Opposition Brief — Class v. Williams

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! Bavtens

FEB 16 1995

| pane of GE ome

Docket No.94-1289

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

JOE CLASS, WARDEN, SOUTH DAKOTA STATE PENITENTIARY, AND

MARK W. BARNETT, ATTORNEY GENERAL, STATE OF SOUTH DAKOTA,

Petitioners,

vs.

WILLIE WILLIAMS, III,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

DOUGLAS E. HOFFMAN

Counsel of Record

GIBBS, FEYDER, MYERS,

PETERS & HOFFMAN

Attorneys for Respondent

P. O. Box 1085

Sioux Falls, SD 57101-1085

(605) 336-3700

QUESTION PRESENTED

WHETHER THE EX POST FACTO CLAUSE PROHIBITS REVOCATION OF AN

INMATE'S GOOD TIME CREDITS AS PUNISHMENT FOR A PAROLE VIOLATION,

UNDER STATUTORY AUTHORITY ENACTED IN 1983, WHICH WAS AFTER THE

INMATE'S 1981 CRIMINAL CONVICTION, BUT WAS PRIOR TO HIS 1987

PAROLE VIOLATION?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...... cece cc ccc ccccrccrccces 1

ye Soe Ble BP ty, * by 8 : eer ee ye ee ee 1il

RELEVANT STATUTORY PROVISIONS .....2. cc cccccccccece 2

STATEMENT OF THE CASE .. cc ccccsccccccscvccsscvcecs 5

SUMMARY OF ARGUMENT 2. cc cc ccc ccc ccc ccc sccccessceses 8

DIE nn on cc cence tc reese chet eretsetassnaweseass 10

1. The Circuit Court Decision Below is Correct 10

2. There is No Legitimate Basis to Grant

Cexctiovrari iss CRAG CABO 2. cseciescccssicven 16

COREE n-wicceew bh nese en be Keene 68S a eee ee eee rw |

Cases Cited: Page

Bailey v. Gardebring, 940 F.2d 1150,

rs ek ee ke we Cee eae ee eee 17

Beazell v. Ohio, 269 U.S.2d 167, 169-70 (1925)... 9

Beebe v. Phelps, 650 F.2d 774 (5th Cir. 1981) ..10, 14, 20

Cavanaugh v. Roller, 984 F.2d 120 (4th Cir. 1993)

cert. dismissed, 126 L.Ed.2d 409 (1993) ..... 16

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

Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993) ..... 17

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

Garner v. Howell, 840 F.2d 660 (8th Cir. 1988)... 21

Greenfield v. Scafati, 277 F.Supp. 644 (D. Mass. 1967)

aff'd mem. 390 U.S. 713, 88 S.Ct. 1409,

Ue RR a | eee ee eee rene passim

Humphrey v. Cady, 405 U.S. 504 (1972) ............ 16

Munger v. Erickson, 979 F.2d 1323 (8th Cir. 1992) 21

Schwindling v. Smith, 777 F.2d 431 (8th Cir. 1985) 21

State v. Bermudze, 974 F.2d 12 (2nd Cir. 1992) ... 20

United States v. Blackston, 940 F.2d 877

les RR OS eee ee a eee 20

United States v. Celestine, 905 F.2d 59

Re ws nea Nines & Uke ee Oke 20

United States v. Green, 810 F.2d 999 (llth Cir. 1986) 20

United States v. Paskow, 11 F.3d 873

ee ES 6s We ea ee Pe a ae oie 6b 6 bale 10, 135, 26

United States v. Patterson, 820 F.2d 1524

I ARE. iin oc cada obs bea eae 6 eo ea ede e A 20

United States v. Schramm, 9 F.3d 741 (9th Cir. 1993) 19

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

-iii-

Williams, In re Revocation of the Parole of,

488 N.W.2d 667, 669 (SD 1992) ............... passim

Yamamoto v. Parole Commission, 794 F.2d 1294

a er a 10, 16

Statutes Cited:

ee EE Vcc esc a teeters cee ree eweenreseceneues 16

te PRT bases see w eee eers es eversewsvosecenecs 9

Se EOE Gude Gb eho es cence ere swears seccceseress 9

ot a DE ee er eee a ee ee er 6,939,147

Bs ORO EE bcs bb era ter ar de tegen seacsesersseness 5

Ce AR EE SE ee ae eee a ee ee ee ee passim

Other:

United States Constitution at Article I, §10 ..... 10

1983 South Dakota Session Law, Ch. 201 ............ 8,9

Docket No. 94-1289

IN THE :

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994 8

JOE CLASS, WARDEN, SOUTH DAKOTA STATE PENITENTIARY, AND

MARK W. BARNETT, ATTORNEY GENERAL, STATE OF SOUTH DAKOTA,

Petitioners,

vs.

