Jones v. Fla. Parole Comm'n

• Decision Date: 02 June 2015
• Docket Number: No. 13–12738.,13–12738.
• Citation: 787 F.3d 1105
• Parties: Ben E. JONES, Plaintiff–Appellant, v. State of FLORIDA PAROLE COMMISSION, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

787 F.3d 1105

Ben E. JONES, Plaintiff–Appellant

v.State of FLORIDA PAROLE COMMISSION, et al., Defendants–Appellees.

No. 13–12738.

United States Court of Appeals, Eleventh Circuit.

June 2, 2015.

Ben E. Jones, Orlando, FL, pro se.

Meghan Greenfield, Shay Dvoretzky, Jones Day, Washington, DC, CFRC Main Warden, CFRC Main–Inmate Trust Fund, Orlando, FL, for Plaintiff–Appellant.

Sarah J. Rumph, Florida Parole Commission, Tallahassee, FL, Pam Bondi, Attorney General's Office, Daytona Beach, FL, for Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:13–cv–00745–PCF–DAB.

Before MARCUS and JILL PRYOR, Circuit Judges, and HINKLE,^* District Judge.

Opinion

HINKLE, District Judge:

In this case a Florida prisoner challenges a statute widening the permissible gap between parole interviews. The district court dismissed the complaint for failure to state a claim on which relief can be granted. We affirm.

I

A Florida state court convicted the appellant Ben E. Jones on two counts of sexual battery. The crimes occurred in December 1978 and February 1979. The court sentenced Mr. Jones to life in prison. His offenses were parole eligible.

At that time Florida law required the Florida Parole Commission to conduct an initial interview and subsequent interviews at least every two years. Fla. Stat. §§ 947.172, 947.174(1) (1978) ; see also Tuff v. State, 732 So.2d 461, 462 n. 1 (Fla. 3d DCA 1999) (noting the every-two-year requirement).

In 2001, the Legislature adopted a statute allowing the Parole Commission to schedule interviews up to five years apart for offenders convicted of specific serious crimes, including sexual battery. Ch.2001–124, Laws of Fla. (2001). In 2010, the Legislature adopted a statute allowing the Commission to increase the interval to seven years. Ch.2010–95, Laws of Fla. (2010).

Mr. Jones's most recent interview was in 2012. The complaint alleges that Mr. Jones's next interview is scheduled for five years later. Mr. Jones filed this federal lawsuit in 2013 challenging the Commission's procedures on various grounds, including on the ground that the five-year interval between interviews violates the Ex Post Facto Clause.

The district court screened the complaint at the outset as required by the Prison Litigation Reform Act. See 28 U.S.C. § 1915A. The court dismissed the complaint for failure to state a claim on which relief can be granted. The court relied on Penoyer v. Briggs, 206 Fed.Appx. 962 (11th Cir.2006) (unpublished), which affirmed the dismissal of a complaint challenging on Ex Post Facto grounds the Florida statute that increased the permissible interval between parole interviews to five years.

Mr. Jones moved for reconsideration, asserting, among other things, that it was error to dismiss the complaint without leave to amend. Mr. Jones did not tender an amended complaint or suggest what new allegations any amended complaint would include. The district court denied the motion for reconsideration.

Mr. Jones appeals. We address the Ex Post Facto claim and reject Mr. Jones's other claims without discussion.

II

To avoid dismissal for failure to state a claim on which relief can be granted, a complaint must include “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The complaint's factual allegations, though not its legal conclusions, must be accepted as true. Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Mr. Jones is proceeding pro se. A pro se pleading is held to a less stringent standard than a pleading drafted by an attorney; a pro se pleading is liberally construed. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.2003). Even so, a pro se pleading must suggest (even if inartfully) that there is at least some factual support for a claim; it is not enough just to invoke a legal theory devoid of any factual basis.

We review de novo a district court's sua sponte dismissal for failure to state a claim for relief under 28 U.S.C. § 1915A(b). Harden v. Pataki, 320 F.3d 1289, 1292 (11th Cir.2003).

III

In 1983, Florida abolished parole for most new crimes. Ch. 83–87, Laws of Fla. (1983). But offenders who, like Mr. Jones, committed crimes before that time remain eligible for parole. The Florida Parole Commission (now known as the “Florida Commission on Offender Review”) is the agency that administers the parole system.

