Powell v. Ducharme, 92-35427

• Decision Date: 09 July 1993
• Docket Number: No. 92-35427,92-35427
• Citation: 998 F.2d 710
• Parties: Robert Patrick POWELL, Petitioner-Appellee, v. Kenneth DUCHARME, Superintendent, Washington State Reformatory, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 710

998 F.2d 710

62 USLW 2115

Robert Patrick POWELL, Petitioner-Appellee, v. Kenneth DUCHARME, Superintendent, Washington State Reformatory, Respondent-Appellant.

No. 92-35427.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1992.

Decided July 9, 1993.

Thornton Wilson, Asst. Atty. Gen., Olympia, WA, for respondent-appellant.

John Midgley, Evergreen Legal Services, Seattle, WA, for petitioner-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, HUG, and POOLE, Circuit Judges.

HUG, Circuit Judge:

This case involves the issue of whether the State of Washington's retroactive application of a law authorizing the Indeterminate Sentence Review Board to set minimum terms of incarceration for inmates serving mandatory life sentences is a violation of the Ex Post Facto Clause of the United States Constitution.

I.

In 1975, Robert Patrick Powell was convicted in the State of Washington for first degree murder. Following a jury trial, Powell was sentenced by the trial judge to life imprisonment with the possibility of parole.

At the time Powell was convicted, Washington law required the courts to set the maximum sentence for first degree murder at life imprisonment. Wash.Rev.Code Ann. §§ 9A.32.040, 9.95.010 (West 1988). Under former Washington parole law, an inmate sentenced to life for first degree murder had to serve a mandatory minimum sentence of 20 years, minus time credited for good behavior, before he or she could be considered for parole. Wash.Rev.Code Ann. § 9.95.115 (West 1988) (amended 1989). Once the inmate had served the mandatory minimum term of imprisonment, the inmate had to acquire a certification of meritorious conduct and recommendation for parole from the superintendent of the institution. Id. The superintendent exercised absolute discretion in deciding when, and if, a certification would be granted. See Wash.Rev.Code Ann. § 9.95.115 (West 1988) (amended 1989); Matter of Powell, 117 Wash.2d 175, 814 P.2d 635, 642 (1991). Only after the superintendent certified an inmate as parolable could the Board of Prison Terms and Paroles (later designated the Indeterminate Sentence Review Board) ("Board") consider that inmate for parole. The Board, like the superintendent, exercised absolute discretion in determining whether it would grant a parole hearing to a particular certified inmate. See Powell, 814 P.2d at 638, 641. If the Board decided to grant a parole hearing, it would then consider all the factors pertaining to the inmate's criminal history as well as the inmate's conduct while incarcerated. Under former Washington law, therefore, an inmate serving a life sentence never knew when, or if, he or she would be considered for parole. See id. at 640.

In 1989, the Washington legislature passed Substitute House Bill ("SHB") 1457, amending the former parole law. SHB 1457, 1989 Washington Laws, Ch. 259; Wash.Rev.Code Ann. §§ 9.95.009, .013, .115, .116 (West Supp.1992). SHB 1457 does not change the requirement that persons convicted of first degree murder and sentenced to the mandatory term of life imprisonment serve no less than 20 years, minus time credited for good behavior. Wash.Rev.Code Ann. § 9.95.115 (West 1988 & West Supp.1992). Under the new statute, however, the Board is required to "fix the duration of confinement" for persons committed to the custody of the department of corrections under a mandatory life sentence, for crimes committed before July 1, 1984. See Wash.Rev.Code Ann. §§ 9.95.009, .116 (West Supp.1992).

SHB 1457 eliminated the requirement of section 9.95.115 that an inmate obtain a certification from the superintendent before that inmate could be considered by the Board for parole. Under the new statute, the Board must attempt to determine the minimum term an inmate must serve with reference to Washington's Sentencing Reform Act ("SRA"), Wash.Rev.Code Ann. §§ 9.94A.010 et seq.; § 9.95.009(2) (West Supp.1992). The Board must also attempt to follow the minimum term recommendations of the sentencing judge and the prosecuting attorney. Id. When setting the term of confinement, the Board must consider statements submitted by the sentencing judge or prosecuting attorney concerning the facts of the crime and any other information they possess relative to the convicted person. Wash.Rev.Code Ann. § 9.95.030. The Board must also consider any victim impact statement, and any statement submitted by an investigative law enforcement officer. Wash.Rev.Code Ann. § 9.95.116(2) (West Supp.1992). The Board may depart from the SRA guidelines if it gives written justification for the departure. See Wash.Rev.Code Ann. § 9.95.009(2) (West Supp.1992).