WILLIE WILLIAMS, III,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE SUPREME COURT:

The Respondent, Willie Williams, III, respectfully requests

that this Court deny the Petition for Writ of Certiorari submitted

by the Petitioners, Joe Class, Warden, South Dakota State

Penitentiary, and Mark W. Barnett, Attorney General, State of

South Dakota.

RELEVANT STATUTORY PROVISIONS

SDCL §24-5-1

Every inmate sentenced for any term less than

life..., subject to the provisions of §§24-2-

17 and 24-2-18, is entitled to a deduction of

four months from his sentence for each year

and pro rata for any part of a year for the

first year to the tenth, and six months for

the tenth year and for each year thereafter

until the expiration of the period of the

sentence as pronounced by the Court, for good

conduct.

SDCL §24-5-2

Whenever any inmate has been discharged under

the provisions of §24-5-1, he shall at the

time of his discharge be considered as

restored tc the full rights of citizenship

At the time of the discharge of any inmate

under the provisions of this chapter, he s

receive from the Secretary of Corrections a

certificate stating that he has been restore

to the full rights of a citizen. If an inmat

r—)

is on parole at the time he becomes eligible

for discharge, the Secretary of Corrections

shall issue a like certificate, which shall be

due notice that such inmate has been restored

to the full rights of a citizen.

SDCL §24-15-13

Parolees shall at all times be considered

confined, in the legal custody of the warden

of the penitentiary and shall remain under

conviction for the crime for which they were

convicted and sentenced.

SDCL §24-15-1.1

Parole is the discretionary conditional

release of an inmate from actual penitentiar

custody before the expiration of his term of

imprisonment. The prisoner remains an inmate

under the legal custody of the Department of

Charities and Corrections until the expiration

of his term of imprisonment.

SDCL §24-2-17

The warden of the penitentiary shall keep a

true record of the conduct of each convict,

specifying therein each infraction of the

rules of discipline. Each convict shall be

notified of every entry on his record of each

such infraction of the rules of discipline and

shall have thirty days to challenge the

validity of the entry or the disciplinary

sanction imposed by notifying the warden

thereof. After investigation, the warden may

remove the entry or modify the imposed

disciplinary sanction. Such record shall be

used whenever the question of any convict's

eligibility for parole or discharge shall

arise under and by virtue of SDCL §24-5-1.

SDCL §24-2-18 E

The warden may, at any time prior to a

convict's final discharge, consider

recommendations of the Disciplinary Committee

pertaining to the withholding of statutory

time granted for good conduct and may

recommend to the Board of Charities and

Corrections that the reduction of time for

good conduct under and by virtue of §24-5-1 be

withheld in full or in part. The Board shall,

after hearing, then fix the amount of time

earned by good conduct to be withheld. The

Gecision of the Board is final.

1978 South Dakota Session Law, Ch. 186 §30

The Executive Director of the Board of Pardons

and Paroles may issue an Order to Show Cause

why parole should not be revoked whenever he

or the Board is satisfied that:

(1) a parolee is violating or has violated the

regulations or restrictions that are placed

upon him by the Board;

(2) a parolee has failed to report himself to

the Office of Correctional Services;

(3) a parolee has failed to answer inquiries

made by the Office of Correctional Services;

(4) the purposes or objects of parole are not

being served.

1978 South Dakota Session Law, Ch. 186 §31

The Executive Director shali issue a warrant

co the warden of the penitentiary, any law

enforcement officer, or any parole agent of

the Office of Correctional Services, directing

that the parolee named be arrested and

returned to the state penitentiary under the

terms of his original conviction and sentence,

pending a hearing on the alleged violations.

