Jones v. Garner

• Decision Date: 06 January 1999
• Docket Number: No. 97-9009,97-9009
• Parties: 12 Fla. L. Weekly Fed. C 382 Robert L. JONES, Plaintiff-Appellant, v. J. Wayne GARNER, Employed as Chairman, State Board of Pardons and Paroles, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 589

164 F.3d 589

12 Fla. L. Weekly Fed. C 382

Robert L. JONES, Plaintiff-Appellant, v. J. Wayne GARNER, Employed as Chairman, State Board of

Pardons and Paroles, et al., Defendants-Appellees.

No. 97-9009.

United States Court of Appeals, Eleventh Circuit.

Jan. 6, 1999.

Robert L. Jones, Trion, GA, pro se.

Elizabeth B. Thompson, Powell, Goldstein, Frazier & Murphy, Atlanta, GA, for Plaintiff-Appellant.

Thurbert E. Baker, Atty. Gen., Neal B. Childers, Asst. Atty. Gen., Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and BARKETT, Circuit Judges, and HANCOCK ^*, Senior District Judge.

BARKETT, Circuit Judge:

Robert Jones appeals the district court's order granting summary judgment to defendants J. Wayne Garner and other former and current members of the Georgia Board of Pardons and Paroles ("the Board") on Jones' claim that the retroactive application of amendments to the Georgia regulations governing parole consideration, Ga. Comp. R. & Regs. r. 475-3-.05. (2) (1986), violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. In Akins v. Snow, 922 F.2d 1558 (11th Cir.1991), we held that retroactive application of r. 475-3-.05(2) violated this clause's prohibition on ex post facto laws. After the Supreme Court decided California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), in which it held that the retroactive application of a legislative amendment to the California parole regulations that decreased the frequency of parole suitability hearings in certain circumstances did not represent an ex post facto violation, the Board concluded that Akins had been overruled and scheduled Jones' next hearing for 2003 pursuant to the rule promulgated in 1986. The district court agreed that Morales overruled Akins, and granted summary judgment to the defendants. We find that Morales reinforced our holding in Akins, and pursuant to Morales and Akins, we REVERSE.

I. Background

The facts of this case are not in dispute. In July 1974, Jones was sentenced in the Superior Court of Fulton County, Georgia, to life in prison for murder. In August of 1982 he was again sentenced in the same court to life in prison for murder on subsequent charges. At the time of Jones' second offense, the state regulations governing parole consideration required that he first be considered for parole after seven years and, if parole was not granted at that time, that he be considered every three years thereafter. After Jones was incarcerated but before he was initially considered for parole, the Board amended its rules to require that parole reconsideration take place only once every eight years. See Ga. Comp. R. & Regs. r. 475-3-.05. (2). ¹

Jones was initially considered for parole in 1989, seven years after his 1982 conviction, and parole was denied. At that time, rather than scheduling Jones for a rehearing after three years as provided for by the Board rules at the time of the offense, the Board scheduled Jones for reconsideration eight years later, in 1997. In the meantime, however, this Court decided Akins v. Snow, 922 F.2d 1558 (11th Cir.1991), in which it held that the retroactive application of r. 475-3-.05. (2) violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. As a result, Jones was reconsidered for parole in three year intervals, in 1992 and again in 1995. In 1995, however, the Supreme Court decided California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The Board read Morales to overrule Akins, and as a consequence, rather than scheduling Jones' next consideration for 1998, the Board scheduled Jones for reconsideration in 2003 (eight years later).

In 1995, following the Board's rescheduling of his next parole reconsideration for 2003, Jones filed a pro se § 1983 action in the Northern District of Georgia, alleging that the Board's action violated several of his constitutional rights. The district court dismissed his complaint as frivolous on all counts. Jones appealed the dismissal, and a panel of this Court reversed in part, finding Jones' allegation of an Ex Post Facto Clause violation not to be frivolous. On remand, both parties filed motions for summary judgment. The district court granted defendant's motion for summary judgment and denied Jones' motion on the ground that Morales had overruled Akins. Jones now appeals.

