Koch v. Daniels , 296 F. App'x 621 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
October 7, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CHRISTOPHER E. KOCH,
Plaintiff-Appellant,
v. No. 07-6210
J. D. DANIELS, Assistant Director of (D.C. No. 5:07-CV-00015-HE)
the Oklahoma Pardon and Parole (W. D. Oklahoma)
Board,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Plaintiff-Appellant Christopher Koch filed this pro se action under 42
U.S.C. § 1983, alleging that 1997 and 1998 amendments to the Oklahoma parole
statutes resulted in ex post facto punishment and violated his due process rights.
The district court dismissed the case for failure to state a claim upon which relief
could be granted. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
I.
In 1981, Koch was tried for and convicted of Murder in the First Degree in
Oklahoma state court. He received a life sentence with the possibility of parole,
which he is currently serving with the Oklahoma Department of Corrections.
Under the parole system in existence at the time of Koch’s conviction, the Pardon
and Parole Board (“Board”) would annually consider for parole any inmate
serving forty-five years or longer, including a life sentence, after he or she had
served fifteen years. See Shirley v. Chestnut, 603 F.2d 805, 806-07 (10th Cir.
1979) (describing the features of this system). Accordingly, Koch first became
eligible for parole in 1996.
As a response to prison overcrowding, in 1988 the Oklahoma legislature
created a system known as preparole conditional supervision (“preparole”). See
1988 Okla. Sess. Laws 310, § 8. In Young v. Harper, 520 U.S. 143 (1997), the
Supreme Court described the essential features of preparole:
[Preparole] was in effect whenever the population of the prison
system exceeded 95% of its capacity. An inmate could be placed on
preparole after serving 15% of his sentence, and he was eligible for
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parole when one-third of his sentence had elapsed. The Pardon and
Parole Board (Board) had a role in the placement of both parolees
and preparolees. The Board itself determined who could participate
in [preparole], while the Governor, based on the Board’s
recommendation, decided whether a prisoner would be paroled. . . .
[P]articipants in preparole were released subject to constraints
similar to those imposed on parolees.
Id. at 145 (citations omitted). According to Koch, he was initially considered for
and denied preparole in 1995. He further alleges that from 1996 to 1998, the
Board considered him for and denied him both parole and preparole annually.
In 1997, the Oklahoma legislature enacted the Truth in Sentencing Act,
which amended the statute authorizing preparole and replaced preparole with
“specialized parole.” See 1997 Okla. Sess. Laws 133, § 28. The eligibility
requirements for specialized parole differ from the eligibility requirements for
preparole in several key respects. The availability of specialized parole does not
depend on prison capacity. See Okla. Stat. tit. 57, § 365. Under the new regime,
only inmates within one or two years of their projected release dates are eligible
for specialized parole. Id. As a result of this amendment, Koch was no longer
considered for preparole beginning in 1999.
In 1998, the Oklahoma legislature further amended the parole statutes,
authorizing the Board to defer parole consideration for up to three years for any
individual who had been convicted of a violent crime and who had been denied
parole previously. See Okla. Stat. tit. 57, § 332.7(D)(1). As a result of this
amendment, after being considered for and denied parole in 1998, Koch was
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considered again only in 2001 and 2005, rather than annually, and was denied
parole both times.
On January 4, 2007, Koch filed this § 1983 action against J.D. Daniels in
his official capacity as Deputy Director of the Oklahoma Pardon and Parole
Board. Koch alleged that the 1997 and 1998 amendments to the parole statutes
constituted ex post facto punishments and violated his due process rights. Koch’s
complaint was referred to a United States magistrate judge for preliminary review
pursuant to 28 U.S.C. § 636(b)(1)(B). Before Daniels had filed an answer to the
complaint, the magistrate judge issued a Report and Recommendation determining
that Koch’s complaint failed to state a claim upon which relief could be granted
and recommending that the complaint be dismissed pursuant to 28 U.S.C. §
1915A(b)(1) 1 and 42 U.S.C. § 1997e(c)(1). 2 Specifically, the Report and
Recommendation concluded that the 1997 and 1998 amendments did not produce
a sufficient risk of increasing Koch’s punishment and thus did not violate the Ex
Post Facto Clause, and that Koch had no constitutionally-cognizable liberty
1
28 U.S.C. § 1915A(b)(1) provides in pertinent part that a court conducting
preliminary review in civil cases in which a prisoner seeks relief from a
governmental entity “shall identify cognizable claims or dismiss the complaint, if
the complaint . . . is frivolous, malicious, or fails to state a claim upon which
relief may be granted . . . .”
