Hill v. Jackson, s. 94-6056

• Decision Date: 06 September 1995
• Docket Number: 94-6092,94-6276,Nos. 94-6056,94-6083,s. 94-6056
• Citation: 64 F.3d 163
• Parties: Michael Leon HILL, Plaintiff-Appellant, v. Clarence L. JACKSON, Defendant-Appellee. Hibbard KENDRICK, Plaintiff-Appellant, v. Clarence L. JACKSON, Defendant-Appellee. Stephen REEDY, Plaintiff-Appellant, v. Clarence L. JACKSON, Defendant-Appellee. Marvin Leon GRIMM, Jr.; Tommy Crute; Dennis Witt; Robert Dame; Jimmy L. McNutt; Herbert Haymore, Plaintiffs-Appellants, and Douglas Wardlaw; June A. Goodwin; Lawrence Daniels; Walter R. Coleman; Michael Leon Hill; Stephen Reedy; Hibbard Kendrick, Plaintiffs, v. Clarence L. JACKSON; Lewis W. Hurst; John A. Brown; Gail Y. Brown; Jacqueline F. Fraser, Defendants-Appellees. Donald W. Hoffman, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 163

64 F.3d 163

Michael Leon HILL, Plaintiff-Appellant, v. Clarence L. JACKSON, Defendant-Appellee.

Hibbard KENDRICK, Plaintiff-Appellant, v. Clarence L. JACKSON, Defendant-Appellee.

Stephen REEDY, Plaintiff-Appellant, v. Clarence L. JACKSON, Defendant-Appellee.

Marvin Leon GRIMM, Jr.; Tommy Crute; Dennis Witt; Robert

Dame; Jimmy L. McNutt; Herbert Haymore,

Plaintiffs-Appellants,

and

Douglas Wardlaw; June A. Goodwin; Lawrence Daniels;

Walter R. Coleman; Michael Leon Hill; Stephen

Reedy; Hibbard Kendrick, Plaintiffs, v. Clarence L. JACKSON; Lewis W. Hurst; John A. Brown; Gail

Y. Brown; Jacqueline F. Fraser, Defendants-Appellees.

Donald W. Hoffman, Amicus Curiae.

Nos. 94-6056, 94-6083, 94-6092, 94-6276.

United States Court of Appeals, Fourth Circuit.

Argued March 9, 1995.

Decided Sept. 6, 1995.

ARGUED: Ira Mickenberg, Director, Appellate Advocacy Clinic, American University Washington College Of Law, Washington, DC, for appellants. Mary Elizabeth Shea, Asst. Atty. Gen., Crim. Litigation Div., Richmond, VA, for appellees. ON BRIEF: John Nadolenco, Third Year Law Student, Appellate Advocacy Clinic, American University Washington College Of Law, Washington, DC, for appellants. James S. Gilmore, III, Atty. Gen., Alan Katz, Sr. Asst. Atty. Gen. & Chief, Crim. Litigation Div., Richmond, VA, for appellees. George Rutherglen, Post-Conviction Assistance Project, University Of Virginia School Of Law, Charlottesville, VA, for amicus curiae.

Before WIDENER, MICHAEL, and DIANA GRIBBON MOTZ, Circuit Judges.

Affirmed in part and dismissed in part by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge WIDENER and Judge MICHAEL joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Several inmates brought actions to challenge the constitutionality of a Virginia parole review policy, which provides for the deferral of parole review for up to three years for certain categories of inmates. After consolidating the actions, the district court granted summary judgment in favor of the parole board, and the inmates appealed. Following oral argument we placed this case in abeyance pending the Supreme Court's decision in California Dept. of Corrections v. Morales, --- U.S. ----, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). We now affirm in part and dismiss in part.

I.

Prior to 1977, when an inmate of the Virginia Department of Corrections became eligible for parole, the parole board was required to conduct a mandatory review of the inmate's imprisonment status. If parole was denied at that initial hearing, the Board was required to conduct subsequent eligibility reviews "at least annually" thereafter. See Va.Code Sec. 53-252 (1974). In 1977, however, the Virginia Code was amended to read in pertinent part:

Unless there be reasonable cause for extension of the time within which to review and decide his case, the Board shall review and decide the case of each prisoner during the part of the calendar year which he becomes eligible for parole and thereafter during the same part of each ensuing calendar year until he is released on parole or otherwise.... The Board may in addition and in its discretion review the case of any prisoner eligible for parole at any other time.