II. Discussion

The Constitution provides that "[n]o State shall ... pass any ... ex post facto Law...." U.S. Const. art. I, § 10, cl. 1. At the time of the drafting of the Constitution, the phrase " 'ex post facto law' was a term of art with a well-established meaning." Akins v. Snow, 922 F.2d at 1560. In Calder v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798), the Supreme Court "identified several legislative acts that clearly implicated the core concerns" with respect to ex post facto laws that existed at the time the Constitution was written. Akins, 922 F.2d at 1560-61. Included in such legislative acts was any law "... that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Akins, 922 F.2d at 1560-61 (quoting Calder, 3 U.S. (Dall.) at 390 (emphasis in original)). The Supreme Court's ex post facto rulings have continued to adhere to the original principle that laws with this effect violate the Constitution's ex post facto prohibition. See id. (collecting cases). ²

A. Akins v. Snow

In Akins, this Court considered an ex post facto challenge to the retroactive application of the amendments to Georgia's regulations governing parole consideration at issue here, see Ga. Comp. R. & Regs. r. 475-3-.05. (2), and held such application to violate the proscription against laws " 'that change[ ] the punishment, and inflict[ ] a greater punishment than the law annexed to the crime when committed.' " Akins, 922 F.2d at 1560-61 (quoting Calder, 3 U.S. (Dall.) at 390 (emphasis in original)). When the crimes for which the petitioners in Akins were convicted were committed, "the Board's rules required the Board to initially consider an inmate serving a life term for parole after serving seven years of his life sentence." Id. at 1560. If the inmate was denied parole at that time, he would receive reconsideration every year thereafter. See id. The regulation was subsequently amended so that "[parole r]econsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years." Ga. Comp. R. & Regs. r. 475-3-.05. (2). Applying the two-pronged test for Ex Post Facto Clause violations established by the Supreme Court in Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), ³ we found both that the Georgia regulation was retroactive and that, by creating significant delays between parole reconsideration hearings, the application of the regulation "substantially disadvantages a prisoner." Akins, 922 F.2d at 1564. ⁴

B. California Dep't of Corrections v. Morales and Lynce v. Mathis

Four years later, the Supreme Court entertained an ex post facto challenge to retroactive application of an amended California Department of Corrections regulation governing parole eligibility. See California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). At the time that Morales committed the crime for which he was incarcerated, the California parole consideration regulations specified that, once an inmate became eligible for an initial parole consideration hearing, if the inmate was denied parole at that time, he or she would be eligible for annual reconsideration. See id. at 503, 115 S.Ct. 1597. Subsequent to Morales' sentencing, however, the California legislature amended the regulation to authorize the Board of Prison Terms "to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of 'more than one offense which involves the taking of a life' and if the Board 'finds that it is not reasonable to expect that parole would be granted at a hearing during the following [two] years and states the bases for the findings.' " Id. (quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West 1982)).

In Morales, the Supreme Court rejected an expansive reading of the Ex Post Facto Clause as forbidding any and all legislative change having any conceivable risk of affecting a prisoner's punishment. See id. at 508, 115 S.Ct. 1597. Instead, the Court found it to be "a matter of 'degree' " as to which "legislative adjustments 'will be held to be of sufficient moment to transgress the constitutional prohibition [on ex post facto laws].' " Id. at 509, 115 S.Ct. 1597 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Declining to provide a universal formula for identifying legislative changes that violate the ex post facto prohibition, id., the Court directed that each case be analyzed by asking "whether [the law at issue] produces a sufficient risk of increasing the measure of punishment attached to the covered crimes," id., and proceeded to apply this standard to the California statute at issue in Morales.

First, the Court noted that the regulation as amended applies "only to a class of prisoners for whom the likelihood of release on parole is quite remote": those prisoners "who have been convicted of 'more than one offense which involves the taking of a life.' " Id. at 510, 115 S.Ct. 1597 (quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West 1982)).

Second, the Court found that the California amendment was intended only "as a means 'to relieve the [state's Board of Prison Terms] from the costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no chance of being released,' " id. at 511, 115 S.Ct. 1597 (quoting In re Lawrence A. Jackson, 39 Cal.3d 464, 473, 216 Cal.Rptr....