Morales v. California Dept. of Corrections, No. 92-56262

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtFLOYD R. GIBSON
Citation16 F.3d 1001
Docket NumberNo. 92-56262
Decision Date15 July 1993
PartiesJose Ramon MORALES, a/k/a Pablo Jose Ramon Morales, Petitioner-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS; E.R. Meyers, Warden; Attorney General of the State of California; Board of Prison Terms, Respondents-Appellees.

Page 1001

16 F.3d 1001
Jose Ramon MORALES, a/k/a Pablo Jose Ramon Morales,
Petitioner-Appellant,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS; E.R. Meyers, Warden;
Attorney General of the State of California;
Board of Prison Terms, Respondents-Appellees.
No. 92-56262.
United States Court of Appeals,
Ninth Circuit.
Submitted July 15, 1993 *.
Submission Deferred July 19, 1993.
Resubmitted Dec. 7, 1993.
Decided Feb. 9, 1994.

Page 1002

Jose R. Morales, pro per, petitioner-appellant.

Robin M. Miller, Deputy Attorney General, Los Angeles, California, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FLOYD R. GIBSON, ** HALL, and KLEINFELD, Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge:

Jose Morales appeals the district court's denial of his petition for a writ of habeas corpus. We affirm in part and reverse in part.

I. BACKGROUND

In 1971, Morales was convicted for the first degree murder of his girlfriend. When she was found, it was discovered that her thumb had been cut off. After being transferred to a half-way house in April 1980, he married a woman who had visited him during his incarceration. In May, Morales was paroled; his wife disappeared two months later. Approximately two weeks after she disappeared, her hand was discovered on the Hollywood Freeway in Los Angeles. Her body was never recovered.

Morales pleaded nolo contendere to the second degree murder of his wife and was sentenced to an imprisonment term of fifteen years to life. His earliest parole eligibility

Page 1003

date was August 2, 1990. On July 25, 1989, the California Board of Prison Terms ("the Board") conducted an initial parole consideration, found Morales unsuitable for parole, and set Morales' next hearing date three years later. Morales filed a petition for a writ of habeas corpus, alleging that 1) his rights under the ex post facto clause were violated when his next hearing date was scheduled three years later, 2) he was denied parole based on false and perjured information, and 3) he was not sentenced in accordance with California law. The magistrate judge recommended the writ be denied on counts two and three and issued as to count one. The district court adopted the magistrate's report and recommendation as to counts two and three and denied relief on count one. Morales has appealed pro se.

II. DISCUSSION

A. The Ex Post Facto Clause

Critical to the understanding of Morales' ex post facto claim is an understanding of the evolution of California's law regarding parole hearings. "Between 1972 and 1977, it was the judicially approved policy of California that prisoners should be accorded an annual parole suitability review, except that in extreme cases the review could be every two or three years." Connor v. Estelle, 981 F.2d 1032, 1034 (9th Cir.1992) (per curiam) (quotations omitted). During this time period, criminals were sentenced pursuant to California's Indeterminate Sentencing Law (ISL). Id. at 1033. In 1977, the California Legislature replaced the ISL with the Determinate Sentencing Law (DSL). The DSL mandated annual parole hearings, Cal.Penal Code Sec. 3041.5(b)(2) (1976), until it was amended in 1981 to allow the Board to decide, in particular situations, to defer a parole hearing for up to three years when the inmate's crime involved multiple murders. The DSL was again amended in 1982 to grant the Board the power to defer parole hearings for all crimes. See Watson v. Estelle, 886 F.2d 1093, 1094-95 & n. 1 (9th Cir.1989) (discussing evolution of this aspect of the DSL).

Article I, section 10 of the Constitution prohibits the states from passing ex post facto laws. The implications of this clause are unusually clear:

"It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."

Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925)) (emphasis added). A law violates the restriction if it is applied retrospectively and implicates these well-known concerns. Id., 497 U.S. at 46, 110 S.Ct. at 2721. 1 There can be no doubt that the law is being applied retrospectively; for ex post facto purposes, we examine "the actual state of the law at the time the defendant perpetrated the offense," Watson, 886 F.2d at 1096, and in this case California law required annual review when Morales killed his wife. 2 We thus proceed to the thornier aspect of the inquiry: whether the retrospective application of a law enlarging the time between parole hearings violates the protections envisioned by the clause or, instead, is it merely a procedural change in the law that lacks constitutional implication? 3

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By increasing the interval between parole hearings, the state has denied Morales opportunities for parole that existed under prior law, thereby making the punishment for his crime greater than it was under the law in effect at the time his crime was committed. Logic dictates that because a prisoner cannot be paroled without first having a parole hearing, a parole hearing is a requirement for parole eligibility. Akins v. Snow, 922 F.2d 1558, 1562 (11th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2915, 115 L.Ed.2d 1079 (1991). Accordingly, any retrospective law making parole hearings less accessible would effectively increase the sentence and violate the ex post facto clause. We base this conclusion on the Supreme Court's observation that the denial of parole is a part of a defendant's punishment. Warden v. Marrero, 417 U.S. 653, 662, 94 S.Ct. 2532, 2537, 41 L.Ed.2d 383 (1974). The Court went on to note that "a repealer of parole eligibility previously available to imprisoned offenders would clearly present the serious question under the ex cost facto clause...." Id. at 663, 94 S.Ct. at 2538; see also Weaver v. Graham, 450 U.S. 24, 32, 101 S.Ct. 960, 966, 67 L.Ed.2d 17 (1981) ("effective sentence is altered once" a determinant in the prisoner's prison term is changed). 4 Other circuits have held that "parole...

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12 practice notes
  • California Dept. Corrections v. Morales, 931462
    • United States
    • United States Supreme Court
    • April 25, 1995
    ...a suitability finding, the Board could consider when a prisoner became "suitable" for parole in setting the actual release date. Pp. __. 16 F.3d 1001 (CA 9 1994), reversed. THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, GINSBURG, and......
  • Thomas v. Yates, No. 1:05-cv-01198-LJO-JMD-HC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 17, 2009
    ...parole statute). The Ninth Circuit's ex post facto standard reached its outer limit in Morales v. California Dep't of Corrections, 16 F.3d 1001, 1004 (9th Cir. 1994) overruled by 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), in which the Ninth Circuit held, "any retrospective law ma......
  • U.S. v. Arzate-Nunez, ARZATE-NUNE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 28, 1994
    ...be applied to defendants whose predicate offenses occurred before its enactment. Id.; see also Morales v. California Dept. of Corrections, 16 F.3d 1001, 1004 (9th However, the statute at issue in the instant case has no such integral relationship with the defendant's predicate offense. Arza......
  • Public Safety v. Demby, No. 42, September Term, 2005.
    • United States
    • Court of Special Appeals of Maryland
    • January 17, 2006
    ...effectively increase the [prisoner's] sentence and violate the ex post facto clause,'" Id. (quoting Morales v. California Dep't of Corr., 16 F.3d 1001, 1004 (9th Cir.1994)), and held that Morales must be provided with the annual parole suitability hearings required by the law in effect when......
  • Request a trial to view additional results
12 cases
  • California Dept. Corrections v. Morales, 931462
    • United States
    • United States Supreme Court
    • April 25, 1995
    ...a suitability finding, the Board could consider when a prisoner became "suitable" for parole in setting the actual release date. Pp. __. 16 F.3d 1001 (CA 9 1994), reversed. THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, GINSBURG, and......
  • Thomas v. Yates, No. 1:05-cv-01198-LJO-JMD-HC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 17, 2009
    ...parole statute). The Ninth Circuit's ex post facto standard reached its outer limit in Morales v. California Dep't of Corrections, 16 F.3d 1001, 1004 (9th Cir. 1994) overruled by 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), in which the Ninth Circuit held, "any retrospective law ma......
  • U.S. v. Arzate-Nunez, ARZATE-NUNE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 28, 1994
    ...be applied to defendants whose predicate offenses occurred before its enactment. Id.; see also Morales v. California Dept. of Corrections, 16 F.3d 1001, 1004 (9th However, the statute at issue in the instant case has no such integral relationship with the defendant's predicate offense. Arza......
  • Public Safety v. Demby, No. 42, September Term, 2005.
    • United States
    • Court of Special Appeals of Maryland
    • January 17, 2006
    ...effectively increase the [prisoner's] sentence and violate the ex post facto clause,'" Id. (quoting Morales v. California Dep't of Corr., 16 F.3d 1001, 1004 (9th Cir.1994)), and held that Morales must be provided with the annual parole suitability hearings required by the law in effect when......
  • Request a trial to view additional results

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