[T]he parolee is to be returned to the

penitentiary, there to be held for a hearing

to be held before the Board of Pardons and

Paroles to determine whether the parole should

be revoked. ...If the Board is satisfied that

1983 South Dakota Session Law, Ch. 201

If the Board of Pardons and Paroles is

satisfied that any provision of §24-15-20 has

been violated, it may revoke the parole and

reinstate the terms of the original sentence

and conviction. In addition, the Board is

authorized to order the reduction of time in

full or in part for good conduct granted under

§24-5-1. If the Board does not find that the

provisions of §24-15-20 have been violated, it

may restore the parolee to the original terms

and conditions of his parole.

1986 South Dakota Session Law, Ch. 209

If the Executive Director of the Board is

satisfied that any provision of §24-15-20

been violated, the Executive Director may

issue a warrant to the warden of the

penitentiary, any law enforcement officer, or

parole agent of the Office of Correctional

Services, directing that the parolee named be

arrested and returned to the state

penitentiary under the terms of his original

conviction and sentence, pending a hearing on

the alleged viclations. Upon the issuance of

the warrant, the running of the parole

supervision time shall be suspended until the

Board has entered its final order on the

revocation. The Board shall credit the inmate

with time spent in custody as a direct result

of the parole violation.

STATEMENT OF THE CASE

The single question presented by the Petitioners is “whether :

the ex post facto clause prohibits revocation of an inmate's good z

time credits as punishment for a parole violation, under statutory

authority enacted in 1983, which was after the inmate's 1981

criminal conviction, but was prior to his 1987 parole violation." %

A second issue was litigated before the District Court below, to-

wit: ;

Whether application of SDCL §24-15-21 to toll E

the running of Respondent's sentence upon the =

issuance of the parole violation warrant on

February 2, 1988, constituted the A

unconstitutional application of an ex post #

facto law. %

Respondent's good time release date was October 14, 1990. His

parole revocation hearing occurred over six months later on April

26, 1991. The legisiation providing that the issuance of a parole

violation warrant would toll the running of parole supervision

time was enacted in 1986, five years after Respondent's original

conviction.

In granting the writ of habeas corpus, the District Court

ruled in favor of Respondent, holding that application of the

tolling provision was ex post facto. Because the sentence was

fully served prior to the revocation of the good time credits, the

revocation was ineffectual. Therefore, the District Court granted

the Writ of Habeas Corpus and ordered that Respondent be released

from the penitentiary.

In addition, the District Court ruled in Respondent's favor

on the question presented before this Court. The change in South

Dakota statutory law which provided for revocation of good time

credits as a sanction for a parole violation was enacted in 1983,

again after Respondent's original conviction. The District Court

held that application of this legislation to the Respondent was

retrospective and prejudicial to Respondent. Consequently, the

District Court ruled that Respondent was entitled to habeas relief

on that issue as well.

b .

On appeal, the United States Court of Appeals fo

Circuit affirmed the District Court's ruling that the good time

credit statute, as applied to Respondent, was ex post facto. The

Eighth Circuit found it unnecessary to reach the tolling statute

issue and thus expressly declined to consider it. This Petition

for Writ of Certiorari, therefore, only seeks review of the good

time credit matter, as set forth by the Petitioners in their

Question Presented. Respondent's arguments will thus be confined

to that issue.

The Respondent, Willie Williams, III, was convicted of first

degree rape in Pennington County, South Dakota, on December 1v

1981, and sentenced to fifteen years in the state penitentiary.

Respondent's pre-trial detention began on October l4, 1981, and

therefore, with credit for time served, his “straight time"

release date was October 14, 1996. As reflected in the South

Dakota State Penitentiary Entrance Record and Date Calculation

Review document, Respondent was granted six years good time credit

pursuant to SDCL §24-5-1, advancing his release date to October

i a

LitlaAalms

14, 1990. See In re Revocation of the Parole of Willie

III, 488 N.W.2d 667, 669 (SD 1992).

Respondent was paroled on December 21, 1984, and subsequently

returned to his home state of South Carolina, where he was

supervised by local authorities pursuant to the Interstate Compact

for Supervision of Parolees. He entered into business there and

an IRS lien was imposed on the business. As a result of the lien,

one of his business checks to Southern Bell Telephone did not

clear the bank, resulting in Respondent's arrest on the charge of

writing a fraudulent check. Respondent received a one year

sentence, suspended, with probation and restitution in the amount

of the check and 120 hours of public service.

