Brackett was considered for parole and was notified of the
Board’s decision in a letter dated February 12, 2001. (Id. at
{ 11). The Board voted to adopt the recommended tentative
parole month of September 2004, after Brackett has served
90% of her sentence. (Id.).
On December 9, 1997, the Board adopted a policy
amending the Board’s Parole Decision Guidelines System to
provide that any offender convicted on or after January 1,
1998, of residential burglary or nineteen (19) other specified
crimes, the Guidelines’ recommended time to serve would be
at least 90% of the court imposed prison sentence, regardless
of the grid component “score” of the offender.’ (Rodgers
Aff., J 12; Def. Ex. 5). On September 9, 2002, the Board
amended its 90% policy for offenders convicted of
residential burglary and the other specified crimes to provide
' This Court takes judicia! notice of the fact that, on its web
site, the Board announced the new 90% policy in January
1998. See Georgia State Board of Pardons and Paroles, News
Releases, http://www.pap.state.ga.us/NRFrames.htm (Jan. 2,
1998, release, Policy Mandates 90% Prison Time for Certain
Offenses) (“Since 1991 the Board has steadily and
consistently amended and refined its guidelines and policies
to provide for lengthier prison service for violent
criminals.”).
that the policy shall only be applied to those offenders who
committed their crimes on or after January 1, 1998. (Rodgers
Aff. J 13; Def. Ex. 6).
On February 27, 2003, Plaintiffs filed the instant
complaint [Doc. 1] seeking equitable and monetary relief for
alleged constitutional violations involving their parole
reconsideration.” On June 16, 2003, Plaintiffs filed a motion
for equitable relief [Doc. 6], seeking to enjoin the Board
from retroactively enforcing the “unpublished” 90% policy.
On July 2, 2003, Defendants filed a motion for summary
judgment [Doc. 7], claiming that Plaintiffs’ ex post facto
claims are without merit because the 90% policy was not
applied retroactively to Plaintiffs and that, in the alternative,
Defendants are immune from suit.
If. Summary Judgment Standard
Summary judgment is not properly viewed as a
device that the trial court may, in its discretion, implement in
lieu of a trial on the merits. Instead, Rule 56 of the Federal
Rules of Civil Procedure mandates the entry of summary
judgment against a party who fails to make a showing
sufficient to establish the existence of every element
essential to that party’s case on which that party will bear the
? Plaintiffs also filed this action as a habeas corpus petition
brought pursuant to 28 U.S.C. § 2254. However, the case is
more properly brought as a civil rights action pursuant to 42
U.S.C. § 1983, because a declaration by the Court that the
90% policy should not be applied to Plaintiffs would not
automatically lead to their release. Thomas v. Georgia State
Board of Pardons and Paroles, 881 F.2d 1032, 1033 (1 1" Cir.
1989). See also, Jackson v. Georgia Board of Pardons and
Paroles, No. 2:01-CV-068-WCO; 2002 WL 1609804 (N.D.
Ga. May 30, 2002) (treating similar challenge as a § 1983
action).
burden of proof at trial. Celotex Corp. v. Catrett, 477 US.
317, 322 (1986). In such a situation, there can be no genuine
issue as to any material fact, as a complete failure of proof
concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial. Id. at 322-
23.
The movant bears the initial responsibility of
asserting the basis for his motion. Id. at 323; Apcoa, Inc. v.
Fidelity Nat’] Bank, 906 F.2d 610, 611 (11™ Cir. 1990). The
movant is not required to negate his opponent’s claim,
however. The movant may discharge his burden by merely
‘showing’ -- that is, pointing out to the district court-- that
there is an absence of evidence to support the nonmoving
party’s case.” Celotex, 477 U.S. at 325. After the movant has
carried his burden, the nonmoving party is then required to
“go beyond the pleadings” and present competent evidence®
designating “’specific facts showing that there is a genuine
issue for trial.”” Id. at 324 (quoting Fed. R. Civ. P. 56(e)).
While the court is to view all evidence and factual inferences
in a light most favorable to the nonmoving party, Samples v.
City of Atlanta, 846 F.2d 1328, 1330 (11™ Cir. 1988), “the
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there
be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A fact is material when it is identified as such by the
controlling substantive law. Id. at 248. An issue is genuine
when the evidence is such that a reasonable jury could return
a verdict for the nonmovant. Id. at 248. The nonmovant
“must do more than simply show that there is some
> The nonmoving party may meet its burden through
affidavit and deposition testimony, answers to
interrogatories, and the like. Celotex, 477 US. at 324.
A-14
BM iii sii2i ise 2.
metaphysical doubt as to the materials facts... . Where the
record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no ‘genuine issue
for trial.’” Matsushita Electric Indus. Co. V. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). An
issue is not genuine if it is unsupported by evidence, or if it
is created by evidence that is “merely colorable” or is “not
significantly probative.” Anderson, 477 U.S. at 249-50.
Thus, to survive a motion for summary judgment, the
nonmoving party must come forward with specific evidence
of every element material to that party’s case so as to create a
genuine issue for trial.
I. Discussion
Plaintiffs argue that the application of the 90% policy
to Plaintiffs’ parole consideration violates their constitutional
protection against ex post facto laws. Section 1983 provides,
in relevant part, that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress
Thus, in order to establish a claim under Section
1983, Plaintiffs must show a violation of a right secured by
the Constitution of the United States and also show that the
deprivation was committed by a person acting under color of
state law. Cummings v. DeKalb County, 24 F.3d 1349 (11"
Cir. 1994); see also Graham v. Connor, 490 U.S. 386, 393-
A-15
94 (1989) (Ҥ 1983 is not itself a source of substantive rights,
but merely provides a method for vindicating federal rights
elsewhere conferred”) (internal quotes omitted) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3, (1979)).
Plaintiffs’ ex post facto claims fail as a matter of law.
The Constitution prohibits states from enacting ex post facto
laws. U.S. Const., Art. I, § 10, cl. 1. “One function of the Ex
Post Facto Clause is to bar enactments which, by retroactive
operation, increase the punishment for a crime after its
commission.” Garner v. Jones, 529 U.S. 244, 249 (2000).
