Ben E. Jones v. State of Florida Parole Commission

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12738
________________________
D.C. Docket No. 6:13-cv-00745-PCF-DAB
BEN E. JONES,
Plaintiff-Appellant,
versus
STATE OF FLORIDA
PAROLE COMMISSION,
ET AL.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 2, 2015)
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Before MARCUS and JILL PRYOR, Circuit Judges, and HINKLE, * District
Judge.
HINKLE, District Judge:
In this case a Florida prisoner challenges a statute widening the permissible
gap between parole interviews. The district court dismissed the complaint for
failure to state a claim on which relief can be granted. We affirm.
I
A Florida state court convicted the appellant Ben E. Jones on two counts of
sexual battery. The crimes occurred in December 1978 and February 1979. The
court sentenced Mr. Jones to life in prison. His offenses were parole eligible.
At that time Florida law required the Florida Parole Commission to conduct
an initial interview and subsequent interviews at least every two years. Fla. Stat.
§§ 947.172, 947.174(1) (1978); see also Tuff v. State, 732 So. 2d 461, 462 n.1
(Fla. 3d DCA 1999) (noting the every-two-year requirement).
In 2001, the Legislature adopted a statute allowing the Parole Commission
to schedule interviews up to five years apart for offenders convicted of specific
serious crimes, including sexual battery. Ch. 2001-124, Laws of Fla. (2001). In
2010, the Legislature adopted a statute allowing the Commission to increase the
interval to seven years. Ch. 2010-95, Laws of Fla. (2010).
*
Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
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Mr. Jones’s most recent interview was in 2012. The complaint alleges that
Mr. Jones’s next interview is scheduled for five years later. Mr. Jones filed this
federal lawsuit in 2013 challenging the Commission’s procedures on various
grounds, including on the ground that the five-year interval between interviews
violates the Ex Post Facto Clause.
The district court screened the complaint at the outset as required by the
Prison Litigation Reform Act. See 28 U.S.C. § 1915A. The court dismissed the
complaint for failure to state a claim on which relief can be granted. The court
relied on Penoyer v. Briggs, 206 F. App’x 962 (11th Cir. 2006) (unpublished),
which affirmed the dismissal of a complaint challenging on Ex Post Facto grounds
the Florida statute that increased the permissible interval between parole interviews
to five years.
Mr. Jones moved for reconsideration, asserting, among other things, that it
was error to dismiss the complaint without leave to amend. Mr. Jones did not
tender an amended complaint or suggest what new allegations any amended
complaint would include. The district court denied the motion for reconsideration.
Mr. Jones appeals. We address the Ex Post Facto claim and reject Mr.
Jones’s other claims without discussion.
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II
To avoid dismissal for failure to state a claim on which relief can be granted,
a complaint must include “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint’s factual allegations,
though not its legal conclusions, must be accepted as true. Id.; see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Mr. Jones is proceeding pro se. A pro se pleading is held to a less stringent
standard than a pleading drafted by an attorney; a pro se pleading is liberally
construed. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). Even so, a pro
se pleading must suggest (even if inartfully) that there is at least some factual
support for a claim; it is not enough just to invoke a legal theory devoid of any
factual basis.
We review de novo a district court’s sua sponte dismissal for failure to state
a claim for relief under 28 U.S.C. § 1915A(b). Harden v. Pataki, 320 F.3d 1289,
1292 (11th Cir. 2003).
III
In 1983, Florida abolished parole for most new crimes. Ch. 83-87, Laws of
Fla. (1983). But offenders who, like Mr. Jones, committed crimes before that time
remain eligible for parole. The Florida Parole Commission (now known as the
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“Florida Commission on Offender Review”) is the agency that administers the
parole system.
The general framework that applied when Mr. Jones committed his crimes
remains in place today. A hearing examiner conducts an initial interview and
determines the offender’s presumptive parole release date (“PPRD”) based on
objective guidelines. Subsequent interviews are “limited to determining whether
or not information has been gathered which might affect the presumptive parole
release date.” Fla. Stat. § 947.174(1) (1978). A PPRD can be modified only (1)
based on new information, (2) based on institutional conduct, or (3) “for good
cause in exceptional circumstances.” Fla. Stat. §§ 947.16(4), 947.172(3),
947.173(3) (1978); McKahn v. Fla. Parole and Prob. Comm’n, 399 So. 2d 476, 478
(Fla. 1st DCA 1981).
