Glascoe, Eric v. Bezy, Mark A. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3466
ERIC A. GLASCOE,
Petitioner-Appellant,
v.
MARK A. BEZY,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 03 C 134—John Daniel Tinder, Judge.
____________
ARGUED JUNE 1, 2005—DECIDED AUGUST 30, 2005
____________
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Eric A. Glascoe is a District of
Columbia prisoner currently held in the United States
Penitentiary in Terre Haute, Indiana. Glascoe’s parole
application was reviewed and denied under parole guide-
lines enacted approximately fourteen years after his
conviction. Glascoe filed a petition for writ of habeas corpus,
challenging the denial of parole under the Constitution’s Ex
Post Facto Clause. The petition was dismissed by the
district court. We affirm.
2 No. 03-3466
I. History
Glascoe was convicted of sodomy and assault with intent
to commit rape while armed, crimes which involved kidnap-
ping his victim, forcing her to perform oral sex, and at-
tempting to rape her at knifepoint. Glascoe v. United States,
514 A.2d 455, 458-59 (D.C. 1986). For this he was sen-
tenced, in 1985, to life in prison. He was required to serve
a minimum of 220 months before becoming eligible for
parole. In a separate proceeding, Glascoe was convicted of
attempting to throw his girlfriend out of a third-story
apartment window and of slashing her face with broken
glass. The sentence for this conviction, also entered in 1985,
was three to nine years’ imprisonment. The two sentences
were to be served consecutively, resulting in an aggregate
minimum term of 21 years and 4 months. The parties agree
that Glascoe became eligible for parole September 23,
1999.1
In 1985, when Glascoe was sentenced, parole decisions
were made by the District of Columbia Board of Parole (the
“Board”) according to the guidelines it had promulgated in
1981. Under these guidelines, the Board had discretion to
grant parole after a prisoner’s minimum sentence had been
served if it found “a reasonable probability that [the]
prisoner will live and remain at liberty without violating
the law, [and] that his release is not incompatible with the
welfare of society[.]” 9 D.C.R.R. § 105 (1981). The 1981
guidelines also directed the Board to take into account the
following six factors in making its parole determination:
1
The Sentence Computation Forms included in Glascoe’s
appendix also indicate a parole eligibility date of September 23,
1999, and an aggregated minimum term of 21 years and 4 months.
Considering that the offenses were committed in late 1983, it is
unclear how the 21 years and 4 months were served by 1999;
nevertheless, because both sides agree that Glascoe was eligible
for parole in 1999, we proceed to the merits of Glascoe’s challenge.
No. 03-3466 3
(a) The offense, noting the nature of the violation,
mitigating or aggravating circumstances and the
activities and adjustment of the offender following
arrest if on bond or in the community under any pre-
sentence type arrangement.
(b) Prior history of criminality noting the nature and
pattern of any prior offenses as they may relate to the
current circumstances.
(c) Personal and social history of the offender, including
such factors as his family situation, educational devel-
opment, socialization, marital history, employment
history, use of leisure time and prior military experi-
ence, if any.
(d) Physical and emotional health and/or problems
which may have played a role in the individual’s
socialization process, and efforts made to overcome any
such problems.
(e) Institutional experience, including information as to
the offender’s overall general adjustment, his ability to
handle interpersonal relationships, his behavior re-
sponses, his planning for himself, setting meaningful
goals in areas of academic schooling, vocational educa-
tion or training, involvements in self-improvement
activity and therapy and his utilization of available
resources to overcome recognized problems. Achieve-
ments in accomplishing goals and efforts put forth in
any involvements in established programs to overcome
problems are carefully evaluated.
(f) Community resources available to assist the offender
with regard to his needs and problems, which will
supplement treatment and training programs begun in
the institution, and be available to assist the offender
to further serve in his efforts to reintegrate himself
back into the community and within his family unit as
a productive useful individual.
4 No. 03-3466
Id. § 105.1.
In 1998, the responsibility for making parole determina-
tions was transferred to the United States Parole Commis-
sion (the “Commission”). See D.C. Code § 24-131. The
Commission constructed new parole guidelines in 1999,
found at 28 C.F.R. § 2.80 (1999).2 The 1999 guidelines
provide for calculation of a parole eligibility score based on
point values for certain pre- and post-incarceration factors.
