Flemming v. Oregon Bd. of Parole, 92-35151

• Decision Date: 12 July 1993
• Docket Number: No. 92-35151,92-35151
• Citation: 998 F.2d 721
• Parties: Jerrold S. FLEMMING, Petitioner-Appellant, v. OREGON BOARD OF PAROLE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 721

998 F.2d 721

62 USLW 2115

Jerrold S. FLEMMING, Petitioner-Appellant, v. OREGON BOARD OF PAROLE, Respondent-Appellee.

No. 92-35151.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 2, 1993.

Decided July 12, 1993.

Kathleen M. Correll, Asst. Federal Public Defender, Portland, OR, for petitioner-appellant.

Janet A. Metcalf, Asst. Atty. Gen., Salem, OR, for respondent-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: KILKENNY, TANG, and POOLE, Circuit Judges.

TANG, Circuit Judge:

Jerrold S. Flemming, an Oregon state prisoner, appeals the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Flemming contends that the district court erred in concluding that the Oregon Board of Parole ("Board") did not violate the Ex Post Facto Clause, U.S. Const. art. I, § 10, cl. 1, when it applied a regulation retroactively in calculating Flemming's parole release date. We agree and therefore reverse.

I.

In 1981, Flemming was convicted of multiple sex offenses under Oregon state law. At the time of his crimes, a state parole regulation provided that the Board could reduce certain sentences, but that "reductions shall be limited to a maximum of 20% of the prison term under review." Or.Admin.R. § 255-40-025(2) (Apr.1981). ¹ Ordinarily, the Board reviews sentences "after the prisoner has served five years of his prison term and every three years thereafter." Id. § 255-40-005(1) (setting forth schedule for "periodic reviews"); see id. § 255-40-025(2)(a) ("[r]eductions shall customarily be considered at periodic reviews under rule 255-40-005").

The phrase "20% of the prison term under review," id. § 255-40-025(2), refers to twenty percent of the entire prison sentence, and not just to twenty percent of the time served as of the parole hearing. Jeldness v. Board of Parole, 90 Or.App. 135, 751 P.2d 243, 243-44, modified on other grounds, 92 Or.App. 323, 759 P.2d 1102, review denied, 307 Or. 245, 767 P.2d 75 (1988). This twenty percent ceiling on sentence reduction is apparently recalculated and applied anew each time the Board reviews a prisoner's sentence. Thus, a prisoner who receives the maximum reduction at the time of his or her first review may nevertheless receive an additional reduction of up to 20% of the previously revised sentence if there should be another review. See Williams v. Board of Parole, 107 Or.App. 515, 812 P.2d 443, 444-45 (1991), aff'd on reh'g, 112 Or.App. 108, 828 P.2d 465, review dismissed, 313 Or. 300, 832 P.2d 456 (1992). Under the 1981 regulation, the Board can also reduce a sentence by more than twenty percent upon majority vote. Or.Admin.R. § 255-40-025(2).

In 1988, the parole regulations were amended. Section 255-40-025(2), which imposed the twenty percent cap, was replaced with the following provision:

If the prisoner displays an extended course of conduct indicating outstanding reformation, the Board may grant a reduction of up to seven months of the three year period under review....

Or.Admin.R. § 255-40-025(2) (June 1990). ²

Also in 1988, the Board met to consider Flemming's first five years of incarceration spanning the years 1981-86. At that time, Flemming's sentence totaled 170 months. The Board concluded that a 12-month reduction was warranted, regardless of which version of section 255-40-025 applied.

In 1989, the Board met again to consider Flemming's sentence. At this time Flemming would have been eligible, under the prior version of section 255-40-025, for a reduction in sentence of up to 31.6 months (i.e., twenty percent of the then-existing 158-month sentence), or more if a majority of the Board so approved. Under the new regulation, however, the maximum reduction was seven months, which is what the Board awarded. In doing so, the Board made no reference to the prior version of section 255-40-025. Instead, consistent with the amended version, the Board only considered the period of incarceration from 1986 to 1989 in deciding upon a further reduction. ³ Based on this additional reduction in sentence, Flemming's parole release date was scheduled for February 27, 1993. ⁴

In an unpublished disposition, the Oregon Court of Appeals affirmed the Board's 1989 decision; the Oregon Supreme Court denied review. Flem[m]ing v. Board of Parole, 102 Or.App. 691, 795 P.2d 122, review denied, 310 Or. 475, 799 P.2d 646 (1990). Flemming then filed this federal habeas petition alleging that his "constitutional rights were violated by ex post facto application of amended Board of Parole rules."