The Florida Legislature has twice modified § 947.174 to allow the Parole
Commission to extend the interval between subsequent interviews for offenders
convicted of specific serious crimes, including sexual battery. Mr. Jones did not
challenge the first increase, to five years, when it took effect in 2001, and the
statute of limitations has run on any challenge to that increase. See Lovett v. Ray,
327 F.3d 1181, 1182-83 (11th Cir. 2003) (holding that the limitations period for a
challenge to a change in the frequency of parole consideration runs from the date
when the offender learns of the change, not the date of parole consideration, and
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that the continuing-violation doctrine does not apply). But Mr. Jones now
challenges the scheduling of his next interview five years out, and, at least in this
court, Mr. Jones challenges the statutory increase in the permissible interval
between interviews to seven years, which took effect in 2010. His challenge to
that increase is not time barred.
IV
The United States Constitution prohibits a state from passing an “ex post
facto Law.” U.S. Const. art. I, § 10. The prohibition extends to laws that
“retroactively alter the definition of crimes or increase the punishment for criminal
acts.” Collins v. Youngblood, 497 U.S. 37, 43 (1990). This includes an increase
in punishment resulting from a change in a state’s parole system.
A
The Supreme Court has twice considered—and twice rejected—an Ex Post
Facto challenge to a state’s increase in the interval between parole reviews.
First, in California Department of Corrections v. Morales, 514 U.S. 499
(1995), an offender committed a crime while a statute was in effect that required
the state parole board to conduct an initial hearing and subsequent hearings at least
annually. An amendment allowed the parole board to increase the interval between
hearings to two years, upon a finding (on a basis stated by the parole board) that
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the offender was unlikely to be paroled during the interim. Id. at 512-13. The
parole board could conduct a hearing sooner if warranted. Id. at 513.
The Ninth Circuit held that the amendment violated the Ex Post Facto
Clause. Morales v. Cal. Dep’t of Corr., 16 F.3d 1001 (9th Cir. 1994). The
Supreme Court reversed, concluding that a change in parole procedures violates
the Ex Post Facto Clause only if it creates a sufficient risk that offenders will
actually serve more time in prison. See id. at 509, 514. The Court explicitly
declined to adopt a test for determining when a risk is sufficient, but the Court said
not every conceivable risk is enough. Id. at 509. And the Court said the
amendment at issue did not create a sufficient risk; it created “only the most
speculative and attenuated possibility of producing the prohibited effect”—that is,
of increasing offenders’ punishment. Id. at 510.
Similarly, in Garner v. Jones, 529 U.S. 244 (2000), an offender committed a
crime in Georgia while the state parole board’s policies called for consideration of
parole every three years. The board changed the policies to increase the interval to
eight years. Id. at 247. The policies vested the board with discretion to set an
earlier date and allowed an offender to seek expedited review upon a change in
circumstances. Id. at 254.
We held that the change in policies violated the Ex Post Facto Clause. Jones
v. Garner, 164 F.3d 589 (11th Cir. 1999). But again the Supreme Court disagreed.
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The Court said the issue was whether the new policies created a significant risk of
prolonging the offender’s time in prison and that nothing inherent in the new
policies created such a risk. 529 U.S. at 252. The Court remanded for this court or
the district court to consider whether the offender should be allowed discovery into
the actual effect of the new policies in operation.
B
Together Morales and Jones compel rejection of the claim that the Florida
statutory change at issue here is facially unconstitutional. Here, as in Morales and
Jones, the interval between parole assessments has increased. But here, as in
Morales and Jones, the substantive policies that govern parole have remained the
same. And here the risk that the change will increase an offender’s actual
punishment is no greater than—indeed, probably less than—the risk in Morales or
Jones.