See id. The first step in calculating an applicant’s total
score is to determine his Salient Factor Score (“SFS”), which
is based on the following factors: (1) number of
prior convictions adjudicated; (2) prior commitments of
more than 30 days; (3) age when offense was com-
mitted; (4) recent commitment-free period; (5) proba-
tion/parole/confinement/escape violations; and (6) older
offender status. See 28 C.F.R. § 2.20 (1999). The SFS is
converted to a Base Point Score based on the violence in the
underlying offense and other offenses. See 28 C.F.R. § 2.80(1999). Points may then be added for negative institutional
behavior such as assault on a correctional staff member,
possession of a weapon, fire-setting, drugs, or rioting. See
id. Finally, points may be subtracted for achievement in the
area of prison programs, industries, or work assignments.
See id. A higher total score translates to a lower likelihood
of parole. The 1999 guidelines grant the Commission
discretion to make parole decisions outside of the parame-
ters described above in “unusual circumstances” where
relevant, case-specific factors that are not adequately taken
into account are present. See id.Approximately two months before Glascoe’s parole
eligibility date, in July 1999, he had a hearing before the
2
The 1999 guidelines no longer apply to District of Columbia
offenders as they were replaced by another set of presumptive
guidelines. See 28 C.F.R. § 2.80 (2004).
No. 03-3466 5
Commission. Employing the 1999 guidelines, the Commis-
sion denied parole. First, Glascoe was given an SFS based
on two prior convictions, no prior commitments of 30 days,
his age at the time of the offense (23), and a recent
commitment-free period. This SFS was adjusted upward for
violence in the underlying offense, so Glascoe had a Base
Point Score of 5. Two points were added to that score for
negative institutional behavior: fighting with another
inmate in 1991, threatening to kill a correctional officer in
1993, and possession of an 8½-inch shank in 1995. Glascoe
had two other incidents of bad behavior which were noted
in his hearing summary but not presented in the pre-
hearing review: he possessed a razor blade in 1993, and he
sent a threatening letter to his girlfriend in 1996. With
these points added, and a point subtracted for ordinary
program achievement, Glascoe was left with a total score of
6 points, which translated to a denial of parole (an inmate
scoring 3 or higher was denied parole under the guidelines)
and a rehearing in 18 to 24 months. Finding that Glascoe
was a “more serious risk than indicated by [his] Base Point
Score,” that he was “an offender with deep seated homicidal
impulses toward female victims . . . not likely to be deterred
by [his] present incarceration[,]” and that, given his prison
record, “prison programming is not likely to achieve . . .
rehabilitation within the time frame allowed[,]” the Com-
mission exercised its discretion to delay Glascoe’s rehearing
until he served 60 additional months in prison.
Glascoe had been incarcerated at the Sussex II State
Prison in Waverly, Virginia, at the time of his parole
hearing. Arguing that use of the 1999 guidelines violated
the Ex Post Facto Clause, he filed a writ of habeas corpus
in the District Court for the District of Columbia in Septem-
ber 2001. Glascoe was later moved to the United States
Penitentiary in Terre Haute, Indiana. His petition was
transferred to the District Court for the Southern District
of Indiana in May 2003. The district court rejected Glascoe’s
6 No. 03-3466
ex post facto challenge and dismissed his petition with
prejudice in September 2003.
II. Analysis
The question of whether the Commission’s application of
the 1999 guidelines, as opposed to those in effect at the time
of Glascoe’s conviction, violates the Constitution’s Ex Post
Facto Clause is a question of law which must be reviewed
de novo. See Rodriguez v. United States, 286 F.3d 972, 978
(7th Cir. 2002). The Constitution prohibits Congress from
passing any ex post facto law. U.S. Const. art. I, § 9, cl. 3.
In order to fall within the ex post facto prohibition, a “law
must be retrospective, that is, it must apply to events
occurring before its enactment; and . . . it must disadvan-
tage the offender affected by it.” Miller v. Florida, 482 U.S.
423, 430 (1987) (internal quotations and citations omitted).
We addressed an ex post facto challenge to parole guide-
lines in Prater v. U.S. Parole Commission, 802 F.2d 948 (7th
Cir. 1986) (en banc). In that case, the petitioner was denied
parole under guidelines that were promulgated after his
crime was committed. Id. at 951. There were also different
parole statutes in force at the time of his conviction and the
time of his parole hearing, but the changes were “of form
rather than substance” and the two statutes were deemed
to “have the same meaning.” Id. at 955. We held that the
petitioner was not subjected to ex post facto punishment
because the guidelines under which he was sentenced were
simply a statutorily authorized interpretation of the parole
statute rather than an exercise of delegated legislative
authority which would amount to a “law” for constitutional
purposes. Id. at 953-54. Noting that there was adequate
evidence that parole would have been denied under the old
statute with an offense so egregious as the petitioner’s, the
en banc court vacated the panel’s original decision to
remand the case in order to give the petitioner a chance to
No. 03-3466 7
show that the new statute as administered (with the new
guidelines) was harsher than the old statute as adminis-
tered. See id. at 956.
