Maggard v. Wyrick, 85-2119

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 800 F.2d 195
• Docket Number: No. 85-2119,85-2119
• Parties: Russell R. MAGGARD, Appellant, v. Donald WYRICK, Appellee.
• Decision Date: 02 September 1986

Page 195

800 F.2d 195 Russell R. MAGGARD, Appellant,
v.
Donald WYRICK, Appellee. No. 85-2119. United States Court of Appeals,
Eighth Circuit. Submitted May 16, 1986.
Decided Sept. 2, 1986.

Page 196

Ray Conrad, Federal Public Defender, Kansas City, Mo., for appellant.

John Oldenburg, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, HEANEY and JOHN R. GIBSON, Circuit Judges.

LAY, Chief Judge.

In 1969, Russell Maggard was sentenced to life imprisonment in a Missouri state court upon his plea of guilty for the first degree murder of a deputy sheriff during the course of an armed robbery. In June, 1983, the Missouri Board of Probation and Parole (the Board) refused to release Maggard on parole at that time citing as its reason that it "would depreciate the seriousness of the offense committed or promote disrespect for the law."

After exhausting his state remedies, Maggard filed this petition for a writ of habeas corpus in United States District Court for the Western District of Missouri. ¹ Maggard challenges the Board's refusal to grant him parole contending that the statute giving the Board its authority was not effective until 1982, see Mo.Ann.Stat. Sec. 217.690 (Vernon 1983), and therefore the Board's reliance on that statute in rendering its decision violated the ex post facto clause of the United States Constitution. U.S. Const. art. I, Sec. 10, cl. 1. Maggard further contends that the Board's refusal to permit him to examine his parole file violated his right to due process of law. The district court denied issuance of the writ holding that the Board's reason for denying parole would have satisfied the requirements for denial under the previous statute, Mo.Ann.Stat. Sec. 549.261 (repealed 1982), as well as the present one and Maggard was not prejudiced by the application of the newer statute. Thus, the district court reasoned there was no ex post facto violation. The court further held that Maggard had no liberty interest in parole release under either statute and, therefore, there was no due process violation. This appeal followed.

Denial of Parole Release

An ex post facto law is one "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." Cummings v. Missouri,

Page 197

1 U.S. (4 Wall) 277, 325-26, 18 L.Ed. 356 (1867); see also Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963-64, 67 L.Ed.2d 17 (1981). The purpose of the prohibition against ex post facto legislation is to give individuals fair warning of the effect of legislative acts, Weaver, 450 U.S. at 28, 101 S.Ct. at 963-64, and to restrain the government from passing arbitrary and vindictive legislation, id. at 29, 101 S.Ct. at 964; Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). Accordingly, the Supreme Court has cited two crucial elements necessary to establish an ex post facto violation: (1) the law must be retrospective, that is, it must apply to events occurring before its enactment; and (2) the law must disadvantage the offender making the ex post facto challenge. Weaver, 450 U.S. at 29, 101 S.Ct. at 964.

At the time Maggard committed his offense, Mo.Ann.Stat. Sec. 549.261 stated: "When in its opinion there is reasonable probability that the prisoner can be released without detriment to the community or to himself, the board shall release on parole any person confined in any correctional institution administered by state authorities." (Emphasis added). In 1982, the Missouri legislature renumbered and amended the statute to read: "When in its opinion there is reasonable probability that an inmate of a state correctional institution can be released without detriment to the community or to himself, the board may in its discretion release or parole such person." Mo.Ann.Stat. Sec. 217.690(1) (emphasis added). ² Maggard argues that under the former statute, parole release was mandatory once the Board found that the statutory criteria had been satisfied. ³ Under the statute as amended, however, given the same findings, parole release is purely discretionary with the Board. This, Maggard contends, operates as a retrospective increase in his punishment and is therefore an ex post facto law.

In Burnside v. White, 760 F.2d 217 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985), a habeas corpus petitioner was sentenced in 1974 to serve a 60-year sentence in a Missouri state prison. He was denied parole by the Board in 1983 pursuant to the new parole statute, section 217.690. The inmate claimed that section 217.690 as applied to him was an ex post facto law. We applied the two-factor test set forth in Weaver and held that although the Board applied the statute retrospectively, there was no ex post facto violation because the inmate's parole release would have been denied under the former statute as well. Id. at 223. The Board cited the seriousness of the offense as its reason for denying the inmate's parole, and we observed that the release of an offender convicted of a serious crime may be a detriment to the community. Id. at 222.

The same reasoning applies in the present case. There is no dispute that the application of...