Fender v. Thompson, 88-7223

• Decision Date: 24 August 1989
• Docket Number: No. 88-7223,88-7223
• Citation: 883 F.2d 303
• Parties: Ray Mychel FENDER, Petitioner-Appellant, v. Charles THOMPSON, Warden; Attorney General of the State of Virginia, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 303

883 F.2d 303

Ray Mychel FENDER, Petitioner-Appellant, v. Charles THOMPSON, Warden; Attorney General of the State of Virginia, Respondents-Appellees.

No. 88-7223.

United States Court of Appeals Fourth Circuit.

Argued April 13, 1989.

Decided Aug. 24, 1989.

Barry Nakell, Chapel Hill, N.C., for petitioner-appellant.

Robert B. Condon, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richmond, Va., on brief), for respondents-appellees.

Before PHILLIPS, MURNAGHAN and WILKINS, Circuit Judges.

PHILLIPS, Circuit Judge:

Ray Mychel Fender appeals the dismissal of his pro se petition for a writ of habeas corpus, wherein he challenged a formal order of the Virginia Department of Corrections (DOC or the Department) finding him permanently ineligible for parole. We reverse and remand for the issuance of a writ directing that the Department rescind its ineligibility determination.

I

In 1973, a Virginia state court found Fender guilty of various offenses and sentenced him to life imprisonment. At that time, the Virginia Code provided that Fender would become eligible for parole after serving fifteen years of the sentence. See Va.Code Sec. 53-251(3) (1970). In 1985, however, the Virginia General Assembly amended the state's parole eligibility statute to provide that "[a]ny person sentenced to life imprisonment who escapes from a correctional facility or from any person in charge of his custody shall not be eligible for parole." Va.Code Sec. 53.1-151(B) (1988).

In 1987, the appellant escaped from custody. Virginia authorities recaptured him, however, and Fender ultimately pleaded guilty to one count of escape and was sentenced to an additional prison term of three years, set to run consecutively to the original life sentence. Shortly thereafter, the Department issued an order finding that, pursuant to Sec. 53.1-151(B), Fender was no longer eligible for parole.

After exhausting his state remedies, Fender filed the present habeas petition. He claimed that, at least as the Department applied it in his case, Sec. 53.1-151(B) constituted an unconstitutional ex post facto law, inasmuch as it effectively changed the sentence on his original convictions from "life with possibility of parole" to "life without possibility of parole."

The district court rejected the argument out of hand. "The statute is 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." Fender v. Thompson, C/A No. 88-0322-R, slip op. at 7 (E.D.Va. August 19, 1988). In turn, and after disposing of various other claims not at issue here, ¹ the court dismissed Fender's habeas petition. This appeal followed.

II

The ex post facto clause ² "forbids ... 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, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-26, 18 L.Ed. 356 (1867)). "[T]wo critical elements must be present for a criminal or penal law 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 it." Id. 450 U.S. at 29, 101 S.Ct. at 964 (footnotes omitted).

There is no question--indeed the respondent does not dispute--that Sec. 53.1-151(B) of the Virginia Code "disadvantages" Fender. Had the state's General Assembly not amended the statute, the petitioner would have been eligible for parole on his 1973 convictions after serving fifteen years of the original life sentence--notwithstanding his 1987 conviction for escape. Now, pursuant to the amendment, he is permanently ineligible for probationary release.

The dispositive question, therefore, is whether the challenged statute operates "retrospectively"--that is, whether it resulted in the imposition of an additional, post-conviction punishment for Fender's 1973 crimes. We recognize, of course, that there is a fine line to be drawn between constitutionally permissible recidivist statutes and prohibited ex post facto enactments. See, e.g., Spencer v. Texas, 385 U.S. 554, 559-60, 87 S.Ct. 648, 651-52, 17 L.Ed.2d 606 (1967). We are also persuaded, however, that the line is crossed by the statutory application here challenged. As applied to Fender and others similarly situated, Sec. 53.1-151(B) expressly rescinded preexisting parole eligibility--and to that extent ran afoul of the ex post facto clause.