2
42 U.S.C. § 1997e(c)(1), a part of the Prisoner Litigation Reform Act of
1996, applies to suits by prisoners challenging prison conditions under 42 U.S.C.
§ 1983 and permits a court to dismiss such a suit “if the court is satisfied that the
action is frivolous, malicious, [or] fails to state a claim upon which relief can be
granted . . . .”
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interest in annual consideration for parole or in consideration for preparole. The
Report and Recommendation also concluded that Koch’s claims accrued no later
than 2001, when he should have known that he was no longer being considered
for preparole or for parole on an annual basis, and that the claims were thus
barred by Oklahoma’s two-year statute of limitations.
Koch filed an objection to this Report and Recommendation. On July 10,
2007, the district court, having considered Koch’s objections, adopted the Report
and Recommendation and dismissed Koch’s claims with prejudice.
II.
A. Jurisdiction and the Mailbox Rule
“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement,” and in the absence of a timely notice of appeal, a case “must be
dismissed for want of jurisdiction.” Bowles v. Russell, — U.S. —, 127 S. Ct.
2360, 2366 (2007) (quotation marks and citation omitted). Pursuant to 28 U.S.C.
§ 2107(a) and Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure,
Koch’s notice of appeal was due within thirty days of entry of judgment. The
final judgment from which Koch appeals was entered on July 10, 2007, and
Koch’s notice of appeal was therefore due by August 9, 2007. His notice of
appeal, however, was not filed in the district court until August 10, 2007.
Due to the untimely filing of Koch’s notice of appeal, this court issued an
order directing Koch to show cause why his appeal should not be dismissed. In
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response, Koch filed a response stating that he placed his notice of appeal into the
prison’s “legal mail box . . . located within the prison law library” on August 8,
2007. Aplt. Resp. to Show Cause Order at 1 ¶ 1. Attached to the response as
Exhibit B was a document titled “Request to Staff,” which stated that Koch
deposited an envelope addressed to the district court into the prison’s mail system
on August 8. This document was signed by an unidentified person, presumably
an employee of the prison’s mail room.
As an inmate confined in an institution, Koch’s filings are subject to the
“prison mailbox rule” set forth in Rule 4(c)(1) of the Federal Rules of Appellate
Procedure, which provides that “[i]f an inmate confined in an institution files a
notice of appeal in either a civil or a criminal case, the notice is timely if it is
deposited in the institution’s internal mail system on or before the last day for
filing.” Thus, under this rule, “a notice of appeal filed by a prisoner is deemed
filed on the date the prisoner deposits the notice in the prison mail system, and
not on the date when it is received by the clerk of the court.” Ingram v. Jones,
507 F.3d 640, 643 (7th Cir. 2007) (citing Houston v. Lack, 487 U.S. 266, 275-76
(1988)). Rule 4(c)(1) also provides that
[i]f an institution has a system designed for legal mail, the inmate
must use that system to receive the benefit of this rule. Timely filing
may be shown by a declaration in compliance with 28 U.S.C. § 1746
or by a notarized statement, either of which must set forth the date of
deposit and state that first-class postage has been prepaid.