On December 8, 1987, Respondent was arrested in Charleston

County, South Carolina, on a charge of first degree murder

relating to a homicide which allegedly occurred in March of 1986.

He was taken into custody and held pending trial. A warrant for

the arrest of Respondent for an alleged violation of parole,

predicated upon the fraudulent check conviction, was issued by the

South Dakota Board of Pardons and Paroles on February 2, 1988.

However, no disposition of the warrant was attempted at that time.

In May of 1988 Respondent stood trial in South Carolina and was

convicted of the murder charge, and thereafter was sentenced to

life imprisonment.

On January 7, 1991, Respondent's murder conviction was

reversed by the South Carolina Supreme Court, and the case was

remanded for a new trial. Respondent remained in custody,

however, as a pretrial detainee. On February 26, 1991, South

Dakota issued a detainer message to South Carolina relating to the

February 2, 1988 arrest warrant. When, in March of 1991,

Respondent posted bond for release pending re-trial in South

Carolina, he was detained pursuant to the warrant and returned to

South Dakota. A parole revocation hearing was held in Sioux

Falls, South Dakota, on April 26, 1991, after which the Board of

Pardons and Paroles entered the following Order:

[(T]hat the parole heretofore granted by tiie

Board of Pardons and Paroles to Willie

Williams, III, on the 16th day of November,

1984, be hereby revoked with the loss of six

(6) years good time; no dead time.

Pursuant to said Order, Respondent was remanded to the South

Dakota State Penitentiary to be incarcerated there until October

14, 1996. Following unsuccessful appeals to the South Dakota

Circuit Court and South Dakota Supreme Court, Respondent was

released pursuant to the United States District Court's Writ of

Habeas Corpus which was granted July 26, 1993 and affirmed by the

United States Court of Appeals on August 31, 1994. Petitioners’

suggestion for a rehearing en banc and Petition for rehearing by

the panel were both denied by the Circuit Court on October 20,

1994.

SUMMARY OF ARGUMENT

Respondent's good time release date was October 14, 1990.

Under South Dakota law, Respondent's sentence expired on that date

unless the 1983 amendment to SDCL §24-15-24 (1983 South Dakota

Session Law, Ch. 201), authorizing the parole board to revoke good

time credits as a sanction for a parole violation, could be

applied to him without violating the ex post facto clause. Im re

Williams, 488 N.W.2d 667, 669 (SD 1992). At the parole revocation

hearing which was held on April 26, 1991, the parole board revoked

Respondent's parole with the loss of six years good time. But for

the taking of those six years of good time credits, Respondent's

sentence expired on October 14, 1990. SDCL §24-5-1; In re a

Williams, supra, at 669.

It is undisputed that at the time of Respondent's underlying i

conviction there was no provision under South Dakota law granting

the Board of Pardons and Paroles or any other entity the authority

to revoke a prisoner's statutorily granted good time credits as a 3

sanction for a parole violation. See In re Williams at 670. |

Rather, good time credits could be revoked only within the strict

confines of a statutory criteria set forth at SDCL §24-2-17 and

§24-2-18. None of the predicates to the withholding of good time

credits under those statutes ever occurred in Respondent's case.

In Collins v. Youngblood, 497 U.S. 37 (1990), the United

States Supreme Court held that “any statute...which makes more

burdensome the punishment for a crime after its commission...is

prohibited as ex post facto." Id. at 42, quoting Beazell v. Ohio,

269 U.S.2d 167, 169-70 (1925). Indeed, this constitutional

prohibition is addressed to laws, whatever their form, which

increase punishment. Id. The issue before this Court is whether

application of SDCL §24-15-24, as amended by 1983 Session Law Ch.

201, to Respondent works to increase his punishment for the crime

of rape, for which he was convicted and sentenced on December 10,

1981. The answer to this question is clear. Absent application

of the 1983 amendment, Respondent's sentence expired on October

14, 1990. If the statute is applied, six years of good time

credits are revoked, extending his sentence to October 14, 1996.

The net result is that Respondent's punishment was increased by

six years.

Given that, under the South Dakota statutes existing at the

time of Respondent's conviction and sentence, the state had no

authority to withhold Respondent's good time credits as a sanction

for a parole violation, it fellows that application of SDCL §24-

15-24, as amended in 1983, to Respondent constitutes the

unconstitutional application of an ex post facto law. Weaver v.