The purpose of SHB 1457 is to require the Board to begin setting discretionary minimum terms for persons serving life sentences. At the time of Powell's conviction, "[t]he provisions of RCW 9.95.040, which required the Board to set minimum sentences, were not applied to persons serving mandatory life sentences." Powell, 814 P.2d at 640 (footnote omitted). Under SHB 1457, once an inmate serves the discretionary minimum term, that inmate must be considered for parole at the expiration of that term. Powell, 814 P.2d at 641-42. Under SHB 1457, the Board reviewed Powell's file, conducted a hearing, with Powell present, and set his minimum term of incarceration at 380 months. Powell argues that this is a violation of the Ex Post Facto Clause because it has effectively moved the earliest date at which he can be considered for parole from 20 years minus good time, to over 30 years minus good time. He contends that retroactive application of the new law has restricted opportunities for earlier release that were previously available to him.

Powell first sought a writ of habeas corpus in the state courts of Washington. Powell alleged that SHB 1457 not only violated the Ex Post Facto Clause, but also contended that the law violated the Equal Protection Clause and violated his rights to due process of law. In a 5 to 4 opinion, the Supreme Court of Washington held that none of Powell's claims were meritorious, and therefore denied his petition. Id. at 649-650. The Washington Court briefly discussed and rejected Powell's due process and equal protection arguments, and focused primarily on whether the law violated the Ex Post Facto Clause. The Washington Court found no ex post facto violation because, on the whole, the new law actually benefitted Powell by providing certainty as to when he could be considered for parole. Id. at 639-40.

Powell next sought relief from the federal district court. Upon recommendation from the magistrate judge, the district court granted Powell's writ of habeas corpus. The district court, focusing exclusively on the ex post facto question, disagreed with the Washington Supreme Court. The district court held that the Washington Court had greatly overexaggerated the ameliorative effects of SHB 1457. The court found that the new law caused substantial disadvantage to Powell, and held that Powell had been deprived of an opportunity for a parole hearing at the time he had served the mandatory minimum term of incarceration.

The State of Washington timely appealed the district court's grant of Powell's writ of habeas corpus. The district court had jurisdiction under 28 U.S.C. § 2254, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court's decision to grant or deny a writ of habeas corpus de novo. Creech v. Arave, 947 F.2d 873, 876 (9th Cir.1991), cert. granted, --- U.S. ----, 112 S.Ct. 2963, 119 L.Ed.2d 585 (1992).

II.

A state law violates the Ex Post Facto Clause of the United States Constitution if it imposes punishment for an act that was not punishable when committed, or if it increases the amount of punishment beyond that authorized at the time the act was committed. Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 963, 964, 67 L.Ed.2d 17 (1981). The critical factor in the ex post facto analysis is lack of notice and governmental restraint when a legislature increases punishment beyond what was prescribed when the act was committed. Id. at 30, 101 S.Ct. at 965. Although a law may disadvantage a prisoner, it does not violate the Ex Post Facto Clause unless the law is substantive in nature and not merely procedural. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).

In the present case, both parties agree that SHB 1457 is being retroactively applied, and is a substantive change to former Washington parole law. Our analysis, therefore, is concerned with whether SHB 1457 is, as a whole, ameliorative or disadvantageous to Powell. Washington Supreme Court interpretations of Washington law are binding on this court unless we determine such interpretations to be untenable, or a veiled attempt to avoid review of federal questions. See Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir.), cert. denied, 493 U.S. 942, 110 S.Ct. 344, 107 L.Ed.2d 332 (1989). However, whether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor is a federal question. Weaver, 450 U.S. at 33, 101 S.Ct. at 966.

In Weaver, the Supreme Court held that a law restricting an inmate's opportunity for earlier release violated the Ex Post Facto Clause. Id. at 33-34, 101 S.Ct. at 966-967. In determining whether the new law is ameliorative or disadvantageous to Powell, we must compare the opportunities available to Powell under the former law with the opportunities available to him under SHB 1457. Only if an opportunity available under the previous law has been restricted or taken away can an argument be made that the new law is somehow detrimental in its retroactive application.

Powell's argument boils down to an assertion that he has lost the opportunity to be considered for parole at the mandatory minimum term of incarceration. Powell bases this assertion on two...