It is undisputed that Plaintiffs committed their
offenses for which they were convicted in 1999 (Branch and
Mangold) and May of 1998 (Brackett).* The Board’s 90%
policy became effective on December 9, 1997, prior to the
commission of Plaintiffs’ offenses. See Jackson, 2002 WL
1609804. Thus, the 90% policy could not have been
retroactively applied to them. That policy also could not
have increased their punishment after they committed their
crimes because the policy already was in effect at the time
that Plaintiffs committed their offenses. Accordingly, as a
matter of law, the Board did not violate the Ex Post Facto
Clause when determining Plaintiffs parole consideration
date.
Plaintiffs’ argument that the 90% policy was “secret”
and “unpublished” is without merit. As previously noted, this
Court takes judicial notice of the fact that the Board
announced the policy on its website in January of 1998. See
Georgia State Board of Pardons and Paroles, News Releases,
http://www.pap.state.ga.us/NRFrames.htm (Jan. 2, 1998,
release, Policy Mandates 90% Prison Time for Certain
* An ex post facto violation is determined by the date of the
commission of the offense, rather than the date of conviction.
Weaver v. Graham, 450 U.S. 24, 30-31 (1981).
A-16
Offenses) (“Since 1991 the Board has steadily and
consistently amended and refined its guidelines and policies
to provide for lengthier prison service for violent
criminals.”).
The Court notes that Plaintiffs have no liberty interest
or constitutionally-protected expectation of being paroled in
the Georgia Parole system. Sultenfuss v. Snow 35 F.3d 1494,
1499-1501 (11™ Cir. 1994), cert. denied, 513 U.S. 1191
(1995). The Board has broad and unfettered discretion in
reaching parole decisions as to each inmate based upon their
individual history and circumstances. Id. at 1499-1501. The
Board is not required to reach any particular result in a
given case, to adhere to any uniform standard of review, or
to abide by the parole guidelines in administering parole. Id.
In short, Plaintiffs cannot defeat Defendants’ motion
for summary judgment because they have failed to produce
evidence that, if proven at trial, would allow a fact-finder to
find that Plaintiffs have suffered an ex post facto violation.°
IV. Conclusion
V.
For the foregoing reasons, the Court finds that
Defendants’ motion for summary judgment [Doc. 7] is
GRANTED, and Plaintiffs’ motion for equitable relief [Doc.
6] is DENIED as moot.
IT IS SO ORDERED, this 2 day of December ,
2003.
S/Charles A. Parnell, Ja.
CHARLES A. PANNELL, JR.
UNITED STATES DISTRICT JUDGE
> Consequently, it is unnecessary for this Court to consider
whether Defendants are immune from suit.
A-17
FILED IN CLERK'S OFFICE
U.S.D.C. — Gainesville
MAY 30, 2002
LUTHER D. THOMAS, Clerk
By:_/s/ Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA ~~ -
GAINESVILLE DIVISION
COLEMAN JACKSON,
Plaintiff,
VS. : CIVIL NO.
: 2:01-CV-068-WCO.
STATE BOARD OF PARDONS & :
PAROLES; DEPARTMENT OF
OFFENDER REHABILITATION
OF THE STATE OF GEORGIA,
Defendant.
ORDER
The captioned case is before the court for
consideration of plaintiff's motion for equitable judgment [7-
1].
I. Background
Plaintiff is currently confined at the Hall County
Correctional Institute pursuant to an August 4, 1999
conviction for aggravated assault in the Superior Court of
Fulton County, Georgia. See State v. Jackson, No. Z85142
(Ga.Super. Ct. filed Dec. 20, 1996). Based upon a grand jury
indictment charging him with "unlawfully commit[ting] an
A-18
assault upon the person of Shirley Ann Welch, by shooting
at, toward, and in her direction with a pistol, and by striking
and beating her with a pistol," the court sentenced plaintiff to
confinement for a period of twenty years, with five years to
serve (Pl.'s Ex. 5 at 33; Def.'s Ex. 4 at 2).' Plaintiff did not
appeal his conviction or sentence.
As of August 25, 1996, the date of plaintiff's offense,
the Georgia General Assembly required prisoners convicted
of aggravated assault to serve a minimum of "one-third of
the prison term imposed by the sentencing court" before
becoming eligible for an initial parole hearing before the
State Board of Pardons & Paroles ("the Board"). O.C.G.A. §
42-9-45(f) (2002). Nevertheless, on December 9, 1997, the
Board adopted a resolution amending its statutory guidelines
"to provide that any offender who is convicted on or after
January 1, 1998, of one or more of [twenty enumerated
offenses, including aggravated assault] ... will be required to
serve a minimum of 90% of the court imposed term of
incarceration in prison" (Pl.'s Ex. 1 at 1; Def.'s Ex. 2 at 2
("90% time-served policy")). The Board's new 90% time-
served policy thus increased the minimum number of
months-to-serve for certain offenses, including plaintiff's,
postponing the date of the earliest possible parole eligibility
hearing until service of 90%, rather than one-third, of the
inmate's prison sentence. Further, the Board applied its new
policy retroactively; the policy applied to all covered
convictions entered on or after January 1, 1998 even though,
in many cases, the underlying criminal conduct had taken
place prior to that date.
' Unless otherwise indicated, "Ex." refers to exhibits
admitted at the evidentiary hearing held in connection with
this matter on April 10, 2002.
A-19
On October 2, 2000, the Board informed plaintiff that
his recommended tentative parole month ("TPM"), the date
upon which he would tentatively be entitled to his first
parole eligibility hearing, had been scheduled for June of
2003 (PI.'s Ex. 5 at 18; Def .'s Ex. 5). Plaintiff challenged his
TPM by letter of October 24, 2000, requesting that the Board
re-evaluate his parole eligibility (Pl.'s Ex. 5 at 16; Def.'s Ex.
3 at 16). In response, the Board informed plaintiff that,
pursuant to its newly adopted 90% time-served policy,
plaintiff "must serve 90% or 54 months of his sentence
before any parole," and that "the Parole Board [would] not
reconsider its decision...." (Pl.'s Ex. 5 at 13; Def.'s Ex. 3 at
13).