We have read Rule 4(c)(1) to provide two ways for an inmate to establish
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timely filing under the prison mailbox rule. Price v. Philpot, 420 F.3d 1158, 1165
(10th Cir. 2005). An inmate can show timely filing
by either (1) alleging and proving that he or she made timely use of
the prison’s legal mail system if a satisfactory system is available, or
(2) if a legal system is not available, then by timely use of the
prison’s regular mail system in combination with a notarized
statement or a declaration under penalty of perjury of the date on
which the documents were given to prison authorities and attesting
that postage was prepaid.
Id. at 1166 (citing United States v. Ceballos-Martinez, 387 F.3d 1140, 1144-45
(10th Cir. 2004)). The appellant bears the burden of proving compliance with the
rule. Id. at 1165.
After Koch filed his response to the show cause order, this court appointed
counsel to represent him on appeal. Appointed counsel subsequently filed, and
this court granted, a motion to supplement the record with (a) a “joint stipulation
of jurisdictional facts” wherein the parties agreed that Koch had deposited his
notice of appeal in the prison’s legal mail system on August 8, 2007; (b) a copy
of the prison’s legal mail log showing that Koch deposited his notice of appeal on
August 8; and (c) a description of the prison’s legal mail procedures. In addition,
Koch filed a “supplemental declaration of compliance” in this court. In this
declaration, which is notarized, Koch swears “under penalty of perjury” that his
notice of appeal was placed in the prison’s legal mail system on August 8, 2007
“with first-class postage prepaid.” See Aplt. Br., Attach. A. These documents,
taken together, are sufficient to establish that Koch used the legal mail system
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under the first test. Thus, Koch has proven that his notice of appeal was timely
filed in accordance with the “prison mailbox rule,” and that we have jurisdiction
to consider this appeal.
B. The District Court’s Dismissal
We review de novo the dismissal of a complaint for failure to state a claim
pursuant to 28 U.S.C. § 1915A and/or 42 U.S.C. § 1997e(c)(1). McBride v. Deer,
240 F.3d 1287, 1289 (10th Cir. 2001). “[I]n reviewing the dismissal of a
complaint, all well-pleaded facts, as distinguished from conclusory allegations,
must be taken as true. In addition, we will take the allegations in the plaintiff’s
objections to the magistrate’s report and recommendation as true.” Id. (citation,
quotations, and alterations omitted).
1. Alleged Ex Post Facto Violation
The United States Constitution prohibits states from passing any “ex post
facto Law.” U.S. Const. art. I, § 10, cl. 1. As the Supreme Court explained, this
clause “forbids the imposition of punishment more severe than the punishment
assigned by law when the act to be punished occurred.” Weaver v. Graham, 450
U.S. 24, 30 (1981). “Retroactive changes in laws governing parole of prisoners,
in some instances, may be violative of this precept.” Garner v. Jones, 529 U.S.
244, 250 (2000). A retroactive change to a parole law violates the Ex Post Facto
Clause if it creates “a sufficient risk of increasing the measure of punishment
attached to the covered crimes.” Id. (quoting California Dep’t of Corr. v.
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Morales, 514 U.S. 499, 509 (1995)).
A retroactive law may not violate the Ex Post Facto Clause on its face, yet
may still be applied in a way that increases a convict’s punishment and therefore
violates the Clause. Id. at 255-57. Where, however, “the rule does not by its own
terms show a significant risk” of heightened punishment, to succeed on an as-
applied challenge, “the petitioner must demonstrate, by evidence drawn from the
rule’s practical implementation, that its retroactive application will result in a
longer period of incarceration than under the earlier rule.” Henderson v. Scott,
260 F.3d 1213, 1216 (10th Cir. 2001) (citation, quotation marks, and alterations
omitted). In prior decisions, this court has concluded that the amendments to the
Oklahoma parole system that are at issue in Koch’s appeal do not violate the Ex
Post Facto Clause. While these cases do not address the specific circumstances of
Koch’s case, they provide a starting point for addressing his contentions.
