Opposition — Snow v. Graham

No. 91-1844

In The

Supreme Court of the United States

October Term, 1991

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WAYNE SNOW, JR., CHAIRMAN, Georgia State Board of

Pardons and Paroles,

Petitioner,

ISAAC GRAHAM,

Respondent.

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Eleventh Circuit

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RESPONDENT’S BRIEF IN OPPOSITION

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R. Scott Tewes

Kivpatrick & Copy

3100 Equitable Building

Atlanta, Georgia 30303

404/572-6500

Counsel for Respondent

COLE Un Seti ae hen

OR CALL COLLECT (402) 342-283

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TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT.............

A. THE QUESTIONS PRESENTED BY THE PETI-

B.

TIONER WERE NOT FULLY BRIEFED AND

IN a 6 bee abc bbb owen pened eenesss

THIS COURT RECENTLY HAS DECLINED TO

REVIEW BOTH ISSUES ADVANCED BY THE

git. aR eae ere ner

THE DECISION OF THE ELEVENTH CIRCUIT

IS CONSISTENT WITH COLLINS V. YOUNG-

BLOOD, OTHER DECISIONS OF THIS

COURT, AND THE DECISIONS OF OTHER

MEE Ss ove ke cteseecent ccseeees

THE ELEVENTH CIRCUIT’S HOLDING THAT

THE PAROLE RULE AT ISSUE IS A “LAW”

SUBJECT TO THE EX POST FACTO PROVI-

SIONS OF THE UNITED STATES CONSTITU-

TION DOES NOT CREATE A CONFLICT

WITH DECISIONS OF OTHER CIRCUIT

COURTS ADDRESSING THE LEGAL STATUS

CFE CE DRPEUE 9 bck b acess ucscedusaccss

LEC S045 ChGCAC Gee bene ccs ncievswubacaes

ii

TABLE OF AUTHORITIES

Page

CAsEs

Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991)...1, 2, 3, 8

Akins v. Snow, 111 S. Ct. SOUR CIBPERs voc ce ceases 3

Bailey v. Gardebring, 940 F.2d 1150 (8th Cir. 1991)

1060504 s:0.0'0.0 066 we eee gle 3, 7, 0, 9

Bailey v. Novt, 112 5. G2. SRR0 Gilead + cscs ca cesnnacn 3, 4

Beebe v. Phelps, 650 F.2d 774 (5th Cir. 1981)........... 6

Browning v. Navarro, 894 F.2d 99 (5th Cir. 1990) ...... 2

Burnside v. White, 760 F.2d 217 (6th Cir. 1985)........ 6

Calder . Belli, 3 EA. Fe. Gare hsbc w ke cack vcteniess 4

Collins v. Youngblood, 110 S. Ct. 2715 (1990). ..1, 2, 3, 4, 10

Dobbert v. Florida, 432 U.S. 282 (1971) ................ 7

Fender v. Thompson, 883 F.2d 303 (4th Cir. 1989) ....6, 7

Holly v. Seminole County School Dist., 763 F.2d 399

thi se | Ree remedy (S25. ee ieee 2

Lindsay v. Washington, 301 U.S. 397 (1937)............ 6

Rodriguez v. United States Parole Commission, 594

FOR SFR CU Gs Wa rth ak Ven cesner ns eae esa 6, 7,9

Rooney v. North Dakota, 196 U.S. 319 (1905)........... 5

Royster v. Fauver, 775 F.2d 527 (3d Cir. 1985)......... 9

Schwartz v. Muncy, 834 F.2d 396 (4th Cir. 1987)....... 6

Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977) ......... 6

iii

TABLE OF AUTHORITIES —- Continued

Page

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S.

LLL bah vee.ds A Se nse sak eas 5

Weaver v. Graham, 450 U.S. 24 (1981)................. 7

Yamamoto v. United States Parole Commission, 794

EG | ee re 9

Youakim v. Miller, 425 U.S. 231 (1976)................. 3

STATUTES

a Oe ree 8

OTHER

Rule 475-3-.05, paragraph 2, Rules of the Georgia

Board of Pardons and Paroles .................+... 9

STATEMENT OF THE CASE

By order of the Honorable J. L. Edmondson, Judge,

United States Court of Appeals for the Eleventh Circuit,

dated April 19, 1991, the undersigned, R. Scott Tewes,

was appointed as counsel for Respondent, Isaac Graham,

pursuant to Eleventh Circuit Addendum 5 to file a sup-

plemental brief on his behalf, to present oral arguments,

and to represent him in further proceedings before that

Court. Respondent was granted leave to proceed in forma

pauperis by the United States Court of Appeals for the

Eleventh Circuit.