Graham, 450 U.S. 24 (1981); Greenfield v. Scafati, 277 F.Supp. 644

(D. Mass. 1967), aff'd mem. 390 U.S. 713 (1968); United States v.

Paskow, 11 F.3d 873 (9th Cir. 1993); Fender v. Thompson, 883 F.2d

303 (4th Cir. 1989); Yamamoto v. Parole Commission, 794 F.2d 1294

(8th Cir. 1986); Beebe v. Phelps, 650 F.2d 774 (5th Cir. 1981).

All of the United States Courts of Appeals which have addressed

analogous situations have ruled in accordance with the decision of

the Eighth Circuit below, which is dictated by the precedent of

this Court. There is no cognizable issue worthy of the Writ of

Certiorari and the Petition therefore should be denied.

ARGUMENT

1. ; >; ‘ ee ;

The United States Constitution a_ Article I, §10 states that

"In]Jo state shall...pass any...ex post facto law." The seminal

case interpreting the federal ex post facto clause 1s Weaver v.

Graham, 450 U.S. 24 (1981). The issue in Weaver was whether a

-Florida statute, enacted after the defendant's conviction and

which reduced the availability of good time credits to inmates,

was unconstitutional as an ex post facto law when applied to him.

450 U.S. at 25. Therein, the United States Supreme Court made

clear that the ex post facto prohibition forbids states to enact

any law which imposes "punishment more severe than the punishment

assigned by the law when the act to be punished occurred." Id. at

28, 30. In Weaver, this Court set forth the following test for

analyzing ex post facto claims:

[T]wo critical elements must be present for a

criminal or penal act to be ex post facto: it

must be retrospective, that is, it must apply ;

to events occurring before its enactment, and :

it must disadvantage the offender affected by

Id. at 29. The Court explicitly held that a law need not impair a

vested right to violate the ex post facto clause. Id. Rather,

critical to relief under the ex post facto clause is not an

individual's right to less punishment, but lack of fair notice and

governmental restraint when the legislature increases punishment

beyond what was prescribed when the crime was committed. Id.

Thus, even if the 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. Id. at 30-31.

In the Petition for Writ of Certiorari, Petitioners embrace

the holding of the South Dakota Supreme Court in this matter below

to the effect that the 1983 amendment to SDCL §24-15-24 was not

applied retrospectively to Respondent, based upon the following

argument:

The 1983 statute authorized the Board to

reduce an inmate's good time credits for

parole violations. This 1983 statute was

enacted and in effect when Williams was

paroled in 1984. ...[T]here was no

retrospective application of the 1983 statute.

In re Williams 488 N.W.2d 667, 670 (SD 1992). The South Dakota

Supreme Court did not cite any authority for this holding. Nor

could it. The holding is clearly contradicted by controlling

United States Supreme Court decisions. This was recognized by the

District Court and the Circuit Court below in their well-reasoned

decisions granting the writ.

Petitioners' interpretation of "retrospective" is refuted by

the United States Supreme Court in Weaver v. Graham. In Weaver,

the petitioner pleaded guilty to second degree murder on January

31, 1976. Id. at 450 U.S. 25. On January 1, 1979, the good time

statute applicable when Weaver was convicted was amended to his

disadvantage. The amended statute was applied to Weaver. The

respondent in Weaver raised a form of the same argument stated by

the South Dakota Supreme Court. That is, because Weaver's good

time credits were calculated under the more restrictive law only

after its enactment, and that good time credits were allotted for

his time served prior to the amendment pursuant to the predecessor

statutes, the law was not retrospective. This argument was

rejected by this Court:

The respondent maintains that Florida's 1978

law altering the availability of gain time is

not retrospective because on its face, it

applies only after its effective date.... This

argument fails to acknowledge that it is the

effect, not the form, of the law, that

determines whether it is ex post facto. The

critical question is whether the law changes

the legal consequences of acts committed

before its effective date. In the context of

this case, the question can be recast as

whether [the 1979 statute] applies to

. er : 1 bef

the provision's effective date. Clearly, the

answer is in the affirmative. The respondent

concedes that the state uses [the statute]

which was implemented on January 1, 1979, to

calculate the gain time available to

petitioner, who is convicted of a crime

occurring on January 31, 1976. Thus. the

6 hed j i j

rim

> guplhiie SARS ee os ae

Id. at 450 U.S. 31 (emphasis added).