The general framework that applied when Mr. Jones committed his crimes remains in place today. A hearing examiner conducts an initial interview and determines the offender's presumptive parole release date (“PPRD”) based on objective guidelines. Subsequent interviews are “limited to determining whether or not information has been gathered which might affect the presumptive parole release date.” Fla. Stat. § 947.174(1) (1978). A PPRD can be modified only (1) based on new information, (2) based on institutional conduct, or (3) “for good cause in exceptional circumstances.” Fla. Stat. §§ 947.16(4), 947.172(3), 947.173(3) (1978) ; McKahn v. Fla. Parole and Prob. Comm'n, 399 So.2d 476, 478 (Fla. 1st DCA 1981).

The Florida Legislature has twice modified § 947.174 to allow the Parole Commission to extend the interval between subsequent interviews for offenders convicted of specific serious crimes, including sexual battery. Mr. Jones did not challenge the first increase, to five years, when it took effect in 2001, and the statute of limitations has run on any challenge to that increase. See Lovett v. Ray, 327 F.3d 1181, 1182–83 (11th Cir.2003) (holding that the limitations period for a challenge to a change in the frequency of parole consideration runs from the date when the offender learns of the change, not the date of parole consideration, and that the continuing-violation doctrine does not apply). But Mr. Jones now challenges the scheduling of his next interview five years out, and, at least in this court, Mr. Jones challenges the statutory increase in the permissible interval between interviews to seven years, which took effect in 2010. His challenge to that increase is not time barred.

IV

The United States Constitution prohibits a state from passing an “ex post facto Law.” U.S. Const. art. I, § 10. The prohibition extends to laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). This includes an increase in punishment resulting from a change in a state's parole system.

A

The Supreme Court has twice considered—and twice rejected—an Ex Post Facto challenge to a state's increase in the interval between parole reviews.

First, in California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), an offender committed a crime while a statute was in effect that required the state parole board to conduct an initial hearing and subsequent hearings at least annually. An amendment allowed the parole board to increase the interval between hearings to two years, upon a finding (on a basis stated by the parole board) that the offender was unlikely to be paroled during the interim. Id. at 512–13, 115 S.Ct. 1597. The parole board could conduct a hearing sooner if warranted. Id. at 513, 115 S.Ct. 1597.

The Ninth Circuit held that the amendment violated the Ex Post Facto Clause. Morales v. Cal. Dep't of Corr., 16 F.3d 1001 (9th Cir.1994). The Supreme Court reversed, concluding that a change in parole procedures violates the Ex Post Facto Clause only if it creates a sufficient risk that offenders will actually serve more time in prison. See id. at 509, 514. The Court explicitly declined to adopt a test for determining when a risk is sufficient, but the Court said not every conceivable risk is enough. Id. at 509. And the Court said the amendment at issue did not create a sufficient risk; it created “only the most speculative and attenuated possibility of producing the prohibited effect”—that is, of increasing offenders' punishment. Id. at 510.

Similarly, in Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), an offender committed a crime in Georgia while the state parole board's policies called for consideration of parole every three years. The board changed the policies to increase the interval to eight years. Id. at 247, 120 S.Ct. 1362. The policies vested the board with discretion to set an earlier date and allowed an offender to seek expedited review upon a change in circumstances. Id. at 254, 120 S.Ct. 1362.

We held that the change in policies violated the Ex Post Facto Clause. Jones v. Garner, 164 F.3d 589 (11th Cir.1999). But again the Supreme Court disagreed. The Court said the issue was whether the new policies created a significant risk of prolonging the offender's time in prison and that nothing inherent in the new policies created such a risk. 529 U.S. at 252, 120 S.Ct. 1362. The Court remanded for this court or the district court to consider whether the offender should be allowed discovery into the actual effect of the new policies in operation.

B

Together Morales and Jones compel rejection of the claim that the Florida statutory change at issue here is facially unconstitutional. Here, as in Morales and Jones, the interval between parole assessments has increased. But here, as in Morales and Jones, the substantive policies that govern parole have remained the same. And here the risk that the change will increase an offender's actual punishment is no greater than—indeed, probably less than—the risk in Morales or Jones.

This is so because here, as in Morales, the Commission can delay a periodic review only upon finding, on grounds set out in writing, that an offender is unlikely to be paroled in the interim. Here, as in Morales and Jones, an earlier periodic review can be scheduled, as a...