Consequently, plaintiff renewed his request for
reconsideration by the Board, while also challenging his
TPM before Georgia's Superior Courts Sentence Review
Panel (Pl.'s Ex. 5 at 10, 12; Def.'s Ex. 3 at 10, 12). In both
instances, plaintiff argued that the Board's decision to apply
its 90% time-served policy to his offense retroactively
increased the punishment inflicted upon him by the State of
Georgia, in violation of the Ex Post Facto Clause of the
United States Constitution. See U.S. Const. Art. | § 10, cl.
1. Plaintiff's requests were subsequently denied on February
23, 2001 and March 27, 2001, respectively (Pl.'s Mot. for
Equitable J., Ex. 4; Pl.'s Ex. 5 at 8; Def.'s Ex. 3 at 8). In its
March 27, 2001 letter to plaintiff, the Board observed that
"[m]Jany inmates whose offenses were committed prior to
January 1, 1998, but were convicted after January 1, 1998, as
was [plaintiff], have been considered under the Board's 90%
policy ... The Board is unwilling to deviate from the manner
in which this policy has been adopted and implemented"
(Pl.'s Ex. 5 at 8; Def.'s Ex. 3 at 8).
Thereafter, on April 25, 2001, plaintiff filed a joint
motion for a writ of habeas corpus pursuant to 28 U.S.C. §
2241 and a complaint for damages pursuant to 28 U.S.C. §
A-20
1983[1-1], re-asserting his Ex Post Facto Clause challenge in
this court. United States Magistrate Judge John R. Strother,
Jr. subsequently issued a report and recommendation ("R &
R") [6-1] recommending that plaintiff's § 2241 petition be
dismissed without prejudice for failure to exhaust his
available state remedies, see 28 U.S.C. § 2254(b)(1) (2001);
that Georgia's Eleventh Amendment immunity warranted the
dismissal of plaintiffs § 1983 claims for money damages,
see U.S. Const. amend. XI; Will v. Michigan Dep't of State
Police, 491 U.S. 58, 65 (1989); and that plaintiffs § 1983 Ex
Post Facto claim otherwise be permitted to proceed.
Over plaintiff's objections [7-1], the court adopted
Judge Strother's R & R as the order of this court on March 7,
2002[8-1]. Yet, the court was unable to resolve plaintiff's
motion for equitable judgment respecting plaintiff's
surviving § 1983 claim [7-1], a motion that plaintiff had
haphazardly incorporated into his objections to the
magistrate's R & R. Specifically, the court noted that
plaintiff's motion for equitable judgment, in which he sought
to enjoin the Board's enforcement of the 90% time-served
policy against him, was not in proper form. Plaintiff had
failed to attach any affidavits in support of his factual
contentions, in violation of Local Rule 7.1, see L.R. 7.1,
NDGa., and plaintiff's factual allegations were insufficiently
developed to properly adjudicate the motion. Nevertheless,
the court determined that on its face, "(the Board]'s
retroactive application of its 90% time-served policy to
[plaintiff] [was] constitutionally suspect" (Order at 10).
Accordingly, the court set the matter for an evidentiary
hearing on April 10, 2002[9-1], at which time the Board was
ordered to show cause, if any, why plaintiffs motion for
equitable judgment should not be granted.
Il. The April 10, 2002 Hearing
At the April 10, 2002 hearing, the Board offered
A-21
testimony from Ms. Tracy D. Masters ("Masters"), Director
of the Board's Legal Services Division; Mr. Michael P.
Sullivan ("Sullivan"), Director of the Board's Clemency
Administration & Parole Selection Division; and Mr. Steve
Baustin ("Baustin"), an Officer in the Board's Hearing
Examiner Unit for Parole Decision Guidelines.
Baustin is one of ten hearing examiners responsible
for the calculation of parole eligibility data and a TPM date
for each inmate, which is then submitted to the Board for
review. The Board thereafter votes to accept or reject the
hearing examiner's recommendation. Although Baustin did
not personally conduct the initial "months-to-serve"
calculation respecting plaintiff's parole eligibility, he briefly
outlined the standard procedure each examiner employs:
A. The Initial TPM Recommendation
First, the examiner identifies the inmate's "Crime
Severity Level" on a table of offenses listed from least severe
("Level I") to most severe ("Level VII") (Pl.'s Ex. 4 at 2
("Crime Severity Levels")). The table classifies aggravated
assault as a "Level V" offense. Next, the hearing examiner
calculates the inmate's "Total Parole Success Likelihood
Score" on a "Parole Decision Guidelines" chart (Pl.'s Ex. 5 at
18; Def.'s Ex. 5; Def.'s Ex. 6). This score represents the sum
of eight numerical "Parole Success Factors," historically-
based data such as the inmate's number of prior convictions,
previous parole or probation violations, and history of drug
use. Based upon plaintiff's criminal and social history,
plaintiff received a Total Parole Success Likelihood Score of
14.
Once the hearing examiner calculates the Crime
Severity Level and Total Parole Success Likelihood Score,
the examiner uses the two figures to identify the
recommended number of "months-to-serve" on a Parole
A-22
ae |
Decision Guidelines Grid (Pl.'s Ex. 4 ("Guidelines Grid")).
For a "Level V" offense with a Parole Success Likelihood
Score of 14, the Guidelines Grid recommends that the inmate
serve 34 months before being eligible for parole. Notably,
the Guidelines Grid describes Parole Success Likelihood
Scores in the 14-20 point range as "EXCELLENT."
The hearing examiner then calculates the inmate's
TPM based upon the recommended months-to-serve from
the Guidelines Grid. In plaintiff's case, for example, the 34
months-to-serve calculation would have generated a
recommended TPM of October 2001. Yet, hearing officers
cannot submit a TPM to the Board without also considering
the minimum parole eligibility requirements: (1) the one-
third time-served requirement under O.C.G.A. § 42-9-45(f);
and (2) the 90% time-served policy. Further, according to
Sullivan, the Director of the Board's Clemency
Administration & Parole Selection Division, hearing
examiners are instructed to recommend the lengthiest
number of months-to-serve to the Board. Thus, as Baustin
testified, the TPM date that the hearing examiner
recommends to the Board will represent the greater of either
(1) the inmate's Guidelines Grid score, or (2) 90% of the
inmate's court-imposed prison sentence, if applicable to his
offense.
