Plyler v. Moore

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HARRY ALLEN PLYLER, et al.,
Petitioners-Appellees,
v.
No. 96-7689
MICHAEL W. MOORE, Director, South
Carolina Department of Corrections,
Respondent-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
C. Weston Houck, Chief District Judge.
(CA-94-190-2BD)
Argued: January 27, 1997
Decided: October 16, 1997
Before RUSSELL and WILKINS, Circuit Judges, and
OSTEEN, United States District Judge for the
Middle District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Russell and Judge Osteen joined.
_________________________________________________________________
COUNSEL
ARGUED: Kenneth Paul Woodington, Senior Assistant Attorney
General, Columbia, South Carolina, for Appellant. W. Gaston Fairey,
FAIREY, PARISE & MILLS, P.A., Columbia, South Carolina, for
Appellees. ON BRIEF: Charles Molony Condon, Attorney General,
Treva Ashworth, Deputy Attorney General, Columbia, South Caro-
lina; Larry C. Batson, General Counsel, SOUTH CAROLINA
DEPARTMENT OF CORRECTIONS, Columbia, South Carolina, for
Appellant. Rochelle Romosca McKim, FAIREY, PARISE & MILLS,
P.A., Columbia, South Carolina; Elizabeth Alexander, National
Prison Project, AMERICAN CIVIL LIBERTIES UNION, Washing-
ton, D.C.; Stephen B. Bright, SOUTHERN CENTER FOR HUMAN
RIGHTS, Atlanta, Georgia, for Appellees.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
In 1981, the General Assembly of South Carolina provided for a
supervised furlough program for prisoners; however, inmates who
had committed specified crimes were excluded from participation in
the program. See S.C. Code Ann. § 24-13-710 (Law. Co-op. Supp.
1981).1 Two years later, the General Assembly enacted a statute pro-
viding for the mandatory release on supervised furlough of all prison
inmates serving sentences of less than life imprisonment six months
prior to the expiration of their sentences. See S.C. Code Ann. § 24-13-
720 (Law. Co-op. 1989). Although this latter provision referenced
§ 24-13-710, it did not address specifically whether inmates excluded
from participation in the supervised furlough program of § 24-13-710
were also excluded from participation in the mandatory furlough pro-
gram of § 24-13-720. In 1993, the General Assembly amended § 24-
13-720 to incorporate the eligibility criteria contained in § 24-13-710
and to make the program permissive rather than mandatory. See S.C.
Code Ann. § 24-13-720 (Law. Co-op. Supp. 1993).
Considering the relationship between the two statutes, the Supreme
Court of South Carolina held that the exclusions contained in § 24-13-
_________________________________________________________________
1 The furlough program was amended in 1983 to impose additional
restrictions on eligibility for participation. See S.C. Code Ann. § 24-13-
710 (Law. Co-op. Supp. 1983). Additionally, subsequent amendments
have occurred that are not material to this litigation. For ease of refer-
ence, we refer to § 24-13-710 as it existed in 1983. See id.
2
710 did not apply to inmates entitled to mandatory release on fur-
lough under § 24-13-720 as that statute was originally enacted. See
Plyler v. Evatt, 438 S.E.2d 244, 246 (S.C. 1993) (holding "that the
two statutes refer to two different classes of inmates and that the con-
ditions for participation created by [§ 24-13-710] are not implied in
[§ 24-13-720]"). The court reasoned that the amendment of § 24-13-
720 was not a clarification of the law, but rather constituted a substan-
tive change. See id. The court also concluded in a footnote that appli-
cation of the amended version of the statute to inmates who were not
within six months of the expiration of their sentences at the time of
the 1993 amendment did not offend ex post facto principles. See id.
at 245 n.1.
This action subsequently was filed in federal district court by mem-
bers of the plaintiff class of inmates involved in the state litigation,
claiming that application of the 1993 version of§ 24-13-720 to pris-
oners serving sentences of less than life imprisonment for crimes
committed between the 1983 enactment of § 24-13-720 and its
amendment in 1993 violated the Ex Post Facto Clause of the United
States Constitution.2 See U.S. Const. art. I, § 10, cl. 1. The district
court agreed and accordingly enjoined application of the amended
statute to the Inmates. The State3 now appeals that decision, asserting
two alternative arguments. First, the State contends that because this
litigation essentially amounts to an appeal of the ex post facto ruling
of the Supreme Court of South Carolina in Plyler , we lack subject-
matter jurisdiction under the Rooker-Feldman doctrine. Second, the
State maintains that application of the amended version of § 24-13-
720 to the Inmates does not violate the Ex Post Facto Clause because
the furlough program in question is not a part of the Inmates' sen-
tences. For the reasons that follow, we affirm.
