Morales v. California Dept. of Corrections

• Decision Date: 15 July 1993
• Docket Number: No. 92-56262,92-56262
• Citation: 16 F.3d 1001
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

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.

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 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

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 eligibility must be considered part of any sentence." Akins, 922 F.2d at 1563 (case similar to the one at bar); see also Fender v. Thompson, 883 F.2d 303, 306 (4th Cir.1989) ("retrospective application of a statute modifying or revoking parole eligibility would" be ex post facto); United States ex rel. Graham v. United States Parole Comm'n, 629 F.2d 1040, 1043 (5th Cir.1980); Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir.1977) (disallowing consideration of parole factors expressly prohibited at the time the crime was committed). When Morales committed his crime, the crime he committed carried with it a punishment that included annual consideration for parole. By retroactively changing Morales' punishment to include consideration for parole only every three years, his sentence was made more onerous in violation of the ex post facto clause.

The respondents advance two primary arguments to support the retrospective application of the 1981 amendment. First, they argue that the change is merely procedural; second, they argue the change does not adversely affect Morales. We reject both contentions.

A purely procedural change in the law, even if applied retroactively, does not violate the ex post facto clause. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). A procedural change is one that alters the method used to make a determination; for instance, as in Dobbert, a statute that changes the role of the judge and jury in determining whether the death penalty should be imposed, id. at 293-94, 97 S.Ct. at 2298-99; or, as in Collins, a statute allowing an appellate court to reform an improper verdict instead of requiring a new trial. 497 U.S. at 52, 110 S.Ct. at 2724. However, a law that violates the core concerns of the ex post facto clause "is not merely procedural, even if the statute takes a seemingly procedural form." Weaver, 450 U.S. at 29 n. 12, 101 S.Ct. at 965 n. 12. The DSL's 1981 amendments do not simply change the procedures used to determine whether prisoners are entitled to parole or the methods used to insure compliance with the terms of parole; they eliminate the possibility of parole altogether in the period between hearings. Cf. Roller v. Cavanaugh, 984 F.2d 120, 124 (4th Cir.), cert. dismissed, --- U.S. ----, 114 S.Ct. 593, 126 L.Ed.2d 409 (1993). ⁵ As noted in Roller " 'statutes enacted or amended after a prisoner was sentenced cannot be applied to alter the conditions of or revoke his or her preexisting parole eligibility....' " Id. (quoting Fender, 883 F.2d at 306).

The respondents also contend the changes do not adversely affect Morales because it is unlikely that he would be granted parole within three years. This is irrelevant to the inquiry; Morales' claim does not depend on being able to demonstrate that he would have received parole sooner if he were granted annual parole hearings. See Flemming v. Oregon Bd. of Parole, 998 F.2d 721, 724-25 (9th Cir.1993). It also does not matter that Morales lacks a vested right in parole or a particular parole date. "The presence or absence of an affirmative, enforceable right is not relevant.... Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver, 450 U.S. at 30, 101 S.Ct. at 965.

B. The Denial of Parole

The Board found Morales unsuitable for parole because he has an unstable and criminal history,...