This is so because here, as in Morales, the Commission can delay a periodic
review only upon finding, on grounds set out in writing, that an offender is
unlikely to be paroled in the interim. Here, as in Morales and Jones, an earlier
periodic review can be scheduled, as a matter of discretion, if circumstances
change. And here, much more than in Morales or Jones, the scope of a periodic
review is limited. In Florida each offender has an objectively determined PPRD
that can be changed only on specified grounds. The subject of subsequent
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interviews is not a freewheeling consideration of factors that might impact a
discretionary parole decision; the subject of subsequent interviews is limited to
whether there are grounds to change the PPRD. At least on its face, this suggests
that the determination to delay an interview can be made more reliably, and the
chance that the delay will impact the actual parole date is less, than in California or
Georgia.
To be sure, Mr. Jones points to other differences in the California, Georgia,
and Florida provisions that he says cut the other way. The California change
applied to those convicted of two or more murders—a category one hopes is quite
small. The Georgia change applied to offenders serving life sentences. The
Florida change applies only to specific offenses, see Fla. Stat. § 947.174(1)(b), but
the category is broader than in California or Georgia. Still, Florida abolished
parole long ago, so the number of affected offenders may not be large. More
importantly, the Ex Post Facto Clause protects all comers; if the California or
Georgia change had violated the Clause, the fact that the change impacted only a
limited category of offenders would not have saved it. The critical issue is whether
a change creates a significant risk of producing the prohibited effect, not whether it
will have the prohibited effect on all of a state’s offenders or only a limited
category.
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Mr. Jones also complains that Florida law allows the Commission to
schedule an earlier interview based on changed circumstances but does not allow
an offender to initiate the process. Still, nothing in Florida law prohibits an
offender from bringing circumstances to the Commission’s attention and asking for
an earlier interview. That the offender cannot compel an earlier interview is not
surprising and does not meaningfully distinguish the case from Morales or Jones.
In California and Georgia, an offender can request, but cannot compel, earlier
consideration.
Here, as in Morales and Jones, nothing inherent in the state’s decision to
enlarge the maximum period between parole considerations poses a significant risk
that offenders will serve more time in prison. The Florida change is not facially
unconstitutional.
C
That leaves for consideration Mr. Jones’s claim that the Florida change is
unconstitutional as applied to him. The easiest answer may be that according to
Mr. Jones’s own complaint, he is scheduled for an interview just five years after
his last interview in 2012. The statutory increase in the maximum authorized
interval to seven years apparently has not affected Mr. Jones at all; if this is
correct, the change cannot yet have been unconstitutional as applied to him.
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More importantly, Mr. Jones has alleged no facts suggesting that an earlier
interview would make any difference in his case at all. In 2012, when the
Commission set Mr. Jones’s next interview five years out, the Commission was
required to find that he was unlikely to be paroled prior to that time. The
Commission was required to state the grounds for that determination in writing.
An earlier interview could make a difference only if Mr. Jones could qualify for a
change in his PPRD based on new information, based on institutional conduct, or
“for good cause in exceptional circumstances.” See Fla. Stat. §§ 947.16(4),
947.172(3), 947.173(3) (1978). Mr. Jones has not alleged facts showing any of
these prerequisites to a change in his PPRD. And although Mr. Jones says he
should have been given leave to amend his complaint, he did not proffer in the
district court, and he has not proffered even now, any facts showing any of the
prerequisites to a change in his PPRD.
In short, Mr. Jones has alleged no facts suggesting his parole prospects will
be different in 2017, or even in 2019, than they were in 2012. We have recognized
that in the absence of a showing that an earlier interview would have made a
difference, a delayed interview does not violate the Ex Post Facto Clause. See
Jones v. Ray, 277 F.3d 944, 946 (11th Cir. 2001).
Mr. Jones cites statistics showing a precipitous decline in the number of
offenders paroled in Florida. But the primary explanation for that decline is clear
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and unrelated to the change in the frequency of parole interviews. Florida
abolished parole in 1983. With every passing year—with every release of a
parole-eligible offender who has served an entire sentence or been paroled—the
number of parole-eligible inmates decreases. Florida would have had a precipitous
decline in the number of offenders released on parole with or without a change in
the interview schedule.