_________________________________________________________________
2 We refer to such prisoners collectively as "the Inmates."
3 This action originally named Parker Evatt, former Commissioner of
the South Carolina Department of Corrections. Evatt subsequently was
succeeded by Michael W. Moore as Director of the South Carolina
Department of Corrections. For ease of reference, we refer to Moore as
"the State" throughout this opinion.
3
I.
The "supervised furlough program" allows "carefully screened and
selected inmates who have served the mandatory minimum sentence
as required by law ... to be released on furlough" subject to "policies,
procedures, guidelines, and cooperative agreement[s]" developed by
the Department of Corrections and the Parole and Community Cor-
rections Board. S.C. Code Ann. § 24-13-710 (Law. Co-op. Supp.
1983). The General Assembly later enacted the provision at issue in
this case, which provided:
Unless sentenced to life i[m]prisonment, an inmate under
the jurisdiction or control of the Department of Corrections
shall, within six months of the expiration of his sentence, be
placed with the program provided for in § 24-13-710 and
shall be subject to every rule, regulation, and condition of
such program. No inmate otherwise eligible under the provi-
sions of this section for placement with the program under
§ 24-13-710 may be so placed unless he has maintained a
clear disciplinary record for at least six months prior to eli-
gibility for placement with such program.
S.C. Code Ann. § 24-13-720 (Law. Co-op. 1989). While § 24-13-710
excludes any inmate who is incarcerated for certain crimes or who has
"been committed to the State Department of Corrections with a total
sentence of five years or less as the first or second adult commitment
for a criminal offense for which the inmate received a sentence of one
year or more," S.C. Code Ann. § 24-13-710, these limitations were
not expressly incorporated in § 24-13-720.
Although the program is termed a "furlough," inmates released
under it agree to conditions identical in all material respects to the
conditions imposed on parolees concerning, inter alia, residence,
employment, use of illegal drugs, and possession of weapons. Inmates
who violate these conditions are subject to revocation proceedings
before the Department of Probation, Parole, and Pardon Services.
Moreover, inmates who participate in the furlough program report to,
and are supervised by, state parole officers.4
_________________________________________________________________
4 Indeed, during oral argument the State repeatedly asserted that the
supervised furlough program is indistinguishable from parole.
4
In 1993, the General Assembly significantly amended§ 24-13-720.
The amended statute provides:
Unless sentenced to life imprisonment, an inmate under
the jurisdiction or control of the Department of Corrections
who has not been convicted of a violent crime ... may, within
six months of the expiration of his sentence, be placed with
the program provided for in Section 24-13-710 and is sub-
ject to every rule, regulation, and condition of the program.
No inmate otherwise eligible under the provisions of this
section for placement with the program may be so placed
unless he has qualified under the selection criteria and pro-
cess authorized by the provisions of Section 24-13-710. He
must also have maintained a clear disciplinary record for at
least six months prior to eligibility for placement with the
program.
S.C. Code Ann. § 24-13-720 (Law. Co-op. Supp. 1993) (emphasis
added).5 Later that year, the Supreme Court of South Carolina issued
a decision regarding the scope of § 24-13-720 as it existed prior to the
1993 amendment, holding that the conditions for participation in the
furlough program under § 24-13-710 did not apply to inmates entitled
to mandatory release on furlough pursuant to § 24-13-720. See Plyler
v. Evatt, 438 S.E.2d 244, 246 (S.C. 1993). In other words, the court
ruled that all inmates serving sentences of less than life imprisonment,
including those unable to satisfy the eligibility criteria for the super-
vised furlough program of § 24-13-710, were entitled to participate in
the mandatory furlough program of § 24-13-720. The court also stated
in a footnote that application of the amended version of § 24-13-720
to any inmate who was not within six months of the expiration of his
sentence when the 1993 amendment became effective would not vio-
late ex post facto principles. See id. at 245 n.1.
The Inmates subsequently filed this action in federal district court,
seeking declaratory and injunctive relief on the basis that application
of § 24-13-720 as amended in 1993 to prisoners serving sentences of
_________________________________________________________________
5 The statute was again amended, in a manner not material to this litiga-
tion, in 1995. See S.C. Code Ann. § 24-13-720 (Law. Co-op. Supp.
1996).