In essence, the Weaver court held that it was not material

that the new good time statute was applied to only events which

occurred after its enactment. Rather, the salient issue was that

the statute was applied to a prisoner who was originally convicted

prior to the statute's enactment. |

The above holding was first articulated in Greenfield v.

Scafati, 277 F.Supp. 644 (D. Mass. 1967) aff'd mem., 390 U.S. 713

(1978), where a statute enacted after the inmate's conviction

provided for forfeiture of good time credits for violation of

parole. 277 F.Supp. at 644-45. That is the precise issue raised by

Petitioners herein. The inmate in Greenfield suffered forfeiture

of good time credits because of a parole violation pursuant to a

statute which was enacted after his original conviction, but prior

to the date of his parole. 277 F.Supp. at 645.

The Scafati court held that, because there was no provision

for revocation of good time credits for violation of parole at the

: . ; 1 of bi btm)

application of the amendment to him was both detrimental and

retrospective. 277 F.Supp. at 645-46. Petitioner had no “fair

notice" of this element of the sentence at the time that he

committed the crime for which he was originally convicted. Id.

Therefore, the statute was ex post facto as applied to him. This

decision was affirmed on direct appeal to the United States

Supreme Court by memorandum without written opinion. 390 U.S. at

713. The Greenfield decision was cited with approval by this Court

in Weaver v. Graham. 450 U.S. at 34. Justice Blackman stated

that the Greenfield decision was the controlling precedent that

required his concurrence with the majority opinion in Weaver. Id.

at 37, Blackman, J. concurring.

In an analogous case, the Fifth Circuit Court of Appeals in

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

result. Beebe, like Greenfield, involved the question of whether a

statute enacted after the inmate's conviction, but prior to his

parole, and which provided for forfeiture of good time credits for

violation of parole, was ex post facto when applied to that

inmate. 650 F.2d at 775. The Beebe court rejected an argument

similar to the one raised by Petitioners herein:

The crucial issue here, however, is not that

petitioner had notice that he would forfeit

his accrued good time if he violated parole,

but that the forfeiture provision, which was

passed after the commission of the [underlying

offense], alters his punishment for that

offense to his disadvantage. The forfeiture

is not a punishment for the [offense which

constituted the parole violation]. Rather,

the forfeiture of good time is a sanction that

extends the time remaining on petitioner's

original sentence. The practical effect is a

statutory increase in punishment for the first

offense, enacted subsequent to the commission

of the offense.

It appears that Greenfield v. Scafati, 277

F.Supp. 644 (D. Mass. 1967) aff'd mem. 390

U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968)

controls this case.

Id. at 776.

An analogous issue was recently decided in favor of the

inmate by the Ninth Circuit Court of Appeals in United States v.

Paskow, 11 F.3d 873 (9th Cir. 1993). The issue in Paskow was

whether the ex post facto clause is violated

when a statutory amendment that increases a

penalty to be imposed upon the revocation of

supervised release is applied in a case in

which the underlying offense was committed

before the amendment was adopted but the

conduct that led to the revocation of

supervised released occurred afterwards.

Id. at 875. Although the new sanction in Paskow was not revocation

of good time credits, the legal issue in Paskow is precisely the

same issue presented to the Court herein. Relying upon Greenfield

v. Scafati, the Ninth Circuit stated that "the ex post facto

clause is violated when a parole violator is punished in a way

that adversely affects his ultimate release date under a statute

that was adopted after the violator committed the underlying

offense but before he violated the terms of his parole." Id. at

883. Noting the unanimity of the circuit courts on this issue,

the Paskow court stated:

Circuit courts that have considered the ex

post facto issue have, without exception,

followed Greenfield, holding that the ex post

facto clause is violated when a defendant's

eligibility for release is adversely affected

under a statute that was not in effect at the

time of the defendant's underlying crime, but

was adopted before the defendant committed the

act for which his parole was revoked. Without

exception, the circuit courts that have

considered the ex post facto issue have looked

to the date of the defendant's original

offense, not to the date of the conduct that

led to the punishment for the parole

violation.