Given his lack of involvement in plaintiffs initial
TPM calculation, Baustin could only speculate as to why the
Board assigned plaintiff a TPM of June 2003 instead of
October 2001, the Guidelines Grid recommendation. He
admitted, however, that the hearing examiner's application of
the 90% time-served policy was the most likely explanation
for the approximately 20-month disparity.
B. The Board's Discretion
Sullivan observed that, aside from the statutory
A-23
minimum threshold set forth under O.C.G.A. § 42-9-45(f),
the Board is not bound by the 90% time-served policy, the
hearing examiner's TPM recommendation, or any other
calculations made by the hearing examiner. In fact, Sullivan
asserted, in making his recommendation, the hearing
examiner is "just doing math for the Board." He further
testified that nothing prevents the Board from exercising its
discretion, and that, in hundreds of cases, the Board has
actually departed upward from the recommended TPM date
resulting from the application of the 90% time-served policy.
Additionally, Sullivan noted that even after the Board votes
to approve a particular TPM date, the Board retains
discretion to modify that date at any time, which it often
does.
Masters, the Board's Director of Legal Services,
likewise testified that the 90% policy is merely a "policy"
that lacks the effect of law. Rather, she contended, the 90%
time-served policy may be modified by the Board at any
time, via a majority vote of its members. Masters argued that
in enacting the policy, the Board simply wished to
promulgate the manner in which it planned to exercise its
discretion. The Board hoped to inform attorneys, judges, and
criminal defendants of its intentions, and to dispel public
misconceptions about Georgia's pardon and parole system.
Similarly, Baustin observed that the 90% time-served
policy is "just another factor" the Board considers in making
parole decisions. He noted that, irrespective of the hearing
examiner's recommendation, the Board makes an
individualized determination in each case.
On the other hand, on cross-examination, plaintiff
elicited testimony from Sullivan indicating that, out of over
8,000 cases, the Board deviated downward from the 90%
time-served policy only 10 or 11 times. Further, the Board
apparently deviated downward in those 10 or 11 cases
A-24
because of extraordinary circumstances (i.e., where the
inmates at issue had rendered substantial assistance to
prosecutors). Although Masters had similarly contended that
the Board's broad discretion vitiated the importance of the
90% time-served policy, she admitted on cross examination
that the Board follows the hearing examiner's TPM
recommendation "all the time," perhaps in as many as 80%
of the cases the Board reviews.
C. Reconsideration of the Board's TPM Notice
After the Board votes to accept or deny the TPM
recommendation submitted by the hearing examiner, the
Board notifies the inmate of its decision via a "Parole
Decision Guidelines--Notice of Tentative Action" (Parole
Decision Guidelines). Said notice includes, inter alia, the
Board's TPM _ recommendation, the months-to-serve
calculation generated from the Guidelines Grid, and the
cumulative Parole Success Likelihood Score. Further, the
notice indicates that "[a]ll decisions made by the Board are
tentative and may be changed at the discretion of the Board
at any time." At this point, the inmate may request that the
Board reconsider his recommended TPM date.
Baustin, who personally reviewed plaintiff's request
for reconsideration, testified that in his 23 years of
employment with the Board, he has reviewed approximately
1,200 TPM “appeals" per year. Further, Baustin indicated
that he has deviated from the Board's TPM decision, and
recommended a different TPM, in approximately 20% of
those cases. Baustin was unable to determine whether the
TPM deviations within that 20% reflected months-to-serve
increases, or months- to-serve decreases, but he reiterated
that the Board ultimately has discretion to adjust the
recommended TPM date in either direction.
When asked by the court whether, on reconsideration,
A-25
the hearing examiner was authorized to deviate from the
Guidelines Grid calculations, Baustin explained that the
hearing examiner may include "comments" with his
recommendation (Def.'s Ex. 6). Baustin noted that the
hearing examiner's TPM recommendation is not always
"strictly by the grid," but that all of the pertinent Guidelines
Grid figures are provided to the Board for review. Further,
Baustin testified that the hearing examiner may include a
"policy" recommendation in his submission to the Board.
On the other hand, Baustin's testimony also disclosed
that the TPM "appeal" process is somewhat of a misnomer.
In practice, the hearing examiner who reviews the inmate's
request for reconsideration will not re-calculate the inmate's
TPM, re-submit the inmate's parole eligibility data to the
Board, or otherwise adjust the inmate's TPM date in any way
absent a mathematical error warranting reconsideration. The
"reconsideration" process may thus be more accurately
described as a request for a TPM _ "recomputation."
Moreover, Baustin asserted that the initial hearing examiner's
application of the 90% time-served policy to calculate an
inmate's TPM date, and the Board's subsequent acceptance
of the examiner's recommendation, is not the sort of "error"
warranting recomputation. Rather, according to Baustin,
requests for reconsideration filed on this basis are summarily
denied by the hearing examiners, ending the review process.
The typical errors Baustin encounters pertain to
miscalculated Crime Severity Levels and Parole Success
Likelihood Scores, and erroneous applications of the Board's
90% time-served policy (i.e., where the inmate's underlying
offense does not fall within the group of offenses covered
under the policy). Baustin discovers such errors in
approximately 10% of the 30 requests for reconsideration he
reviews each week. Even where computation errors are
discovered, however, the hearing examiner will not re-
submit a case to the Board for reconsideration if the case
A-26
aia titania ee
falls under the 90% time-served policy.’
Finally, with respect to plaintiff's requests for
reconsideration, Baustin observed that he personally denied
plaintiff's requests on January 18, 2001 and February 17,
2001. Baustin asserted that, the Board having accepted the
initial hearing examiner's 90% time-served recommendation,
he saw no reason to depart from the TPM date at issue.
Rather, Baustin testified, the Board would not likely have
reconsidered its decision anyway. Baustin noted that
although the Board has not made any official declaration to
him indicating that the application of the 90% time-served
policy is mandatory, the Board has "made it clear that ... [it]
would not reconsider the 90% policy" in the TPM "appeal"
context.