The Petitioner’s Statement of the Case outlines the

general history of the case. The additional facts contained

in the opinion below, Graham v. Snow, No. 90-8660 (11th

Cir. 1992) (Petitioner’s Appendix A), are incorporated by

reference.

REASONS FOR DENYING THE WRIT

A. THE QUESTIONS PRESENTED BY THE PETI-

TIONER WERE NOT FULLY BRIEFED AND

ARGUED BELOW.

This case is inappropriate for certiorari because the

Petitioner did not fully brief and argue before the Elev-

enth Circuit panel the questions presented here. The cor-

nerstone of Petitioner’s argument before this Court is that

Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991), the case

principally relied upon by the Eleventh Circuit panel in

deciding Graham, is inconsistent with this Court’s deci-

sion in Collins v. Youngblood, 110 S. Ct. 2715 (1990). Yet in

his principal brief in the Eleventh Circuit, Petitioner

made only a passing reference to Collins: “In fact, the

Akins decision is contrary to the recent Supreme Court

decision of Collins v. Youngblood, 497 U.S. __, 110 S. Ct.

2715 (1990), which defined the parameters of the ex post

facto clause so as to exclude parol eligibility from its

scope.” Brief of Appellees at 8, Graham v. Snow, No.

90-8660 (11th Cir. 1992). In its “Statement of the Issues”

below, Respondent not only failed to raise any inconsis-

tency between Akins and Collins, but stated that, in light

of Akins, there was nothing to argue:

There are no issues before this Court, Defen-

dants concede that this case is controlled by the

recent Eleventh Circuit decision in Akins v.

Snow, 922 F.2d 1558 (11th Cir. 1991).

Id. at 2. Consequently, the panel observed that “[t]he State

conceded in a supplemental brief and at oral argument |

that Akins controls this case.” Graham v. Snow, No. 90-8660

(11th Cir. 1992) (Petitioner’s Appendix A at 4a).

Petitioner first briefed the questions presented for

review by this Court in its Petition for Rehearing. Petition

for Rehearing at Suggestion of Rehearing En Banc on

Behalf of Appellees, Graham v. Snow, No. 90-8660. The

Eleventh Circuit was not required to address issues pre-

sented for the first time in a petition for rehearing. Holly

v. Seminole County School Dist., 763 F.2d 399, 400-01 (11th

Cir. 1985); accord Browning v. Navarro, 894 F.2d 99, 100 (5th

Cir. 1990).

This Court should not exercise its discretion to

review the decision of a panel before which the questions

now raised were never fully presented. Youakim v. Miller,

425 U.S. 231, 234 (1976).

B. THIS COURT RECENTLY HAS DECLINED TO

REVIEW BOTH ISSUES ADVANCED BY PETI-

TIONER.

The Petition for Writ of Certiorari should be denied

because this Court recently has declined to review both

issues advanced by Petitioner. This case presents nothing

new to warrant review of those issues now.

Petitioner first argues that the Eleventh Circuit erred

in relying on Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991),

because the Supreme Court in Collins v. Youngblood, 110 S.

Ct. 2715 (1990), expressly overruled the standard used in

Akins to determine whether the rule at issue violated the

ex post facto clause of the United States Constitution.

Petitioner made the same argument in a petition for writ

of certiorari in June 1991 following the Eleventh Circuit's

decision in Akins. This Court appropriately denied the

petition. Akins v. Snow, 111 S. Ct. 2915 (1991).

Petitioner next argues that a parole board rule that

fixes the time for an inmate’s parole reconsideration

review is not a “law” subject to the ex post facto clause of

the United States Constitution. Petitioner relies on Bailey

v. Gardebring, 940 F.2d 1150 (8th Cir. 1991), in an attempt

to show a conflict among the circuits on this issue. In

March 1992, this Court denied a petition for writ of

certiorari to review Bailey and its interpretation of what is

a “law” within the meaning of the ex post facto clause.

Bailey v. Noot, 112 S. Ct. 1516 (1992). The asserted conflict

with Akins’ interpretation of the meaning of the term

“law” as used in the ex post facto clause existed when the

Court denied certiorari in Bailey; therefore, the Eleventh

Circuit’s decision in this case presents nothing new for

the Court to decide.

In short, none of the facts or circumstances of this

case make it more appropriate for review by this Court

than Akins or Bailey.

C. THE DECISION OF THE ELEVENTH CIRCUIT IS

CONSISTENT WITH COLLINS V. YOUNGBLOOD,

OTHER DECISIONS OF THIS COURT, AND THE

DECISIONS OF OTHER CIRCUIT COURTS.