Mr. Jones also says he must participate in a transitional program to be
approved for parole but cannot enroll in the program until he nears release—a
catch-22 that denies him (and others) an opportunity for earlier-than-projected
release. The argument seems to confuse the cause with the effect. Completion of
the program does not cause parole eligibility. Instead, the program is provided
near a projected release date because that is when an offender will transition out of
prison and thus needs to participate in the program. In any event, there is no
apparent connection between any of this and the change in the interview schedule.
If, as seems unlikely, there is really a catch-22, then it exists whether interviews
are conducted every two or five or seven years.
Finally, Mr. Jones notes that he has already served more than 30 years on his
sentence and is 77 years old. The suggestion apparently is that he has served long
enough and should be paroled. But Florida law affords an offender no right to
parole, even after decades in prison or at age 77. Florida instead establishes a
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PPRD based on objective criteria and limits the circumstances under which the
PPRD can be changed. This was the substantive law when Mr. Jones committed
his crimes, and it is the substantive law now. The Ex Post Facto Clause affords an
offender no relief from the law that was in effect when a crime was committed.
Florida’s statutory change in the maximum permissible interval between
parole interviews is not unconstitutional as applied to Mr. Jones.
D
In reaching these conclusions, we have not overlooked our decisions
allowing offenders who challenged the Georgia policy change at issue in Jones to
take discovery or present evidence on the actual effects of the policy change. See
Jones v. Garner, 211 F.3d 1225, 1225 (11th Cir. 2000) (on remand from the
Supreme Court, remanding in turn to the district court “to determine, after
permitting sufficient discovery, whether the [new Georgia policy] in its operation
created a significant risk of increased punishment for” the plaintiff); Harris v.
Hammonds, 217 F.3d 1346, 1350 (11th Cir. 2000) (concluding that challenges to
the Georgia policy change must be addressed on a case-by-case basis, noting that
the case was decided in the district court before the Supreme Court decided Jones,
and remanding to provide the offender “the opportunity to make the showing
required by the Supreme Court in Jones.”).
Those cases are different from this one in three important respects.
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First, Jones and Harris arose in Georgia, where the substantive standards that
govern parole are much different than in Florida. When each subsequent
consideration of an offender’s possible parole is wide open, the chance that the
interval will make a difference is greater than when the issues at the subsequent
consideration are as circumscribed as in Florida. And in Florida, unlike in
Georgia, the interview can be delayed only on an explicit written finding that the
offender is unlikely to be paroled in the interim. The California statute at issue in
Morales had the same requirement for an explicit finding, and the Supreme Court
held the statute constitutional; the Court did not remand for further proceedings as
it did in Jones.
Second, the offenders in Jones and Harris had no advance notice, when they
originally presented their cases in the district court, of the standard the Supreme
Court would later adopt in Jones. This made it appropriate to give the offenders
another chance to plead and make a case in the district court.
And third, Mr. Jones, unlike the offenders in those cases, still has been
unable to allege facts that would make a difference—facts that, in Mr. Jones’s
case, would support a change in his PPRD and an earlier release. It is not enough
that the Florida change in the interview schedule conceivably could affect another
offender, or even many other offenders. Mr. Jones has alleged no facts plausibly
suggesting the change has adversely affected him. Even in Georgia, the absence of
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such a showing is fatal to an offender’s Ex Post Facto claim. See Jones v. Ray,
277 F.3d 944, 946 (11th Cir. 2001).
That other offenders under other circumstances were afforded an opportunity
to take discovery or present evidence does not mean that Mr. Jones is entitled to
the same opportunity. Mr. Jones has not alleged facts plausibly suggesting that he
is at a significant risk of increased time in prison as a result of the Florida statute
allowing longer intervals between parole interviews. The district court properly
screened Mr. Jones’s complaint as required by the Prison Litigation Reform Act
and properly dismissed the complaint for failure to state a claim on which relief
can be granted.
V
For these reasons, the judgment of the district court is affirmed.
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