D. Plaintiff's Parole Success Likelihood
As to the likelihood that plaintiff would have
received an earlier TPM but for the Board's application of
the 90% time-served policy to his offense, Masters indicated
that, in her opinion, such a result was unlikely. Rather, she
testified that plaintiff's sentence was unusually short in
proportion to the severity of his offense, that the
recommendations generated from the Guidelines Grid do not
bind the Board, and that irrespective of the adoption of the
challenged policy, the Board could have required plaintiff to
"max out," or serve his entire 5-year term of incarceration. In
Masters’ opinion, plaintiff's court-imposed prison sentence
was unusually short in relation to similar offenses because
the sentencing judge was probably aware of the Board's 90%
2 Presumably, Baustin meant that — such
reconsideration would not take place, as a general rule,
because the TPM date generated by the 90% time-served
policy typically exceeds the Guidelines Grid
recommendation.
A-27
time-served policy and considered the policy in rendering his
sentence.
Utilizing incarceration data for aggravated assault
offenders in the Georgia prison system, Sullivan also
testified that, in his opinion, plaintiff's sentence was lighter
than one might expect given the victim's injuries, plaintiff's
use of a weapon, his prior criminal record, and his flight
from the police (Def.'s Ex. 12). Further, Sullivan's testimony
indicated that the average periods of incarceration imposed
by the State of Georgia upon relevant aggravated assault
offenders decreased slightly from 1996 (6.5 years imposed)
through 2000 (5.9 years imposed), while the average time-
-served for such offenders increased slightly during the same
period (from 2.9 years served in 1996 to 3.2 years served in
2000) (Def.'s Ex. 12). Thus, these statistics arguably
corroborated Masters’ contention that plaintiff received a
lighter sentence because of the Superior Court's awareness of
the 90% time-served policy. Yet, Sullivan also
acknowledged that plaintiff received the maximum statutory |
sentence of 20 years, with 5 years to serve, and that |
plaintiff's "good work history" would have been considered
at sentencing.
Ill. Plaintiff's Motion for Equitable Judgment |
A. 42 U.S.C. § 1983
To articulate a cognizable claim under 42 U.S.C. §
1983, "plaintiff must show that a person, acting under color
of any statute, ordinance, regulation, custom, or usage,
deprived him of a right, privilege, or immunity secured by
the Constitution." Nat'l Abortion Fed'n v. Metro. Atlanta
Rapid Transit Auth, 112 F.Supp.2d 1320, 1328
(N.D.Ga.2000). Plaintiffs § 1983 claim is rooted in the
Board's alleged violation of plaintiffs rights under the Ex
Post Facto Clause of the United States Constitution [1-1].
A-28
See U.S. Const. Art. I, § 10, cl. 1. The alleged violation
stems from the Board's retroactive enforcement of its 90%
time-served policy against plaintiff, thus the Board may
fairly be characterized as “acting under color" of state law
within the meaning of § 1983. 42 U.S.C. § 1983.
B. Analysis of Plaintiff's Ex Post Facto Claim
1. Ex Post Facto Standard
S oeiininnnaianiedl
To prove that a retroactively applicable parole board
procedure violates the Ex Post Facto Clause, a prisoner must
show that the challenged action "creates a significant risk of
prolonging [his] incarceration." Garner v. Jones, 529 U:S.
244, 251 (2000). In two recent opinions, one of which
originated in this very district, the United States Supreme
Court suggested that a retroactive amendment postponing a
prisoner's initial parole eligibility date would offend the
constitutional ban on Ex Post Facto legislation. See Garner,
529 U.S. at 250-51 (2000); California Dep't of Corrections v.
Morales, 514 U.S. 499, 511 (1995). Additionally, nearly
thirty years ago the Supreme Court observed that "a repealer
of parole eligibility previously available to imprisoned
offenders would clearly present the serious question under
the Ex Post Facto clause [citations omitted] of whether it
imposed a ‘greater or more severe punishment than was
prescribed by law at the time of the ... offense.'" Warden,
Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 663 (1974)
(emphasis added) (quoting Rooney v. North Dakota, 196
U.S. 319, 325 (1905)). That same Supreme Court cited, with
apparent approval, a decision of the United States Court of
Appeals for the Ninth Circuit holding that "[u]nder
California law, a convicted person's eligibility for parole
consideration (as opposed to parole) is part of the ‘law
annexed to the crime when committed’ ... and any legislative
change in such eligibility which would work to a prisoner's
disadvantage may not be retroactively applied." Love_v.
A-29
Fitzharris, 460 F.2d 382, 383 (9th Cir.1972), vacated on
other grounds, 409 U.S. 1100 (1973). See also Akins _v.
Snow, 922 F.2d 1558, 1563 (11th Cir.1991), cert. denied,
501 U.S. 1260 (1991) (opining that the Ex Post Facto Clause
"applies to a change in parole eligibility" because "parole
eligibility must be considered part of any sentence....").
Nevertheless, the Supreme Court has declared that
there is no "simple formula" for determining whether official
rules or procedures violate the Ex Post Facto Clause. Garner,
529 U.S. at 252. Rather, in the pardons and paroles context,
the inquiry ultimately boils down to whether, in light of all
of the relevant facts and circumstances, the prisoner can
show "through evidence drawn from the rule's practical
implementation by the agency charged with exercising
discretion, that its retroactive application will result in a
longer period of incarceration than [he would have received]
under the earlier rule." Id. at 255. To make such a showing,
the inmate need not prove "that he definitely would have
served a lesser sentence under the previous legal regime,"
Jones v. Georgia State Board of Pardons & Paroles, 59 F.3d
1145, 1149 (11th Cir.1995) (emphasis omitted) (citing Miller
v. Florida, 482 U.S. 423, 432 (1987)), only that the
challenged procedure creates a "sufficient risk" of doing so.
Morales, 514 U.S. at 509.
To inform this analysis, courts should examine the
parole board's internal policy statements, for "[a]t a
minimum, policy statements, along with the Board's actual
practices, provide important instruction as to how the Board
interprets its enabling statute and regulations, and therefore
whether ... the amendment [at issue] ... create[s] a significant
risk of increased punishment." Garner, 529 U.S. at 256.
