Lomax v. Warden

• Decision Date: 09 November 1999
• Docket Number: No. 45,45
• Citation: 356 Md. 569,741 A.2d 476
• Parties: Walter E. LOMAX v. WARDEN, MARYLAND CORRECTIONAL TRAINING CENTER.
• Court: Maryland Court of Appeals

741 A.2d 476

356 Md. 569

Walter E. LOMAX v. WARDEN, MARYLAND CORRECTIONAL TRAINING CENTER.

No. 45, Sept. Term, 1998.

Court of Appeals of Maryland.

November 9, 1999.

Reconsideration Denied December 15, 1999.

David C. Wright, Executive Director (Stephen Z. Meehan, Principal Counsel; Joseph B. Tetrault, Chief Staff Counsel, Prisoner Rights Information System of Maryland, Inc., all on brief), Chestertown, for petitioner.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, ¹ RAKER, WILNER and CATHELL, JJ ELDRIDGE, Judge.

The Maryland Parole Commission has the statutory duty to "review and make recommendations to the Governor: (i) concerning parole of an inmate under a sentence of life imprisonment...." Maryland Code (1999), § 7-206(3) of the Correctional Services Article. With certain exceptions, "an inmate who has been sentenced to life imprisonment is not eligible for parole consideration until the inmate has served 15 years or the equivalent of 15 years considering the allowances for diminution of the inmate's term of confinement ...." § 7-301(d)(1) of the Correctional Services Article. Moreover, an inmate serving a term of life imprisonment, who is eligible for parole, "may only be paroled with the approval of the Governor." § 7-301(d)(4) of the Correctional Services Article.²

The principal issue in this habeas corpus case is whether the Governor's announcement in 1995 of his policy concerning approval or disapproval of parole for inmates serving life imprisonment terms constitutes an ex post facto law in violation of Article 1, § 10, cl. 1, of the Constitution of the United States and Article 17 of the Maryland Declaration of Rights. In addition, the petitioner has challenged the Governor's action on other grounds, and the respondent has questioned the propriety of adjudicating the issues in a habeas corpus proceeding.

I.

On January 14, 1969, the petitioner Walter Lomax was convicted of first degree murder and sentenced to life imprisonment. At the same time he was convicted of two counts of robbery and sentenced to imprisonment for terms of 10 years and 20 years to run concurrently with the life sentence. The offenses occurred in 1967.

Since his imprisonment, Lomax has been considered for parole at nine separate parole hearings. The Maryland Parole Commission recommended Lomax for parole in 1989, but then Governor Schaefer refused to approve the parole. The Parole Commission again recommended Lomax for parole in 1994. Governor Glendening rejected this recommendation on September 21, 1995. At the same time, the Governor rejected the Commission's recommendations that seven other inmates serving life imprisonment terms should be paroled.

In denying parole to Lomax and seven other inmates on September 21, 1995, Governor Glendening announced that he would not approve parole for any inmates sentenced to life imprisonment unless they were very old or terminally ill. The Governor's announcement went on to state that he had "directed the Parole [Commission] not to even recommend—to not even send to [his] desk—a request for parole for murderers and rapists."

Lomax subsequently filed in the Circuit Court for Baltimore City a petition for a writ of habeas corpus, asserting that the Governor's action had the effect of changing his life sentence with eligibility for parole to a life sentence without the possibility of parole, that this change violated the ex post facto clauses of the federal and state constitutions, and that the change resulted in Lomax being illegally imprisoned. Lomax further claimed that the actions of the Governor, and the alleged actions of the Parole Commission in no longer submitting parole recommendations of inmates serving life imprisonment to the Governor, violated the statutory provisions dealing with the parole of those sentenced to life imprisonment. The circuit court denied the habeas corpus petition, and Lomax appealed to the Court of Special Appeals. The intermediate appellate court, in an extensive opinion, rejected Lomax's various arguments and affirmed the circuit court's judgment. Lomax v. Warden, 120 Md.App. 314, 707 A.2d 395 (1998). Thereafter this Court granted both Lomax's petition for a writ of certiorari and the Warden's cross petition for a writ of certiorari. Lomax v. Warden, 350 Md. 280, 711 A.2d 871 (1998).

II.