In Powell v. Ray, 301 F.3d 1200 (10th Cir. 2002), this court considered
whether the 1997 amendment that eliminated preparole violated the Ex Post Facto
Clause. “[T]he controlling inquiry” for this purpose was whether “the elimination
of [preparole] created more than a speculative risk that [an inmate’s] prison term
would be increased.” Id. at 1203. We noted that under the pre-1997 statute, “the
determination of whether a prisoner would be entitled to [preparole] was wholly
discretionary” on the part of the Board. Id. at 1204. As a result, it was “pure
speculation” for Powell to argue that the elimination of preparole increased the
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term of his incarceration or prolonged his punishment, particularly where he had
been denied parole just over a year after he would have been considered for
preparole. Id.
Similarly, in Henderson, 260 F.3d at 1216-17, this court rejected an ex post
facto challenge to the 1998 amendment lengthening for violent criminals the
period between parole reviews from one to three years. Noting that the Supreme
Court had previously rebuffed similar challenges to California and Georgia
statutory amendments, see Garner, 529 U.S. at 254; Morales, 514 U.S. at 510-11,
this court concluded that the Oklahoma amendment also passed constitutional
muster. In reaching this conclusion, we specifically noted that the amendment:
(1) “does not change the length of the sentence in any way”; (2) “does not affect
the timing of the initial parole consideration, only of subsequent parole
consideration dates”; (3) “reserves the Board’s discretion to reconsider parole
before the three-year period has expired”; and (4) permits the Board to “modify
parole consideration dates if the Board receives new information.” Henderson,
260 F.3d at 1216-17; see also Seegars v. Ward, 124 F. App’x 637, 638-39 (10th
Cir. 2005) (affirming dismissal of plaintiff’s complaint for failure to state a claim;
change to plaintiff’s parole eligibility dates “could not have altered the definition
of criminal conduct nor increased punishment for a crime”).
Koch acknowledges these cases. He argues, however, that they do not
foreclose relief in the present case because these prior cases considered the
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elimination of preparole and the lengthening of parole consideration periods from
one to three years in isolation, and did not consider “the cumulative impact” of
the 1997 and 1998 amendments. Aplt. Br. at 36. He argues that even if the 1997
and 1998 amendments, taken alone, do not give rise to an ex post facto violation
(either facially or as applied to the facts of his case), when they are taken together
they create a risk of increased punishment.
Even assuming that the cumulative impact of otherwise enforceable laws
can constitute an ex post facto violation, this theory does not aid Koch. As
stated, the Ex Post Facto Clause “forbids the imposition of punishment more
severe than the punishment assigned by law when the act to be punished
occurred.” Weaver, 450 U.S. at 30 (emphasis added). Preparole did not exist
until it was created by statute in 1988, long after Koch’s 1981 conviction. By
later eliminating preparole, the legislature did not increase Koch’s potential
punishment beyond what it had been when he committed his crime in 1981, but at
most returned it to what it was in 1981. Thus, even under Koch’s “cumulative
impact” theory, the only impact that matters for ex post facto purposes is the
impact of the 1998 amendment, which lengthened the period between parole
reviews from one year, as was the practice at the time of Koch’s crime and
conviction, to three years. As discussed, this court held in Henderson that the
1998 amendment does not constitute a facial ex post facto violation.
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2. Alleged Due Process Violation
The district court, adopting the magistrate judge’s Report and
Recommendation, concluded that Koch’s due process claims should be dismissed
because Koch had no constitutionally-protected liberty interest in either preparole
consideration or in annual consideration for parole. The Due Process Clause
“only applies when government action deprives a person of liberty or property.”
United States v. Hampshire, 95 F.3d 999, 1005 (10th Cir. 1996) (quoting
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)).
Thus, although the Due Process Clause provides both substantive and procedural
protections, as an essential component of any due process analysis under 42
U.S.C. § 1983, we must first address whether the plaintiff has identified a liberty
or property interest of which he or she has been deprived. Nichols v. Bd. of
County Comm’rs, 506 F.3d 962, 969 (10th Cir. 2007).