The Supreme Court subsequently entertained an ex post
facto challenge to parole procedures in Garner v. Jones, 529
U.S. 244 (2000). The inmate in Garner argued that a new
rule changing the frequency of required reconsideration
hearings for inmates serving life sentences from every three
years to every eight years was unconstitutional. Id. at 247.
The Court stated that the new rule was not facially more
onerous than the former rule, so the controlling inquiry was
whether retroactive application of the new rule “create[d] a
significant risk of prolonging respondent’s incarceration.”
Id. at 251. Finding that the record was insufficient to show
whether the change in parole law would lengthen the
inmate’s actual time in prison, the Court remanded the case
for a determination of fact as to whether the new rule
created a significant risk of increased punishment. Id. at
256.
Glascoe urges that Prater must be overruled in light of
Garner, and that Garner compels a review of Glascoe’s
parole application under the 1981 guidelines. We do not
agree that Prater categorically denies the possibility that
parole guidelines could be subject to the Ex Post Facto
Clause. See Prater, 802 F.2d at 954 (stating that the parole
guidelines were not laws within the meaning of the Ex Post
Facto Clause “at least so far as relevant to this case”).
Similarly, Garner does not categorically bring every change
in parole guidelines within the realm of the Ex Post Facto
Clause—even when, as is arguable in this case, the new
guidelines may be harsher in some factual circumstances.
See Garner, 529 U.S. at 255 (decreasing frequency of
rehearings not a per se ex post facto violation). What
Garner does do is confirm the possibility that changes to
parole practices may, in some instances, violate the Ex Post
Facto Clause and provides the test for determining whether
8 No. 03-3466
a violation has occurred: when the new practice is not
harsher than the old one on its face, there is an ex post
facto problem if the new practice “created a significant risk
of increasing [the inmate’s] punishment.” See id.In considering whether a facial challenge to the 1999
guidelines in this case can succeed, we find it important
that in Garner the Supreme Court reversed the Eleventh
Circuit, which had supposed that the new parole rule
changing frequency of rehearing from every three years to
every eight years “ ‘seem[ed] certain’ to result in some
prisoners serving extended periods of incarceration.” Id. A
new rule decreasing the frequency of parole hearings was
not deemed facially more onerous for inmates. Id.; cf.
Henderson v. Scott, 260 F.3d 1213, 1217 (10th Cir. 2001)
(finding statutory amendment providing for less frequent
parole reconsideration not to be an ex post facto violation on
its face). The difference between the 1999 guidelines used
at Glascoe’s parole hearing and the 1981 guidelines in force
at the time of his conviction presents an even weaker case
for a facial ex post facto problem. Both sets of guidelines
applied the same parole statute. See D.C. Code §24-204.
The later guidelines consider many of the same factors as
the earlier guidelines, including the nature of the underly-
ing offense and institutional behavior. The later guidelines
quantify these factors—preserving the discretion of the
parole decision-making body—ostensibly in an effort to
increase uniformity and predictability.
The proper question to ask, then, is whether the new
procedure creates a significant risk of increased punish-
ment for Glascoe. This is not to be confused with the
question of whether the new parole practice is harsher for
a class of prisoners generally; we must focus on the conse-
quence of the new practice on the sentence of the particular
inmate bringing the challenge: “[the petitioner] must show
that as applied to his own sentence the law created a
No. 03-3466 9
significant risk of increasing his punishment.” Garner, 529
U.S. at 255. Indeed, the Supreme Court stated in a decision
five years before Garner that “the focus of the ex post facto
inquiry is not on whether a legislative change produces
some ambiguous sort of ‘disadvantage,’ . . . but on whether
any such change . . . increases the penalty by which a crime
is punishable.” California Dep’t of Corrections v. Morales,
514 U.S. 499, 506 n.3 (1995). This approach has been taken
by a number of other courts in the wake of Garner as well.
See, e.g., Henderson, 260 F.3d at 1217 (“[Petitioner] could
still prevail upon a showing that . . . application [of a
statute increasing time between parole hearings] in his case
would result in a significant risk of a longer period of
incarceration.”); Pindle v. Poteat, 360 F. Supp. 2d 17, 20
(D.D.C. 2003) (addressing an ex post facto challenge of the
same 1999 guidelines in this case and stating that the issue
was whether these guidelines resulted in an “increase in
the time in which petitioner is likely to spend in custody”).