The Supreme Court has expressly cautioned, albeit in dicta, 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.' " Warden v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974) (quoting Rooney v. North Dakota, 196 U.S. 319, 325, 25 S.Ct. 264, 265-66, 49 L.Ed. 494 (1905)) (emphasis in original). Indeed, courts have repeatedly held that "parole eligibility is part of the law annexed to the crime at the time of a person's offense." Schwartz v. Muncy, 834 F.2d 396, 398 n. 8 (4th Cir.1987). See also, e.g., Burnside v. White, 760 F.2d 217, 220 (8th Cir.1985) ("There is no question that a new parole statute may alter the consequences attached to a crime for which a prisoner already has been sentenced; [and] to the degree that a statute does so, it has retrospective effect."); Lerner v. Gill, 751 F.2d 450, 454 (1st Cir.1985) ("parole eligibility is part of the 'law annexed to the crime' for ex post facto purposes"); Beebe v. Phelps, 650 F.2d 774, 777 (5th Cir. Unit A 1981) ("Since parole eligibility is considered an integral part of any sentence ..., official port-sentence [sic] action that delays eligibility for supervised release runs afoul of the ex post facto proscription.") (quoting Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir.1977)); Rodriguez v. United States Parole Comm'n, 594 F.2d 170, 176 (7th Cir.1979) (treating "possibility of parole as an element of 'punishment' "). In turn, they have unvaryingly refused to permit the retrospective application of new or amended statutes or administrative rules which purported, for example, to alter preexisting criteria for the determination of parole eligibility, Marshall v. Garrison, 659 F.2d 440, 444-46 (4th Cir.1981); or revoke accrued "good time" credits upon the revocation of probationary release granted on the sentence for an offense committed before enactment of the statute, Beebe, 650 F.2d at 776-77, or, as a practical matter, simply rescind prior parole eligibility altogether. Rodriguez, 594 F.2d at 176.

The principle underlying each of these decisions is that the retrospective application of a statute modifying or revoking parole eligibility would, "[f]or prisoners who committed crimes before [the statute's] enactment ..., substantially alter[ ] the consequences attached to a crime already completed, and therefore change[ ] 'the quantum of punishment.' " Weaver, 450 U.S. at 33, 101 S.Ct. at 966-67 (citing Dobbert v. Florida, 432 U.S. 282, 293-94, 97 S.Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977)). That is, of course, what the statute as applied here effectively accomplishes. It is also, however, precisely what the ex post facto clause forbids.

Our recent decision in Schwartz illustrates the point in a way we consider dispositive here. In that case, the petitioner had been convicted of felonies on three separate occasions: once in 1968, once in 1978, and again in 1982. The immediate dispute involved his parole eligibility on the 1978 offense, for which he had been sentenced to twenty years in prison. In 1979, the Virginia General Assembly had enacted Va.Code Sec. 53.1-151(A), which imposed certain restrictions on the parole eligibility of repeat offenders. In particular, it required that "third offenders" serve at least one-half of their original sentences before becoming eligible for parole. Id. Sec. 53.1-151(A)(3). Schwartz had been paroled on the 1978 offense, but was of course returned to prison after his third conviction in 1982. Shortly thereafter, the Virginia Department of Corrections informed him that, pursuant to amended Sec. 53.1-151(A)(3), he would be treated as a "third offender" for the purpose of computing his parole eligibility on the 1982 and 1978 offenses.

We held that the state's application of the amended statute to the computation of the petitioner's parole eligibility on the 1978 offense constituted a clear violation of the ex post facto clause.

The acts leading to Schwartz' 1978 conviction of course occurred prior to the 1979 change of the Virginia parole eligibility statute. Accordingly, the fixing of his parole eligibility date, which was part of his punishment, could not constitutionally be made "greater or more severe." Yet, if the new Virginia statute were applied to Schwartz, that is precisely what would occur. His parole eligibility will mature at a later date under the 1979 statute than it would have under the statute in place at the time of his 1978 conviction and the acts causing the 1978 conviction. It is, therefore, the old Virginia statute ... that should be applied in determining Schwartz' parole eligibility so far as his 1978 sentence is concerned.

Schwartz, 834 F.2d at 398 (footnote omitted). The proposition for which Schwartz stands, therefore, is this: statutes enacted or amended after a prisoner was sentenced cannot be applied to alter the conditions of or revoke his or her preexisting parole eligibility--notwithstanding that the conduct purportedly triggering application of the statute occurred after its enactment. As applied here, Sec. 53.1-151(B) had that effect.

The Commonwealth seeks to avoid this constitutional...