We shall first address the Warden's argument, presented in the cross petition for a writ of certiorari, that a habeas corpus proceeding is not an appropriate vehicle for challenging the Governor's action because the petitioner "does not challenge the lawfulness of the underlying conviction and detention." (Respondent's brief at 24).

As this Court explained in Gluckstern v. Sutton, 319 Md. 634, 663, 574 A.2d 898, 912, cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990), "earlier [Maryland] cases may have taken a narrow view of the relief available in a habeas corpus proceeding, [but] more recent cases hold that the judge is entitled to tailor relief as justice may require." In the Gluckstern case, the respondent Sutton had been convicted of first degree murder committed in 1974, had been adjudicated a "defective delinquent" within the meaning of certain former statutory provisions, and had been committed to the Patuxent Institution for an indeterminate period pursuant to those former statutory provisions. At the time of Sutton's 1974 offense, and when he was committed to the Patuxent Institution, the Institutional Board of Review of the Patuxent Institution was authorized to parole an inmate in Sutton's position, and there was no requirement that the Board's decision in favor of parole be approved by the Governor. Statutes enacted in 1977 and 1982, however, had the effect of changing Sutton's indeterminate sentence to a sentence of life imprisonment and of requiring the Governor's approval before one in Sutton's position could be paroled by the Institutional Board of Review. Both in 1984 and in 1986 the Institutional Board of Review decided in favor of paroling Sutton, but on each occasion the Governor refused to approve the parole.

Subsequently Sutton filed a petition for a writ of habeas corpus, and the circuit court held that, under the ex post facto clauses of the federal and state constitutions, the requirement of gubernatorial approval could not be applied to Sutton. The circuit court ordered the Institutional Board of Review to hold a new parole hearing for Sutton and to determine, without gubernatorial interference, whether Sutton should be paroled. In affirming the circuit court's order in Gluckstern, this Court held that the requirement of gubernatorial approval could not be applied to Sutton because of the ex post facto clauses, and that "the ordering of a new parole hearing was an available type of relief in a habeas corpus case." 319 Md. at 664, 574 A.2d at 912. See Garrison v. State, 350 Md. 128, 138-143, 711 A.2d 170, 175-177 (1998); Beshears v. Wickes, 349 Md. 1, 5, 706 A.2d 608, 610 (1998); Patuxent v. Hancock, 329 Md. 556, 620 A.2d 917 (1993).

Consequently, a habeas corpus proceeding may be maintained even though the petitioner, if successful, may not be entitled to immediate release from imprisonment or to invalidation of the basis for the petitioner's detention. Habeas corpus actions may be maintained where the relief available is the ordering of a proceeding or hearing which may lead to the petitioner's release. In the present case, if the Governor's challenged action were held to be invalid, there is a possibility that Lomax would be released on parole. Under Gluckstern and other recent decisions, Lomax was entitled to bring a habeas corpus proceeding.

III.

Article 17 of the Maryland Declaration of Rights states:

"That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal, are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made...."

Article 1, § 10, cl. 1, of the Constitution of the United States provides that "No State shall ... pass any ... ex post facto Law...." The ex post facto prohibition applies "to penal statutes which disadvantage the offender affected by them." Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30, 38 (1990). The Supreme Court in Collins v. Youngblood, 497 U.S. at 42, 110 S.Ct. at 2719, 111 L.Ed.2d at 38-39, went on to quote Justice Chase's opinion in Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648, 650 (1798), concerning what is prohibited by the federal ex post facto clause:

"`1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. ... (Emphasis in original)."

See also Gluckstern v. Sutton, supra, 319 Md. at 664-672, 574 A.2d at 912-917, and cases there cited.

Under the plain language of the state and federal constitutions, however, the ex post facto prohibition applies only to a "law." It is true that the concept of a "law" for purposes of the prohibition is broader than a statute enacted by a legislative body, and may include some administrative regulations. United States v. Ellen, 961 F.2d 462, 465 (4th Cir.), cert. denied, 506 U.S. 875, 113 S.Ct. 217, 121 L.Ed.2d 155 (1992); Knox v. Lanham, 895 F.Supp. 750, 755-756 (D.Md.1995), aff'd, 76 F.3d 377 (4th Cir.1996); Faruq v. Herndon, 831 F.Supp. 1262, 1279 (D.Md.1993), aff'd, 56...