Further, such "policies and practices will indicate the manner
in which [the Board] is exercising its discretion." Id.
Ex Post Facto Clause analysis also requires courts to
gauge the level of discretion actually exercised by the parole
board in question. For example, both Garner v. Jones, 529
U.S. 244, and Jones v. Georgia State Board of Pardons &
Paroles, 59 F.3d 1145, involved ex post facto challenges to
certain parole eligibility procedures that were retroactively
enforced by Georgia's State Board of Pardons & Paroles, the
defendant in the instant litigation. The Garner court
examined a Board rule that retroactively decreased the
frequency, from three years to eight years, with which
prisoners serving life sentences would be granted parole
reconsideration hearings after an initial denial. See Garner,
529 U.S. at 247. In Jones, a Georgia inmate sought to enjoin
the enforcement of a Board rule that retroactively required
"Level V" offenders to serve the greater of either (1) the
recommended months-to-serve from the Guidelines Grid; or
(2) one-third of the court-imposed sentence of incarceration,
before being eligible for parole. 59 F.3d at 1148. Previously,
only the more serious "Level VI" and "Level VII" offenders
were subject to the one-third time-served requirement; "the
TPM of prisoners with [Crime Severity Levels] of I through
V was determined, prior to any discretionary departure,
solely by reference to the [Guidelines Grid]." Id. at 1147.
Although the United States Court of Appeals for the
Eleventh Circuit had found, in Garner, that the challenged
rule violated ex post facto, the Supreme Court ultimately
reversed and remanded for further findings on grounds that
the Eleventh Circuit failed to evaluate whether the rule
actually posed a sufficient risk of increasing the inmate's
punishment. See Garner 529 U.S. at 255. Specifically, the
Supreme Court could not determine, from the record before
it, whether the Board's discretion to grant a parole
reconsideration hearing during the eight-year interval in
which no hearing was due, or the Board's discretion to grant
expedited reconsideration hearings in the event of a change
in circumstances, vitiated the underlying ex post facto
concerns. See id.
Likewise, the "undisputed fact" that the Board
"retained and in fact exercised virtually unfettered discretion
to deviate both above and below the Guidelines-
recommendation in setting the TPM" was the key to the
Eleventh Circuit's decision in Jones. 59 F.3d at 1149.
Affirming the district court's conclusion that the Board's
retroactive extension of the one-third time-served
requirement to Level V offenders did not violate the Ex Post
Facto Clause, the Eleventh Circuit opined that "the degree of
the Board's continuing parole discretion implies that the
TPM rule change 'create[d] only the most speculative and
attenuated possibility of producing the prohibited effect of
increasing the measure of punishment for covered crimes....""
Id. (quoting Morales, 514 U.S. at 500).
Finally, several federal decisions suggest that a
challenged parole eligibility method, policy, or procedure
need not necessarily take the form of a law, rule, or
regulation to implicate the Ex Post Facto Clause. See, e.g.,
Garner, 529 U.S. at 255 (opining that ex post facto plaintiff
must show that the rule has the effect of retroactively
increasing his punishment); United States v. Adeleke, 968
F.2d 1159, 1160 (11th Cir. 1992) (opining that the retroactive
use of an application note to the federal sentencing
guidelines, lacking "the force of law," cannot be deemed to
have "changed the law" for ex post facto purposes.); Akins,
922 F.2d at 1561 (11th Cir.1991) (opining that the rules and
regulations of the Board, a quasi-legislative entity, implicate
ex post facto because they have the force and effect of law);
Dufresne _v. Baer, 744 F.2d 1543, 1550 (11th Cir.1984)
(opining that the federal parole guidelines lacked "the
characteristics of law ... They are not filed and rigid, but are
flexible" and, therefore, did not violate the Ex Post Facto
Clause); United States ex rel. Graham v. United States Parole
Comm'n, 629 F.2d 1040, 1043 (Sth Cir.1980) (opining that
any "official post-sentence action that delays eligibility for
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supervised release runs afoul of the ex post facto
proscription."); Warren v. Baskerville, 233 F.3d 204, 208
(4th Cir.2000) (opining that a retroactive parole "policy"
change "did not for ex post facto purposes have the force and
_ effect of law."); Hill v. Jackson, 64 F.3d 163, 169-70 (4th
Cir.1995) (opining that parole reconsideration "policy" did
not violate ex post facto because application of the policy
was not "automatic," appeals were permitted, and the policy
did not affect standards for initial parole consideration);
Hamm v. Latessa, 72 F.3d 947, 957 (lst Cir.1995)
(observing, in dicta, that a retroactively applicable parole
policy would constitute a "law" within the meaning of the Ex
Post Facto Clause if it "possess[ed] the full force and effect
of law...."); Geraghty v. U.S. Parole Commission, 579 F.2d
238, 267 (3d Cir.1978), vacated on other grounds, 445 U.S.
388 (1980) (noting that parole "guidelines" would violate ex
post facto if applied in a fixed and mechanical way); Love,
460 F.2d at 385 (9th Cir.1972) (opining that a parole board's
retroactive interpretation of a parole eligibility provision was -
subject to ex post facto constraints because the interpretation
had the effect of law); Oglesby v. Ray, 8 F.Supp.2d 1379,
1380 (N.D.Ga.1998) (Thrash, J .), rev'd on other grounds,
180 F.3d 272 (11th Cir.1999) (applying ex post facto
analysis to a retroactive parole board "policy").* Rather, as
> In Oglesby _v. Ray, the district court initially
determined that the challenged parole reconsideration
_ "policy" withstood ex post facto scrutiny because it did not
create a sufficient risk of retroactively increasing the
inmate's punishment. See 8 F.Supp.2d at 1383. The United
States Court of Appeals for the Eleventh Circuit
subsequently reversed and remanded the case for further
consideration in light of its intervening decision in Jones, 59
F.3d 1145. See Oglesby v. Ray, No. 1:97-CV-527-TWT
(N.D. Ga. order filed on April 23, 1999 [19-1] ). On remand,
the district court found the policy violative of the Ex Post
Facto Clause [26-1]; however, the Eleventh Circuit once
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noted, ex post facto considerations apply in the parole
eligibility context to any official policy or procedure that has
the full force and effect of law, and whose practical
implementation produces a "sufficient risk" of retroactively
lengthening the inmate's period of incarceration. Morales,
514 US. at 509.
2. Plaintiff's Challenge to the Board's 90% Time-
Served Policy
Plaintiff contends that under the guidelines in effect
when he committed his crime, he would have been entitled to
an initial parole eligibility hearing on or about August 23,
2000, after having served twenty months of his five-year
prison term (Pl.'s Mot. for Equitable J. at 3).* But for the
Board's retroactive application of its 90% time-served policy
to his offense, he argues, the relevant hearing examiner
would have recommended a TPM date based upon service of
one-third of his court-imposed prison sentence, see O.C.G.A.