Id. at 879. (footnote omitted). Accord, Cavanaugh v. Roller, 984

F.2d 120 (4th Cir. 1993) cert. dismissed, 126 L.Ed.2d 409 (1993) ;

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

Parole Commission, 794 F.2d 1295 (8th Cir. 1986).

Petitioners rely upon Supreme Court Rule 10.1(b) as a reason

for this Court to grant the Petition, on the ground that the

decision of the Court of Appeals for the Eighth Circuit below is

in conflict with the decision of the South Dakota Supreme Court

below on this issue. Petitioners' reasoning would result in

certiorari being granted in virtually every case where a writ is

granted under 28 U.S.C. §2254. Under Humphrey v. Cady, 405 U.S.

504 (1972), a petitioner for federal habeas relief under 28 U.S.C.

§2254 must have exhausted his state court remedies prior to filing

his petition in federal court. The exhaustion requirement mandates

complete exhaustion to the court of last resort in the state where

the inmate is imprisoned. Id. at 516. Therefore, in virtually

every case that a United States Court of Appeals either grants or

affirms a writ of habeas corpus under 28 U.S.C. §2254, the state

court of last resort below will have decided the federal question

which is the basis of the habeas in a way that conflicts with the

circuit court's decision. It is absurd to suggest, as Petitioners

do, that every circuit court decision granting habeas corpus to a

state prisoner should be reviewed by the United States Supreme

Court.

Nor do Petitioners have grounds for certiorari pursuant to :

Supreme Court Rule 10.1(a). All of the decisions which the

Petitioners claim are in conflict with the decision of the Eighth

Circuit below are, upon scrutiny, clearly distinguishable. The

only decision which even comes close is: Ewell v. Murray, 11 F.3d

482 (4th Cir. 1993). Ewell v. Murray, however, is inapposite

because it deals merely with the amendment of state prison

administrative regulations, and not the amendment of statutory

laws as in the case at bar. Id. at 483-84. Administrative

regulations do not rise to the level of laws in the context of ex

post facto jurisprudence, and are not subjected to ex post facto

scrutiny. Bailey v. Gardebring, 940 F.2d 1150, 1156 (8th Cir.

1991). In South Dakota, good time credits are statutorily granted

by SDCL §24-5-1 and, as made clear by the South Dakota Supreme

Court below in In re Williams, 488 N.W.2d 667 (SD 1992), cannot be

revoked absent express statutory authority. Id. at 669. Thus,

the Ewell v. Murray case is not a legitimate ex post facto

precedent and is clearly distinguishable from the case at bar.!

Indeed, it is the decision in Fender v. Thompson, 883 F.2d

303 (4th Cir. 1989), decided four years prior to Ewell, which

1Based upon the above distinctions between legislative acts and

administrative regulations, the Petitioners' prison administration

argument falls short. Petitioners claim that “the impact of the

Eighth Circuit's decision could severely limit the ability of

prison officials to enact or amend rules which proscribe

unsatisfactory conduct within a correctional institution.“ This

is untrue because the ex post facto clause applies only to

legislative acts, not administrative procedures. Bailey v.

Gardebring, supra. Therefore, the Eighth Circuit's decision

herein will not unduly constrict the legitimate regulatory

discretion of prison administrators, so long as that discretion is

exercised within the structure of constitutional legislative

mandates.

controls the ex post facto issue in the Fourth Circuit. Mr.

Fender was convicted of various offenses and sentenced to life

imprisonment in 1973. Id. at 304. At that time the Virginia Code

provided that Fender would become eligible for parole after

serving 15 years of the sentence. Id. In 1985 the state's parole

eligibility statutes were amended to provide that anyone sentenced

to life imprisonment who escaped from prison would lose his parole

eligibility. Id.

In 1987 Fender escaped from custody but was recaptured and

convicted of one count of escape. Id. Thereafter the state

informed him that, because of the 1985 amendment, he was no longer

eligible for parole on his underlying conviction.

On Petition for Writ of Habeas Corpus, Fender argued that

this law, as applied to him, was ex post facto because it

effectively changed his sentence on the original conviction from

life with possibility of parole to life without possibility of

parole. Id. The district court rejected the argument, holding

that the new law was “not an additional punishment retroactively

imposed on Fender for his 1973 crimes. Instead it is a stiffened

penalty for the later crime of escape, which occurred after the

enactment of the statute." Id. This is the precise rationale

espoused by the Petitioners herein.