Va.Code Sec. 53-252 (1978) (emphasis added). In 1982, the General Assembly repealed Sec. 53-252 and enacted Sec. 53.1-154, which was substantively identical to Sec. 53-252. In 1984 the statute was again amended to provide:

Unless there be reasonable cause for extension of the time within which to review and decide a case, the Board shall review and decide the case of each prisoner no later than that part of the calendar year in which he becomes eligible for parole, and at least annually thereafter, until he is released on parole or discharged, except that upon any such review the Board may schedule the next review as much as three years thereafter, provided there are ten years or more or life imprisonment remaining on the sentence in such case .... The Board, in addition, may review the case of any prisoner eligible for parole at any other time and may review the case of any prisoner prior to that part of the year otherwise specified.

Va.Code Sec. 53.1-154 (1988) (emphasis added).

The parole board never exercised the authority provided under Sec. 53.1-154 as amended in 1984 until the parole board promulgated, effective January 1, 1993, a policy authorizing the deferral of parole review for up to three years for inmates who fall within one of the following three categories:

(1) those serving a life sentence for any offense;

(2) those serving a single sentence of 70 years or more for a violent offense, and having at least 10 years left to serve before mandatory release at the time of parole review; or

(3) those serving multiple consecutive sentences totaling 70 years or more, one of which is for a violent offense, and having at least 10 years left to serve before mandatory release at the time of parole review.

The 1993 policy was adopted upon the recommendation of a legislative study that concluded that such deferrals would improve operational efficiency. According to the parole board procedural guide, the 1993 deferral policy is also ostensibly designed to "reduce[ ] inmates' sense of false hope [sic]," since "[i]nmates covered by [these] procedures are most likely to receive multiple denials[of parole]," and to "[r]espond[ ] to [the] community's concerns regarding [the] frequency of [parole] reviews."

Fourteen inmates--Michael Leon Hill, Hibbard Kendrick, Stephen Reedy, Marvin Leon Grimm, Jr., Tommy Crute, Dennis Witt, Robert Dame, Jimmy L. McNutt, Herbert Haymore, Douglas Wardlaw, June A. Goodwin, Lawrence Daniels, and Walter R. Coleman--filed actions for injunctive and declaratory relief against current or former members of the Virginia Parole Board (collectively, the "Parole Board") asserting that the parole review deferral policy violated the Ex Post Facto, Equal Protection, and Due Process Clauses of the Constitution. The district court granted summary judgment in favor of the Parole Board on all claims. The inmates appealed from the district court's entry of judgment against them on their Ex Post Facto and Due Process claims; they have not, however, appealed the district court's rejection of their Equal Protection claim, and so we do not consider that claim.

Moreover, although the inmates purport to challenge the 1984 amended statute, which authorizes general deferrals, it is undisputed that each deferral at issue in this case was made after the promulgation of the 1993 policy and in accordance with that policy of limiting general deferrals to certain categories of inmates. Indeed, there is no evidence of any general deferrals of parole review prior to the implementation of the Parole Board's 1993 policy. Thus, the only question properly before us is whether Virginia's parole review deferral procedures, as specifically implemented by the Parole Board's 1993 deferral policy, withstand the constitutional challenges. See Ward v. Rock Against Racism, 491 U.S. 781, 795-96, 109 S.Ct. 2746, 2756, 105 L.Ed.2d 661 (1989) (in "evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction," including "[a]dministrative interpretation and implementation," that an "enforcement agency has proffered" (citations and internal quotations omitted)); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-02, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985) ("[T]wo of the cardinal rules governing the federal courts" are (1) "never to anticipate a question of constitutional law in advance of the necessity of deciding it," and (2) "never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied" (citations and internal quotations omitted)).

Before considering the constitutional claims, however, we note that some of the inmates here cannot challenge the 1984 statute as implemented by the 1993 policy (hereafter, "the policy" or "the 1993 policy"). Inmates Grimm, McNutt, and Goodwin were convicted prior to 1977; the Parole Board concedes that these inmates are entitled to annual parole reviews, and the inmates have therefore agreed to abandon their appeals. Inmates Haymore and Daniels, by virtue of the lengths of their sentences, do not fall within one of the categories established under the 1993 policy; not subject to deferral thereunder, they too have agreed to abandon their appeals. Accordingly, the appeals of Grimm, McNutt, Goodwin, Haymore, and Daniels are dismissed. The remaining eight inmates (Hill, Kendrick, Reedy, Coleman, Crute, Witt, Dame, and Wardlaw) were sentenced for crimes committed between 1977 and 1991 and received sentences that would qualify them for deferral under the Board's 1993 policy. We now turn to those inmates' constitutional claims.

II.

The Constitution prohibits states from enacting ex post facto laws. U.S. Const. art. I, Sec. 10, cl. 1. An ex post facto law is "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)); see also Morales, --- U.S. at ---- n. 3, 115 S.Ct. at 1602 n. 3 ("the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of 'disadvantage' [to covered offenders] ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable"); Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719-20, 111 L.Ed.2d 30 (1990) (same). The purposes of the Ex Post Facto Clause are to assure that legislative acts "give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed" and to "restrict[ ] governmental...