§ 42-9-45(f); the Board would have simply adopted said
recommendation as a matter of routine practice; and plaintiff
again reversed the ruling in light of the intervening decision
of the United States Supreme Court in Garner, 529 U.S. 244
[31-1]. Finally, on November 6, 2001, the district court
ultimately dismissed the inmate's action as moot, given the
Board's voluntary cessation of the application of the
challenged policy [36-1]. Accordingly, the Eleventh Circuit
never specifically addressed whether the district court
properly treated the challenged "policy" as a “law" for ex
post facto purposes.
* Plaintiff contends that he is entitled to credit for
time served towards his August 4, 1999 sentence (217 days
of pre-trial confinement) (Compl.§] 7).
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would likely have been paroled on or about the adopted TPM
date, given that the Guidelines Grid rated his chance of
parole as "excellent." Instead, he claims, the Board rigidly
enforced its 90% time-served policy against him,
retroactively extending his TPM date from August 23, 2000
to June of 2003, and increasing the length of his confinement
by approximately 34 months (P1.'s Mot. for Equitable J. at 3).
According to the evidence presented at the April 10,
2002 hearing, however, plaintiff's position is not entirely
accurate. Rather, the testimony of Sullivan and Baustin
established that hearing examiners are instructed to
recommend the lengthiest number of months-to-serve under
the guidelines. Additionally, the Guidelines Grid indicates
that, "[flor certain Crime Severity Level V, VI, and VII
offenses, the Guidelines recommendation will be one-third
of the court-imposed sentence length or the grid
recommendation, whichever is greater" (Guidelines Grid
(emphasis omitted)). Accordingly, even if the 90% time-
served policy did not apply to plaintiff's offense, the Board
would likely have adopted the 34 months-to-serve
recommendation, it being the lengthier of the
recommendations generated from the Guidelines Grid (34
months) and the one- third requirement (20 months).
Therefore, plaintiff could have at best expected a TPM date
of October 2001 (34 months), rather than June 2003 (54
months).
Nevertheless, the approximately 20-month disparity
about which plaintiff complains is not to be taken lightly. If
the Board has inflexibly enforced its 90% time-served policy
against plaintiff, such that its application has the force and
effect of law, then the Board has created a risk of
retroactively increasing his punishment. Further, if plaintiff
would likely have been paroled sooner than June 2003 but
for the Board's allegedly unconstitutional action, then said
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risk is "sufficient" to render the policy violative of the Ex
Post Facto Clause. Morales, 514 U.S. at 509.
After careful review and consideration, the court
answers both of these questions in the affirmative. The
testimony presented to the court on April 10, 2002
established that although the Board is authorized to exercise
discretion, and that the TPM recommendations are merely
"recommendations" that remain "tentative" even after the
Board votes to accept them, the Board does not in fact
exercise any meaningful discretion in cases falling under its
90% time- served policy. Rather, the 90% time-served policy
serves as an inflexible benchmark below which the Board
almost never deviates. The statistical evidence, the
procedures in effect, the text of the resolution itself, and the
Board's internal policy statements and guidelines provide
overwhelming evidence, both direct and circumstantial, of
this fact.
a. The Practical Implementation of the
90% Policy
The evidence presented at the April 10th hearing
indicated that, from January 1, 1998 through June 30, 2001,
the Board deviated below the 90% threshold in exactly 10
cases out of 8,664 (Def.'s Ex. 8). Because each of those cases
involved highly unusual circumstances, however, the number
of downward deviations really amounts to zero. Application
of the 90% time-served policy is virtually automatic; the
TPM calculation generated by the 90% time- served policy
will inevitably reflect the highest number of months-to-serve
submitted to the Board, a figure that the Board will always
adopt. Thus, the change in the TPM formula at issue in this
case is a far cry from the change examined by the Eleventh
Circuit in Jones, where the court determined that the Board
"retained and in fact exercised virtually unfettered discretion
to deviate both above and below the Guidelines-
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maroon
recommendation in setting the TPM." Jones, 59 F.3d at
1149. Here, by contrast, the Board exercises unwavering
adherence to the challenged 90% benchmark.
The TPM "reconsideration" process is further
evidence that the Board blindly applies the 90% time-served
policy. In truth, the hearing examiner who conducts this
purely "paper" review exercises no discretion with respect to
90% cases. Unless an initial hearing examiner erroneously
calculates the inmate's TPM date under the 90% time-served
policy, when in fact the inmate's offense does not fall under
that policy, hearing examiners will not re-submit
recommendations to the Board even if the initial
recommendations contain mathematical errors. He alone
makes this decision, unilaterally ending the review process
without any adversarial hearing or meaningful
reconsideration.
b. The Board's Internal Policy Indicators
Likewise, the Board's December 9, 1997 resolution
adopting the challenged policy, as well as the Board's related
guidelines and policy statements, serve as circumstantial
evidence that the 90% time-served policy is applied
mandatorily. The pertinent text of the resolution provides:
WHEREAS: Since 1991, the Board has
steadily and consistently amended and refined
its guidelines to provide for lengthier time-
served for violent and dangerous criminals
while reducing the overall number of
individuals released on parole; and,
WHEREAS: The Board believes that a further
amendment to its statutorily mandated
guidelines will further enhance public safety
and make Georgia the toughest state in the
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nation for "time-served" for violent felonies
and residential burglaries;
THEREFORE: Be it now hereby resolved by
the [Board] that its statutorily mandated
guidelines are hereby amended to provide that
any offender who is convicted on or afier
January 1, 1998, of one or more of [20
enumerated offenses, including aggravated
assault] ... will be required to serve a
minimum of 90% of the court imposed term of
incarceration in prison.
