Paschal v. Wainwright

• Decision Date: 13 August 1984
• Docket Number: No. 82-3088,82-3088
• Citation: 738 F.2d 1173
• Parties: Albert E. PASCHAL, Petitioner-Appellant, v. Louie L. WAINWRIGHT, etc., Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1173

738 F.2d 1173

Albert E. PASCHAL, Petitioner-Appellant, v. Louie L. WAINWRIGHT, etc., Respondent-Appellee.

No. 82-3088.

United States Court of Appeals Eleventh Circuit.

Aug. 13, 1984.

Archibald J. Thomas, III, Asst. Federal Public Defender, Jacksonville, Fla., for petitioner-appellant.

Raymond L. Marky, Asst. Atty. Gen., Earl H. Archer, Gen. Counsel, Florida Parole & Probation Com'n, Tallahassee, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

The petitioner, Albert E. Paschal, is serving a life sentence in a Florida prison. The Florida Parole and Probation Commission has given him a presumptive parole release date of March 29, 1993. Petitioner contends that the Commission, in setting this release date, violated the ex post facto clause of Article I, Section 10, of the Constitution, and he seeks a writ of habeas corpus ordering the Commission to consider him for parole immediately. The district court found no ex post facto violation and denied the writ. We affirm.

I.

In 1970, petitioner was convicted of first degree murder in Duval County, Florida and sentenced to death. In 1972, the sentencing judge modified petitioner's sentence to life imprisonment, thus making petitioner eligible for parole at the discretion of the Florida Parole and Probation Commission (the Commission). The Commission first considered petitioner for parole in 1974. One of the Commission's hearing examiners interviewed petitioner and recommended that he not be paroled; the Commission followed this recommendation. The Commission denied petitioner parole again in 1975, 1976, 1977, and 1978, on each occasion following the recommendation of its hearing examiner.

In July 1978, the Florida legislature passed the Objective Parole Guidelines Act of 1978 (the Parole Act), Fla.Stat.Ann. Secs. 947.001-.24 (1983 Supp.). The Parole Act required the Commission to adopt parole "guidelines," creating presumptive parole release dates based on the "seriousness of the offense" committed and "the likelihood of a favorable parole outcome," and to consider these guidelines in making release decisions. Fla.Stat.Ann. Sec. 947.165 (1983 Supp.). In April 1979, the Commission, having promulgated guidelines as required by the Act, ¹ again considered petitioner for parole. The guidelines rated petitioner's first degree murder offense as "greatest most serious," the highest possible offense severity rating, and indicated that he was a poor parole risk. The guidelines called for a term of incarceration of 226 to 288 months. Following these guidelines, the Commission denied petitioner parole because he had served only 111 months and gave him a "presumptive release date" of September 29, 1992 conditioned on his maintaining satisfactory "institutional conduct." Fla.Stat.Ann. Sec. 947.1745 (1983 Supp.). When petitioner did not maintain such conduct, committing several disciplinary infractions, the Commission, drawing on its authority under the Parole Act, extended his presumptive release date to March 29, 1993.

A few months prior to the Commission's extension of petitioner's presumptive release date petitioner instituted mandamus proceedings against the Commission in the Florida District Court of Appeal to compel the Commission to consider him for immediate parole. He alleged that the guidelines were invalid because they precluded the Commission from considering him for parole "at any time," as it could under prior law, and thus had effectively extended his term of imprisonment. This, petitioner argued, imposed punishment not in existence at the time of his offense and violated the ex post facto prohibition of the U.S. Constitution. The Florida court summarily refused to issue the requested writ of mandamus. Petitioner, having exhausted his state remedies, then brought these habeas corpus proceedings in the district court, presenting the same ex post facto claim and seeking immediate parole consideration. He requested an evidentiary hearing to prove that the Commission, operating under the new Parole Act, had ceased considering him eligible for parole.

The district court rejected petitioner's claim as insufficient as a matter of law. Comparing the Commission's authority under the Parole Act with that accorded the Commission under the prior law, the court concluded that the Act in no way limited the Commission's discretion to grant parole. Nor did the guidelines limit the Commission's discretion; instead, they merely served to "clarify the procedure utilized [by the Commission] in making [parole] decision[s]." In sum, there was no ex post facto violation.