“A liberty interest may arise from the Constitution itself, by reason of
guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or
interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209,
221 (2005) (citations omitted). Here, Koch claims that the 1997 and 1998
amendments violated his “liberty interest in parole and in participation in the
parole consideration process.” Aplt. Br. at 38. He admits that “[t]here is no
constitutional or inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence,” and concedes that he therefore has no
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constitutionally-derived interest in the parole and preparole consideration
procedures. Id. (quoting Greenholtz, 442 U.S. at 7). He argues, however, that the
statutes relating to preparole and parole created such an interest. See Sandin v.
Conner, 515 U.S. 472, 483-84 (1995) (“[S]tates may under certain circumstances
create liberty interests which are protected by the Due Process Clause.”). We
disagree with Koch’s characterization of the statutes at issue.
A statute that “holds out the possibility of parole provides no more than a
mere hope that the benefit will be obtained,” and this hope “is not protected by
due process.” Greenholtz, 442 U.S. at 11 (emphasis in original). A plaintiff may
establish more than “mere hope” in a particular outcome where a decisionmaker’s
discretion is limited by rule or statute, requiring a particular outcome in given
circumstances. Nichols, 506 F.3d at 970. Where, however, the decisionmaker
“retains discretion and the outcome of the proceeding is not determined” in
advance, “no property interest is implicated.” Id. (citation omitted).
Koch concedes that this court has concluded that the Oklahoma statutes
governing parole and preparole create no liberty or property interest: the decision
whether to grant parole or preparole to an inmate lies firmly within the discretion
of the Board, the Department of Corrections, and/or the governor. See Boutwell
v. Keating, 399 F.3d 1203, 1213-15 (10th Cir. 2005) (holding inmate had no due
process interest in preparole where statute placed no limitations on the Board’s
decision to recommend preparole placement or Department of Corrections’
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decision to grant or deny preparole); Shirley, 603 F.2d at 807 (holding inmate had
no due process interest in parole where statute placed no limitations on Parole
Board’s decision to recommend parole or governor’s decision to grant or deny
parole). Koch responds to these cases by arguing that “the framework which
these cases apply is fundamentally flawed by overreliance on the discretionary
nature of the statutory scheme and thus insufficiently protects rights properly
secured to the inmates by the Due Process Clause.” Aplt. Br. at 39. We are,
however, “bound by the precedent of prior panels absent en banc reconsideration
or a superseding decision by the Supreme Court.” Shubargo v. Astrue, 498 F.3d
1086, 1088 n.1 (10th Cir. 2007) (quoting In re Smith, 10 F.3d 723, 724 (10th Cir.
1993)). Koch suggests that these precedential cases should be overruled, but he
points to no authority upon which we could base such action.
The result is no different if Koch’s asserted interest is not the grant of
parole or preparole, but merely his annual consideration for those programs. If
Koch has no constitutionally-protected liberty interest in parole or preparole, he
can have no interest in how often he is considered for them, or even whether he is
considered for them at all. See Olim v. Wakinekona, 461 U.S. 238, 251 n.12
(1983) (“[A]n expectation of receiving process is not, without more, a liberty
interest protected by the Due Process Clause.”). Rather, “a liberty interest . . . is
a substantive interest of an individual; it cannot be the right to demand needless
formality. Process is not an end in itself. Its constitutional purpose is to protect a
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substantive interest to which the individual has a legitimate claim of entitlement.”
Id. at 250 (citations omitted); see also Town of Castle Rock v. Gonzales, 545 U.S.
748, 763 (2005) (stating that an entitlement to “nothing but procedure” cannot be
“the basis for a property interest”). Because there are no constitutionally-
protected interests in the process at issue, and because he failed to show an
entitlement to a liberty interest in parole or preparole, Koch’s due process claims
fail.
3. Statute of Limitations
Having concluded that there is no merit to Koch’s ex post facto or due
process claims, we need not consider the district court’s application of the statute
of limitations.
III.
We affirm the district court’s dismissal for failure to state a claim upon
which relief could be granted.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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