Citing Weaver v. Graham, the Fourth Circuit held that the

1985 law was retrospectively applied to Fender because it

expressly rescinded his pre-existing parole eligibility for the

underlying conviction, on account of conduct which would not have

resulted in the same sanction under the law existing at the time

of the original offense. Id. at 305. The court further held that

such retrospective application of a statute modifying or revoking

parole would, for prisoners who committed crimes before the

statute's enactment, substantially alter the consequences attached

to a crime already completed, in violation of the ex post facto

clause. Id. at 306.

In Fender, as here, the government sought to avoid this

conclusion by arguing that the new law did not operate

retrospectively, because it was enacted before his escape and

Fender, therefore, had “fair notice" of the potential consequences

of such action. Id. Citing Greenfield v. Scafati, the Fender

court held that, despite this “form over substance" argument, the

“practical effect is a statutory increase in punishment for the

first offense, enacted subsequent to the commission of the

offense." Id. at 307. The Petition for Writ of Habeas Corpus was

granted. Id.

Like the amendment in Fender, the 1983 amendment to SDCL §24-

15-24 expressly granted authority to the parole board to revoke

Respondent's pre-existing good time credits relating to the

underlying conviction on account of conduct which would not have

resulted in the same sanction under the laws existing at the time

of the original offense. Therefore, per the Fender decision, the

law in the Fourth Circuit is in accord with the Eighth Circuit

decision below.

The other cases cited by the Petitioners in support of their

Petition are all manifestly irrelevant to the issues before this

Court. United States v. Schramm, 9 F.3d 741 (9th Cir. 1993) is

distinguishable because the sanction which Schramm received for

the violation of his supervised release was available under the

legislation existing at the time of his underlying offense and

conviction. Therefore, he was not disadvantaged by the amended

legislation. It should be pointed out that United States v.

Paskow, supra, which is directly on point and supports the

Respondent's arguments in the case at bar, was decided shortly

after Schramm by the same court. The Paskow court distinguished

Schramm at page 882, footnote 12.

Also, State v. Bermudze, 974 F.2d 12 (2nd Cir. 1992), cited

by Petitioners is distinguished by the Paskow court at page 881,

footnote 10.

In United States v. Blackston, 940 F.2d 877 (3rd Cir. 1991),

and United States v. Celestine, 905 F.2d 59 (5th Cir. 1990), there

were no ex post facto clause issues. Both cases involved the

imposition of sanctions for violations of supervised release which

were consistent with the laws existing at the time of the

underlying offenses. It should be noted that the relevant holding

from the Fifth Circuit is Beebe v. Phelps, 650 F.2d 774 (5th Cir.

1981).

Again, there is no ex post facto clause issue in the case of

United States v. Green, 810 F.2d 999 (llth Cir. 1986), contrary to

the assertion of the Petitioners. In Green the amended

legislation which enhanced Green's sentence for the crime of being

a convicted felon in possession of a firearm was enacted before

Green committed the offense of possessing a firearm. The same

Situation obtained in the case of United States v. Patterson, 820

F.2d 1524 (9th Cir. 1987), cited by Petitioners. Patterson, of

course, was decided by the Ninth Circuit, which recently stated

the correct analysis for ex post facto cases in United States v.

Paskow, supra.

Finally, the Eighth Circuit decisions cited by Petitioners,

Munger v. Erickson, 979 F.2d 1323 (8th Cir. 1992), Garner v.

Howell, 840 F.2d 660 (8th Cir. 1988), and Schwindling v. Smith,

777 F.2d 431 (8th Cir. 1985), are all easily distinguishable from

the case at bar and, therefore, consistent with the Eighth

Circuit's ruling in this case below.

As demonstrated by the above arguments, the Eighth Circuit's

decision below was required by controlling United States Supreme

Court precedent and is consistent with all on-point decisions of

other circuits. Consequently, there is no legitimate basis for

granting the Petition for Writ of Certiorari.

CONCLUSION

For all of the reasons set forth above, Respondent

respectfully requests that the Petition for Writ of Certiorari be

denied.

Dated at Sioux Falls, South Dakota, this 16th day of

February, 1995.

Respectfully submitted,

E. HOF

Counsel of Recor