Petitioner appeals. Considering Florida's sentencing and parole model in light of governing case law and the policies underpinning the ex post facto clause, we agree with the district court and hold that the Commission's application of the Parole Act to petitioner's case in setting his presumptive parole release date did not violate the ex post facto clause.

II.

The U.S. Constitution contains two ex post facto clauses, one applicable to the states, article 1, section 10, clause 1, and one to the federal government, article 1, section 9, clause 3. In this appeal we consider the clause addressed to the states: "No state shall ... pass any ... ex post facto law."

The Supreme Court has held that three critical elements must be present to establish an ex post facto clause violation: the statute must be a penal or criminal law, ² retrospective, ³ and disadvantageous to the offender because it may impose greater punishment. ⁴ Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). A law may violate the ex post facto prohibition even if it "merely alters penal provisions accorded by the grace of the legislature," id. at 30-31, 101 S.Ct. at 965; it need not impair a "vested right." Id. A law which is merely procedural and does not add to the quantum of punishment, however, cannot violate the ex post facto clause even if it is applied retrospectively. Id. at 32-33 & n. 17, 101 S.Ct. at 966 & n. 17. See Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977) ("even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto."); see also Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). With these principles in mind, we consider whether petitioner has stated an ex post facto claim.

The second element of an ex post facto claim is plainly present in this case; the Parole Act and the Commission's guidelines were applied retrospectively to petitioner. The third element is not present, however an examination of the parole process both before and after the Parole Act shows that neither the Parole Act nor the guidelines have operated to petitioner's detriment. Since this essential element of an ex post facto claim is missing, we need not address the remaining question, whether the Parole Act and the guidelines are penal or criminal laws.

A.

At the time of petitioner's crime, September 25, 1968, the Florida sentencing model was a creature of legislative, judicial, and executive prerogative. The legislature prescribed the type and range of sanctions that could be imposed for committing a given crime. The sentencing judge selected the sanction to be handed down in the case before him; if the sentence fell within the legislative prescription it was immune from judicial review. Dickinson v. State, 170 So.2d 594, 595 (Fla.App.1965); accord, Wilkinson v. State, 322 So.2d 620 (Fla.App.1975). The defendant's only recourse was to the Governor ⁵ or the Parole Commission. Stanford v. State, 110 So.2d 1, 2 n. 4 (Fla.1959); accord, Michell v. State, 154 So.2d 701, 703 (Fla.App.1963). If the defendant was serving a prison sentence, the Commission could parole him subject to any conditions that would ensure that his release was "compatible with [his] welfare and the welfare of society." Fla.Stat.Ann. Sec. 947.18 (1973). Parole was "not an act of amnesty or forgiveness--as some suppose[d but r]ather, ... a continuation of sentence." Sellers v. Bridges, 153 Fla. 586, 15 So.2d 293, 295 (1943). It was granted as a matter of grace, not as a matter of right. ⁶

At the time petitioner committed the first degree murder in this case, Florida maintained a "medical model" sentencing and corrections scheme ⁷ for felony inmates like petitioner and for inmates with multiple misdemeanor sentences aggregating more than one year. Rehabilitation was a primary goal of the corrections process. See, e.g., Fla.Stat.Ann. Sec. 947.13(1)(f)(2); 947.17(2), (5) and (6); 947.20; and 947.21 (1973). The Commission pursued this goal by monitoring the inmate's rehabilitative progress and, when parole was otherwise indicated, releasing him from custody if he showed himself to be a good parole risk. Otherwise, the inmate remained incarcerated for his full term.

In deciding whether to grant parole, the Commission considered many criteria. See Fla.Stat.Ann. Secs. 947.17(2); 947.18 (1973); Florida Probation and Parole Commission, Twenty-eighth Annual Report (1968). These criteria included whether the inmate's release would depreciate the seriousness of the crime he committed or promote disrespect for the law, whether that crime was so serious that further punishment was needed, the inmate's prior criminal record including previous probation or parole violations, whether his prison adjustment and violation of prison rules required more time to be served, whether his release would adversely affect institutional discipline, whether he took advantage of opportunities for self-improvement while incarcerated, and whether continued incarceration would permit him to avail himself of needed correctional or medical treatment or vocational...