In October 1991, the district court denied the petition on the ground that both versions of section 255-40-025 are discretionary in nature such that "[p]etitioner has no constitutionally cognizable liberty interest under either rule." Flemming timely appeals the denial of his habeas petition.

II.

A.

We review de novo the denial of a state prisoner's petition for a writ of habeas corpus. King v. Rowland, 977 F.2d 1354, 1357 (9th Cir.1992). Whether application of a law violates ex post facto is also reviewed de novo. United States v. Castro, 972 F.2d 1107, 1111 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993).

B.

The Ex Post Facto Clause prohibits, inter alia, laws which "make more burdensome the punishment for a crime, after its commission." Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990). "[T]o fall within the ex post facto prohibition, two critical elements must be present: first, the law 'must be retrospective, that is, it must apply to events occurring before its enactment'; and second, 'it must disadvantage the offender affected by it.' " Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)).

In Weaver, the Supreme Court considered whether a Florida statute reducing the amount of "good time" or "gain time" a state convict could automatically earn violated the Ex Post Facto Clause. 450 U.S. at 25, 101 S.Ct. at 962. The Court concluded that application of the statute evoked the two critical elements indicating an ex post facto violation.

First, the Court noted that the statute used to calculate Weaver's "gain time" was passed after the date of his conviction. Id. at 31, 101 S.Ct. at 965. "Thus, the provision attaches legal consequences to a crime committed before the law took effect." Id. In concluding that the law satisfied the retroactivity prong, the Court considered it unnecessary to determine "whether the prospect of the gain time was in some technical sense part of the sentence." Id. at 32, 101 S.Ct. at 966. Instead, the Court found it sufficient that "eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed." Id.

Second, the Weaver Court observed:

On its face, the [Florida] statute reduces the number of monthly gain-time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks. By definition, this reduction in gain-time accumulation lengthens the period that someone in petitioner's position must spend in prison.

Id. at 33, 101 S.Ct. at 967. The Court thus considered Weaver to be sufficiently "disadvantaged by the reduced opportunity to shorten his time in prison simply through good conduct." Id. at 33-34, 101 S.Ct. at 967.

Relying heavily on the Weaver decision, the Oregon Court of Appeals has concluded that retroactive application of the amended version of Or.Admin.R. § 255-40-025 violates ex post facto. See Williams v. Board of Parole, 107 Or.App. 515, 812 P.2d 443, 446 (1991), aff'd on reh'g, 112 Or.App. 108, 828 P.2d 465, 466-68, review dismissed, 313 Or. 300, 832 P.2d 456 (1992). We think this reliance is well-founded.

As in Weaver, the amended parole regulation here was enacted after Flemming's offenses, yet Oregon used this regulation to calculate Flemming's 1989 sentence reduction. Although the State argues that the parole regulation is not annexed to Flemming's sentence, Weaver forecloses this argument. As with the gain time credits in Weaver, the parole regulations here affect "eligibility for reduced imprisonment" such that they would be "a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed." 450 U.S. at 32, 101 S.Ct. at 966. Thus, application of amended section 255-40-025 gives rise to the Supreme Court's first "critical element" for an ex post facto violation.

Oregon's application of the revised parole regulation also evokes the second "critical element." Whereas the rule in effect at the time of his offenses apparently would have provided Flemming with the opportunity for a sentence reduction of 31.6 months or more in 1989, the amended rule limited this opportunity to seven months. As in Weaver, this "reduced opportunity to shorten his time in prison" demonstrates an ex post facto violation.

The State argues, and the district court agreed, that, because the Board at all times retained discretion in deciding the degree to which a sentence should be reduced, Flemming cannot show an ex post facto violation. The Oregon Court of Appeals rejected this argument. Williams, 112 Or.App. 108, 828 P.2d at 466-67. The Williams court pointed out that, although the statute at issue in Weaver provided for "automatic" good-time credits once an inmate was found to have acted properly, the decision whether the inmate in Weaver qualified for the credits was still discretionary in the sense that it required a finding of good conduct. Id. (citing Raske v. Martinez, 876 F.2d 1496 (11th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 543, 107 L.Ed.2d 540 (1989)); see Weaver, 450 U.S. at 33, 101 S.Ct. at 966 (statute in question "reduces the number of monthly gain-time...