In Collins v. Youngblood, 110 S. Ct. at 2719, this Court

reaffirmed the understanding of the ex post facto clause

set forth in Calder v. Bull, 3 Dall. 386 (1798). The ex post

facto clause is violated by “every law that changes the

punishment, and inflicts a greater punishment, than the law

annexed to the crime, when committed.” Id. at 390.

There is no dispute that when Respondent committed

the crimes for which he was convicted, the rules of the

Georgia State Board of Pardons and Paroles (the “Board”)

provided that prisoners serving life sentences would be

eligible to be considered for parole after seven years and,

if denied, reconsidered annually thereafter. In 1985 the

rule on eligibility for reconsideration was changed to the

substantial detriment of Respondent. When he committed

the crimes for which he received life sentences, the Board

was required to reconsider him for parole annually after

an initial denial. Now the Board is required to consider

him no more frequently than every eight years. Respon-

dent has made no claim of a right to parole or a “liberty

interest” in parole. His position, and that of the Eleventh

Circuit, is that the 1985 change in the Board’s rule on

eligibility for reconsideration after an initial denial was a

substantial increase in his punishment.

It has long been accepted that parole eligibility may

be considered part of the punishment for a crime and that

retrospective changes in parole eligibility rules make

punishment more burdensome in violation of the ex post

facto clause. In Warden, Lewisburg Penitentiary v. Marrero,

417 U.S. 653, 658 (1974), this Court stated:

Although, of course, the precise time at which

the offender becomes eligible for parole is not

part of the sentence . . . , it is implicit in the

terms of the sentence. And because it could not

be seriously argued that sentencing decisions

are made without regard to the period of time a

defendant must spend in prison before becom-

ing eligible for parole, or that such decisions

would not be drastically affected by a substan-

tial change in the proportion of the sentence

required to be served before becoming eligible,

parole eligibility can be properly viewed as

being determined - and deliberately so — by the

sentence of the District Judge.

In dictum this Court went on to state that “a repealer of

parole eligibility previously available to imprisoned

offenders would clearly present the serious question

under the ex post facto clause . . . of whether it imposed a

‘greater Or more severe punishment than was prescribed

by law at the time of the. . . offense.” 417 U.S. at 663

(quoting Rooney v. North Dakota, 196 U.S. 319, 325 (1905)).

Numerous circuit courts addressing changes in

parole eligibility have concluded that such changes

amount to an increase in punishment. See Schwartz v.

Muncy, 834 F.2d 396, 398 (4th Cir. 1987) (“The fixing of his

parole eligibility date, which was part of his punishment,

could not constitutionally be made ‘greater or more

severe.’ ”); Burnside v. White, 760 F.2d 217, 220 (6th Cir.

1985) (“There is no question that a new parole statute

may alter the consequences attached to a crime for which

a prisoner has already been sentenced; to the degree that

a statute does so, it has retrospective effect.”); Rodriguez v.

United States Parole Comm'n, 594 F.2d 170 (7th Cir. 1979)

(change in parole review increasing time before which

prisoner could be considered for review violated ex post

facto clause); Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir.

1977) (“Since parole eligibility is considered an integral

part of any sentence, official post-sentence action that

delays eligibility for supervised release runs afoul of the

ex post facto proscription.”); see also Lindsay v. Washing-

ton, 301 U.S. 397, 401 (1937); Beebe v. Phelps, 650 F.2d 774,

775 (5th Cir. 1981).

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

emphasizes the constitutional significance of a change in

eligibility for parole regardless of whether granting

parole is totally discretionary. As in this case, Fender did

not argue whether he should or should not be paroled,

but simply challenged the denial of his right to eligibility

for parole consideration. The Fourth Circuit found an ex

post facto clause violation because “the retrospective

application of a statute modifying or revoking parole

eligibility would ’ . . . substantially alter the consequences

attached to a crime already completed and therefore

change the “quantum of punishment.” ’” Fender v.

Thompson, 883 F.2d at 305-06 (quoting Weaver v. Graham,

450 U.S. 24, 33 (1981), and Dobbert v. Florida, 432 U.S. 282,

293-94 (1971)).

Though, in this case, Mr. Graham was not denied

every opportunity for parole, the rule still changed to

make his punishment more burdensome. When sen-

tenced, Mr. Graham was entitled to be considered for

parole after seven years and reconsidered annually there-

after. The Board subsequently changed its rules to pro-

vide that he need not be reconsidered more frequently

than every eight years. There is a substantial difference

between mandated reconsideration annually and manda-

ted reconsideration once every eight years. See Rodriguez

v. United States Parole Comm'n, 594 F.2d 170, 176 (7th Cir.