The answer to this question in Glascoe’s case makes it
unnecessary for us to evaluate the government’s argument
that the parole procedures under attack in this case are
simply discretionary guidelines, unlike statutes or the
“rules” addressed in Garner, and not within the ambit of the
Ex Post Facto Clause. See Warren v. Baskerville, 233 F.3d
204, 208 (4th Cir. 2000) (holding, post-Garner, that a
change in administrative parole policy revoking previously
earned good time credits was not subject to the Ex Post
Facto Clause); Pindle, 360 F. Supp. 2d at 20 (collecting
authority for the proposition that parole guidelines cannot
be considered “laws” for purpose of the Ex Post Facto
Clause). But see Fletcher v. District of Columbia, 391 F.3d
250, 251 (D.C. Cir. 2004) (holding that parole guidelines are
subject to the Ex Post Facto Clause). Even assuming the
guidelines at issue in Glascoe’s case are within the realm of
the Ex Post Facto Clause, Glascoe cannot show that the
10 No. 03-3466
application of the 1999 guidelines created a significant risk
of increased punishment for him.
The Commission denied parole for Glascoe on the basis of
his extremely violent crimes and his institutional miscon-
duct. These factors would have been considered under the
1981 guidelines, which clearly enumerated both as relevant
to a parole decision. Moreover, the Commission exercised its
discretion—as it would have been entitled to do under the
1981 guidelines as well—to depart from the guidelines and
set Glascoe’s rehearing for 60 months later rather than the
18-24 months indicated by Glascoe’s score. Explaining its
decision to depart from the guidelines, the Commission
stated that Glascoe was “a more serious risk than indicated
by [his] Base Point Score,” that he had “deep seated homi-
cidal impulses toward female victims . . . not likely to be
deterred by [his] present incarceration,” and that his
“prison record further indicates that prison programming is
not likely to achieve . . . rehabilitation within the time
frame allowed by [his] point score.” There can be no doubt
that the Commission would have denied parole for Glascoe
had it been operating under the 1981 guidelines, which only
allowed parole if the released prisoner would “live in society
without violating his parole conditions” and “release was
not incompatible with the welfare of society.” At the most,
“it is only remote speculation to suggest that the application
of the [1999 guidelines] in Mr. [Glascoe’s] case will increase
his punishment[.]” See Henderson, 260 F.3d at 1217.
Glascoe asserts that he is entitled, at a minimum, to a
remand and a chance to engage in discovery to show that a
change in parole guidelines adversely impacted his applica-
tion. Discovery in habeas corpus actions is extremely
limited. See Bracy v. Gramley, 520 U.S. 899, 904 (1997).
This is not a case with “good cause” that warrants discov-
ery. See Matta-Ballesteros v. Henman, 896 F.2d 255, 259
(7th Cir. 1990). Although Glascoe contrasts the “rehabilita-
No. 03-3466 11
tive” purpose of the 1981 guidelines with the “punitive”
nature of the 1999 guidelines, he has not presented evi-
dence of rehabilitation that would cause him to fare better
under the 1981 guidelines, which, if it exists, would be
obtainable without formal discovery procedures. Glascoe
does claim that he stopped using drugs in 1996. We note
that the bad behavior of threatening his girlfriend took
place in that same year, and that achievement in prison
programs is, in fact, a possible way to get a better score
under the 1999 guidelines.3
III. Conclusion
There might be a case where application of the 1999
guidelines rather than the 1981 guidelines substantially
increases an inmate’s risk of increased punishment so as to
violate the Ex Post Facto Clause. There might also be a case
where discovery could be required to determine whether or
not an inmate would fare worse under the later guidelines.
But this is not such a case; the record shows that Glascoe
would have been denied parole under either set of guide-
lines, and there is no ex post facto violation. The district
court’s dismissal of Glascoe’s petition for writ of habeas
corpus is AFFIRMED.
A true Copy:
Teste:
3
Glascoe received a one-point reduction for “ordinary” achieve-
ment in prison programs. Two points may be deducted for “supe-
rior” program achievement, and per the guidelines, “[t]he Com-
mission may, in its discretion, grant more than a 2 point deduc-
tion” in exceptional cases. 28 C.F.R. § 2.80 (1999).
12 No. 03-3466
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-30-05