(90% time-served policy at 1). This language clearly
expresses the Board's intent to lengthen the actual time
certain inmates serve in prison, "mak[ing] Georgia the
toughest state in the nation" in this regard, and declares that,
with respect to covered offenders, service of a minimum of
90% of the court- imposed term of incarceration "will be
required " (90% time-served policy at 1 (emphasis added)).°
The policy statement published on the Board's
internet home page similarly declares that "[t]he Board
requires all violent offenders ... to serve a minimum of 90
percent of their court-imposed terms of incarceration." State
of Georgia Board of Pardons & Paroles, "90-Percent
Policy," Parole Consideration-__and Eligibility
(www.pap.state.ga.us/eligibility.html, visited on May 2,
2002) (emphasis added). Finally, the text accompanying the
> Notably, in reviewing the parole procedures at issue
in Garner, the Supreme Court declared: "Absent a
demonstration to the contrary, we presume the Board follows
its ... internal policies in fulfilling its obligations." 529 U.S.
at 256 (emphasis added).
A-38 sa
Guidelines Grid indicates:
"Board's 90% Resolution: Pursuant to Board
policy, for persons CONVICTED on or after
January 1, 1998, the Guidelines
recommendation will be 90% of the court-
imposed prison sentence or the Grid
recommendation, whichever is greater....
(Guidelines Grid). In each of these examples, no discretion is
implied. Instead, the Board's language is unambiguously
mandatory, further supporting plaintiff's contention that the
Board's enforcement of the 90% time-served policy has the
force and effect of law for ex post facto purposes.
c. Plaintiff's Parole Success Likelihood
Given this determination, the challenged action
violates the Ex Post Facto Clause if there is a substantial
likelihood that plaintiff would have been paroled earlier had
the Board not retroactively enforced its 90% time-served
policy against him. As noted, the Guidelines Grid rates the
range within which plaintiffs 14-point Parole Success
Likelihood Score falls as "excellent." Yet, b~th Masters and
Sullivan opined that plaintiff would not likey have been
paroled even if the 90% time-served policy did not-apply to
his offense. Masters and Sullivan explained that, in their
opinion, the Superior Court sentenced plaintiff to an
unusually light term of confinement, anticipating that the
Board would require plaintiff to serve at least 90% of it.
Thus, they argued, the Board would not likely have
recommended an October 2001 TPM even ee the 90%
requirement.
The statistical evidence presented at the April 10th
hearing nonetheless established that although plaintiff
received a shorter than average prison term, his term (5
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years) was shorter than average as compared to all non-life
aggravated assault sentences imposed during 1998 (6.3
years), a year in which Superior Court judges would have
been aware of the new 90% requirement (Def.'s Ex. 12). It is
fair to infer, therefore, that the sentencing court imposed a
shorter than average term not because of its awareness of the
90% requirement, but because it did not regard plaintiff's
crime as particularly egregious as compared to other
aggravated assaults. Further, the court notes that plaintiff's
June 2003 TPM would require him to serve 54 months, or
4.5 years, a prison term that greatly exceeds the average
time-served attributable to all aggravated assault offenders
released from 1996 through 2001 (PI.'s Ex. 6 at 3; Def.'s Ex.
12). The court cannot reconcile this fact with plaintiff's 34- |
month grid score and his parole success rating of "excellent"
without concluding that plaintiff would likely have received
an earlier TPM date but for the Board's retroactive
application of the 90% time-served policy. Accordingly,
plaintiff has made the requisite showing of
unconstitutionality under the Ex Post Facto Clause.
IV. Prerequisites for Injunctive Relief
To prevail on a motion for injunctive relief, a
plaintiff must establish the following four factors: (1) actual
success on the merits; (2) a threat of irreparable injury; (3)
that plaintiffs own injury would outweigh the injury to
defendant; and (4) that an injunction would not disserve the
public interest. See Tefel v. Reno, 180 F.3d 1286, 1295 (11th
Cir.1999); Spottsville v. Barnes, 135 F.Supp.2d 1316, 1318
(N.D.Ga.2001) (citing Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531, 546 n. 12 (1987)). See also Siegel v. LePore,
234 F.3d 1163, 1213 (11th Cir.2000) (Carnes, J., dissenting).
With respect to plaintiff's ex post facto claim, the court
concludes that plaintiffs showing justifies the injunctive
relief he seeks. Accordingly, plaintiff's motion for equitable
judgment is hereby GRANTED [7-1].
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ee
IV. Conclusion
Having determined that the Board's retroactive
enforcement of its 90% time- served policy against plaintiff
is constitutional and invalid for the reasons set forth
herein, plaintiff's motion for equitable judgment is hereby
GRANTED [7-1]. Defendant State Board of Pardons &
Paroles, its officers, agents, servants, employees, attorneys,
and all persons acting in concert or participation with the
State Board of Pardons & Paroles who receive actual notice
of this order by personal service or otherwise, are hereby
RESTRAINED and ENJOINED from taking any actions of
any kind, legal or otherwise, to carry out, assert and/or
enforce the 90% time-served policy as it relates to this
individual--plaintiff Coleman Jackson. Defendant is hereby
ORDERED to provide plaintiff with an initial parole
eligibility hearing within FORTY-FIVE (45) DAYS of the
issuance of this order. Further, defendant is hereby
ORDERED to consider plaintiff's parole eligibility without
regard to the 90% time-served policy. To the extent that
plaintiff's counsel has moved for an order directing plaintiff's
immediate release from custody, said motion is hereby
DENIED. Nevertheless, the court will reconsider plaintiff's
request if defendant fails to comply with this order.
IT IS SO ORDERED, this _29"_ day of May, 2002.
s/ Willam C. O'Killey
William C. O'Kelley
Senior United States District Judge
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.