1979). It is the change in the rules applied after the

commission of the crime, after conviction, after sentenc-

ing, and after service of a substantial portion of the

sentence that violates the ex post facto clause. See Weaver

v. Graham, 450 U.S. 24, 30-31 (1981).

D. THE ELEVENTH CIRCUIT’S HOLDING THAT

THE PAROLE RULE AT ISSUE IS A “LAW” SUB-

JECT TO THE EX POST FACTO PROVISIONS OF

THE UNITED STATES CONSTITUTION DOES

NOT CREATE A CONFLICT WITH DECISIONS

OF OTHER CIRCUIT COURTS ADDRESSING

THE LEGAL STATUS OF SIMILAR RULES.

The Eighth Circuit’s decision in Bailey v. Gardebring,

940 F.2d 1150 (8th Cir. 1991) is not in conflict with the

Eleventh Circuit’s decisions in Graham and Akins because

the decisions are distinguishable on their facts. Petitioner

cites Bailey for the broad proposition that regulations

governing the exercise of the power to grant or deny

parole are not laws within the meaning of the ex post

facto clause. However, the holding of the Eighth Circuit

that Minnesota’s parole regulations were not laws for ex

post facto purposes was premised on the conclusion that

the decisions of the state agencies to promulgate parole

regulations were discretionary decisions. “[(NJeither

[agency] was required by law to issue specific regula-

tions.” Bailey v. Gardebring, 940 F.2d 1150, 1156.

In contrast, Graham and Akins address the constitu-

tionality of a change in a rule that the Georgia Board of

Pardons and Paroles was required to make. Georgia law

mandates that the Board promulgate rules and regula-

tions that “ ‘contain an eligibility requirement for parole

which shall set forth the time when the automatic initial

consideration for parole of inmates under the jurisdiction

of the Department of Corrections shall take place and also

the times at which periodic reconsideration thereafter

shall take place.’” Akins v. Snow, 922 F.2d 1558, 1561

(quoting O.C.G.A. § 42-9-45 (1989)). The Eleventh Circuit

reasoned that the rule that modified the timing of parole

reconsideration obviously would have been subject to the

ex post facto clause had it been passed by the Georgia

legislature. The court concluded that the mandate to the

Board to set the time for parole consideration and recon-

sideration was “quasi-legislative” in nature and, there-

fore, had the force and effect of law. Thus, the Board

lacked the broad discretion with respect to the timing of

parole consideration and reconsideration of the agencies

whose regulations were at issue in Bailey. The cases

addressing federal parole guidelines cited in Bailey are

likewise distinguishable. See Bailey v. Gardebring, 940 F.2d

1150, 1158-59 (Lay, C.J., dissenting).

The Eleventh Circuit’s decision in Graham and Akins

also are consistent with decisions of other circuits that

have held parole regulations to be laws for purposes of ex

post facto clause analysis. See Yamamoto v. United States

Parole Comm'n, 794 F.2d 1295, 1300-01 (8th Cir. 1986)

(“adverse changes in the frequency with which a prisoner

may be considered for parole or in the time at which a

prisoner first becomes eligible for parole consideration may

also violate the ex post facto clause”); Royster v. Fauver,

775 F.2d 527, 534 (3rd Cir. 1985) (holding that parole

regulations may be laws for purposes of ex post facto

analysis); Rodriguez v. United States Parole Comm’n, 594

F.2d 170, 174 (7th Cir. 1979) (administrative rule may be

considered an extension of a statute for purposes of the

ex post facto clause).

aa

CONCLUSION

This is a simple case that affects a relatively small

number of people. In addition to Respondent Graham,

those who are affected by the Eleventh Circuit’s decision

are inmates serving life sentences in the State of Georgia

for crimes committed prior to the effective date in 1985 of

the amendment to Rule 475-3-.05, paragraph 2 of the

Rules of the Georgia Board of Pardons and Paroles. The

relief that the State must grant under the Eleventh Cir-

cuit’s ruling is to provide an opportunity for reconsidera-

tion for parole of each such inmate in accordance with the

10

rule in effect at the time of the crime of which he was

convicted. Any inmate serving a life sentence for a crime

committed after the effective date of the 1985 rule need be

considered no more frequently than every eight years

after an initial review and denial.

The decision of the Eleventh Circuit is consistent

with this Court’s holding in Collins v. Youngblood, and

with the decisions of other circuit courts. Therefore, it is

respectfully submitted that the Petition of Writ of Cer-

tiorari should be denied.

Respectfully submitted,

R. Scotr Tewes

Kitpatrick & Copy

3100 Equitable Building

100 Peachtree Street

Atlanta, GA 30303

(404) 572-6500

Counsel for Respondent