Devine v. New Mexico Dept. of Corrections, 87-2456

Decision Date24 January 1989
Docket NumberNo. 87-2456,87-2456
Citation866 F.2d 339
PartiesAndrew James DEVINE, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Katherine Zinn, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with her on the brief), Santa Fe, N.M., for respondent-appellee.

Before HOLLOWAY, Chief Judge, SEYMOUR and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Petitioner Andrew James Devine, currently serving a life sentence in New Mexico for first degree murder, filed a petition for writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982), claiming that the state unconstitutionally delayed his eligibility for parole after he committed the crime. The district court denied his petition, and Devine appeals. We conclude that the New Mexico Supreme Court violated the due process clause of the Fourteenth Amendment because the manner in which it applied New Mexico parole statutes to Devine was unforeseeable and the decision retroactively enhanced Devine's punishment. We therefore reverse.


Devine pled guilty to first degree murder in Eddy County, New Mexico on December 5, 1979, and was sentenced to life imprisonment on October 31, 1980, without mention of his parole eligibility. The offense to which Devine pled guilty occurred on August 31, 1979.

Devine subsequently brought actions both in the sentencing court and the state district court in the county of his incarceration, seeking a declaratory judgment giving him the right to a parole hearing after serving ten years of his term. Both courts denied his requested relief. Devine then brought a habeas corpus petition in the New Mexico Supreme Court, charging a violation of the ex post facto clause of the Federal Constitution. He contended that in refusing to consider him for parole after ten years of his sentence, the state impermissibly relied on a statute passed subsequent to his offense which mandated a minimum of thirty years incarceration without parole for prisoners serving life terms. The Supreme Court consolidated his case with that of another prisoner, and denied both petitions. See Quintana v. New Mexico Dep't of Corrections, 100 N.M. 224, 668 P.2d 1101 (1983). The court held that a New Mexico statute passed in 1977, before Devine's offense, established a mandatory prison term of thirty years for offenders serving life sentences. Devine filed this action in federal district court on March 20, 1986. The court acknowledged that Devine had exhausted his state remedies, 1 but dismissed the action on the merits.

Devine's claim arises out of two parallel but inconsistent actions taken by the 1977 session of the New Mexico legislature to amend the law governing parole eligibility for offenders sentenced to life imprisonment. Between 1955 and 1977, parole eligibility for prisoners sentenced to life was governed by N.M.Stat.Ann. Sec. 41-17-24 (1953), which required such prisoners to serve a minimum of ten years of their sentence before becoming eligible for parole. This statute was inexplicably amended twice during the 1977 legislative session. One law, 1977 N.M.Laws ch. 216, Sec. 12, ostensibly repealed section 41-17-24 and mandated a minimum prison term of thirty years on a life sentence before parole eligibility. Another provision, 1977 N.M.Laws ch. 217, Sec. 3, amended section 41-17-24 in a number of respects, but retained the requirement that a prisoner serve a minimum of only ten years on a life sentence.

These two contradictory provisions did not achieve equal stature in the official compilation 2 of the New Mexico Statutes. Chapter 217, Sec. 3 was codified originally at N.M.Stat.Ann. Sec. 41-12-24 (Int.Supp.1977). Chapter 216 Sec. 12 only appears as a reference in the compiler's notes, as follows:

"Laws 1977, ch. 216, Sec. 12, repealing this section and enacting a new section 41-17-24, 1953 Comp., relating to parole authority and procedure, was approved April 6, 1977. However, Laws 1977, ch. 217, Sec. 3, also amended this section ... and was approved April 6, 1977. The provisions of the 1977 acts do not appear to be reconcilable, and this section is set out above as amended by Laws 1977, ch 217, Sec. 3, as the act last signed by the governor." 3

In the original pamphlet of the 1978 compilation, chapter 217, Sec. 3 appeared at N.M.Stat.Ann. Sec. 31-21-10 (1978). The compiler's notes, although referring to chapter 216, Sec. 12, did not set out the text of that provision. 4

In 1980, the legislature passed the provision currently in effect, 1980 N.M.Laws ch. 28. Section 1 of that act repealed section 31-21-10 in its entirety, and increased mandatory prison time on a life sentence from ten years to thirty years. Section 2 made the new minimum prison time applicable to persons sentenced for crimes occurring on or after July 1, 1979. It is the retroactive application of this statute that Devine protested in his habeas petition to the New Mexico Supreme Court. In Quintana, 668 P.2d 1101, the court held there was no ex post facto violation and dismissed Devine's petition. The court based its holding on its conclusion that chapter 216, Sec. 12, rather than the 1980 law, applied to Devine and was in effect at the time of his offense and guilty plea. Id. at 1104.

On appeal in this action, Devine reiterates his ex post facto claim and also argues that the Quintana decision is so unforeseeable an interpretation of the various laws at issue as to constitute a violation of the due process clause of the Fourteenth Amendment under the Supreme Court's decision in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).


"The ex post facto prohibition forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.' " Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866)) (footnote omitted). 5 For a law to be considered 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 it." Id. at 29, 101 S.Ct. at 964 (footnote omitted); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987).

It is true, as will be discussed more fully below, that "a repealer of parole eligibility previously available to imprisoned offenders would clearly present ... [a] serious question under the ex post facto clause." Warden v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974). However, it is equally true that "[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature and does not of its own force apply to the Judicial Branch of government." Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977) (citation omitted). See also Rubino v. Lynaugh, 845 F.2d 1266, 1271 (5th Cir.1988). In this case, the New Mexico Supreme Court specifically decided that the potentially retroactive repeal of parole eligibility passed by the legislature in 1980 did not apply to Devine. Rather, it held that chapter 216, Sec. 12, a statute passed in 1977 well before Devine's offense, extended his mandatory prison term from ten to thirty years. Since no act passed by the legislature after Devine's offense was applied, the ex post facto clause is not implicated.


Although the ex post facto clause does not apply itself to Devine's dilemma, its principles apply to the actions of the New Mexico Supreme Court, for "[i]f a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Bouie, 378 U.S. at 353-54, 84 S.Ct. at 1702-03; see also Marks, 430 U.S. at 191-92, 97 S.Ct. at 992-93. In determining whether the decision of the New Mexico Supreme Court was contrary to due process, we must address three issues: first, whether ex post facto principles prohibit the sort of retroactive restrictions on parole eligibility involved in this case; second, whether any such prohibition should be applied to courts through the due process clause; and third, whether the decision by the New Mexico court to apply chapter 216, Sec. 12 to Devine was " 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.' " Bouie, 378 U.S. 354, 84 S.Ct. 1703 (quoting Hall, General Principles of Criminal Law, at 61 (2d ed.1960)).


It is evident from the Supreme Court's recent decision in Weaver, 450 U.S. 24, 101 S.Ct. 960, that certain retroactively applied post-offense restrictions of eligibility for supervised release run afoul of the ex post facto clause. In Weaver, a Florida prisoner protested a statutory change in how the state calculated the accumulation of good time release credits, or gain time. Accumulation of such credits by a prisoner makes him eligible for parole at an earlier date. The Florida legislature reduced the maximum rate at which a prisoner could earn the credits, thereby increasing the time prisoners complying with prison regulations would have to serve before becoming eligible for parole. Rejecting the argument that this credit system was not a part of a prisoner's punishment, the Supreme Court held that this potential increase in actual time served constituted an ex post facto violation:

"[W]e need not determine whether the prospect of the gain time was in some technical sense part of the sentence to conclude that it in fact is one determinant of petitioner's prison term--and that his effective sentence is altered once this determinant is changed.



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