Martin v. Lowe , 86 F.3d 1166 ( 1996 )

86 F.3d 1166

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Vance C. MARTIN, Petitioner-Appellant,
v.
Commandant, Col. Gregory A. LOWE, Respondent-Appellee.

No. 95-3229.

United States Court of Appeals, Tenth Circuit.

May 29, 1996.

Before ANDERSON, BARRETT and LOGAN, Circuit Judges.

1

ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. We grant the right to appeal in forma pauperis because on its face the complaint raises a colorable claim of a constitutional violation.

3

Petitioner Vance C. Martin, a prisoner in the United States Disciplinary Barracks in Fort Leavenworth, Kansas, appeals from the denial of his federal habeas corpus petition. He asserts that application of an amendment to Department of Defense Directives governing parole and clemency procedures which is more restrictive than that in place when he was convicted and sentenced violates the Ex Post Facto Clause of the Constitution. As a result of the amendment, instead of receiving annual clemency and parole consideration beginning in 1989, petitioner was not considered until 1992.

4

The district court found that modification of the directive indeed "violated ex post facto principles by retroactively increasing the length of time to be served before a military inmate could be considered for parole." I R. doc. 21 at 2. The district court reasoned, however, that because petitioner has received annual clemency and parole hearings since December 1993 (in which clemency and parole were denied), he has received all the relief to which he is entitled. Cf. Devine v. New Mexico Dep't of Corrections, 866 F.2d 339, 347 (10th Cir.1989) (when inmate's punishment was retroactively enhanced by modified parole statute he must be provided a parole hearing before the time period provided for by the prior statute expires; if not he must be released).

5

We have reviewed petitioner's brief and the record and are satisfied that the district court accurately summarized the facts and correctly applied the law. A habeas corpus petitioner who has been deprived of timely parole and clemency consideration is entitled to a prompt hearing, not release. See, e.g., Jones v. Bureau of Prisons, 903 F.2d 1178, 1181 (8th Cir.1990); cf. McNeal v. United States, 553 F.2d 66, 68 (10th Cir.1977) (delay in providing parole revocation hearing not per se violation of due process requiring that inmate be released). This appeal is controlled by Jefferson v. Hart, entered this day. See Jefferson v. Hart, No. 95-3025 (10th Cir. May 29, 1996).

6

AFFIRMED.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3