5
less than life imprisonment for crimes committed between the enact-
ment of § 24-13-720 in 1983 and its amendment in 1993 would vio-
late the Ex Post Facto Clause of the United States Constitution. The
district court concluded that application of the amended version of
§ 24-13-720 to such prisoners would retroactively increase punish-
ment for their crimes and therefore was ex post facto. See generally
Collins v. Youngblood, 497 U.S. 37, 42 (1990) (explaining that a law
is ex post facto if, inter alia, it increases the punishment for a crime
previously committed). Accordingly, the court ordered injunctive
relief in favor of the Inmates. Upon a motion by the State, however,
the district court stayed its order pending appeal to this court.
II.
The State first argues that we lack subject-matter jurisdiction to
consider the Inmates' ex post facto claim because a ruling in favor of
the Inmates would nullify the contrary judgment of the Supreme
Court of South Carolina in Plyler, thereby violating the Rooker-
Feldman doctrine. See District of Columbia Ct. App. v. Feldman, 460
U.S. 462, 482-86 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
415-16 (1923).6 Under the Rooker-Feldman doctrine, lower federal
courts generally do not have jurisdiction to review state-court deci-
sions; rather, jurisdiction to review such decisions lies exclusively
with superior state courts and, ultimately, the United States Supreme
Court. See Leonard v. Suthard, 927 F.2d 168, 169-70 (4th Cir. 1991);
see also Young v. Murphy, 90 F.3d 1225, 1230 (7th Cir. 1996). The
Rooker-Feldman doctrine bars consideration not only of issues actu-
ally presented to and decided by a state court, but also of constitu-
tional claims that are "inextricably intertwined with" questions ruled
upon by a state court, as when success on the federal claim depends
upon a determination "that the state court wrongly decided the issues
before it." Charchenko v. City of Stillwater , 47 F.3d 981, 983 (8th Cir.
1995); see Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25 (1987) (Mar-
shall, J., concurring in the judgment) ("Where federal relief can only
be predicated upon a conviction that the state court was wrong, it is
_________________________________________________________________
6 The State did not raise this argument before the district court. How-
ever, questions concerning subject-matter jurisdiction may be raised at
any time by either party or sua sponte by this court. See North Carolina
v. Ivory, 906 F.2d 999, 1000 n.1 (4th Cir. 1990).
6
difficult to conceive the federal proceeding as, in substance, anything
other than a prohibited appeal of the state-court judgment."). How-
ever, the Rooker-Feldman doctrine does not bar review of a ruling of
a state court in habeas corpus proceedings. See Jordahl v. Democratic
Party, No. 96-2402, 1997 WL 418450, at *6 (4th Cir. July 28, 1997);
Ritter v. Ross, 992 F.2d 750, 753 (7th Cir. 1993).
Here, the State contends that the Inmates effectively are seeking
review of the decision of the South Carolina Supreme Court that
"[t]here is no ex post facto violation in applying [§ 24-13-720 as
amended in 1993] to individuals who committed offenses before its
effective date." Plyler, 438 S.E.2d at 245 n.1 (emphasis omitted).7 In
response, the Inmates argue that the Supreme Court of South Carolina
did not actually decide the ex post facto question because the issue
was not directly before the court. Alternatively, the Inmates maintain
that this litigation sounds in habeas corpus and that we therefore do
not lack subject-matter jurisdiction to consider the merits of their
claim.
In order to determine whether the Supreme Court of South Carolina
decided the ex post facto issue in Plyler, review of the proceedings
in state court is necessary. As the Inmates correctly point out, the pri-
mary issue before the court in Plyler concerned the proper construc-
tion of § 24-13-720 as it existed prior to the 1993 amendment. Before
rendering a decision, however, the court requested supplemental
briefing on the question of whether the 1993 amendment to § 24-13-
720 rendered the litigation moot. In responding to that question, the
State argued in part that "application of the amended version [of § 24-
_________________________________________________________________
7 We note that the Supreme Court of South Carolina did not specify
whether its decision rested on an interpretation of the state or federal Ex
Post Facto Clause. See U.S. Const. art. I,§ 10, cl. 1; S.C. Const. art. I,
§ 4. Resolution of this question is immaterial to the outcome of this liti-
gation, however. To the extent the Supreme Court of South Carolina
relied on the South Carolina Constitution, the Rooker-Feldman doctrine
is not implicated and subject-matter jurisdiction is present because this
litigation presents a different question. To the extent the decision in
Plyler involved application of the United States Constitution, subject-
matter jurisdiction exists notwithstanding the Rooker-Feldman doctrine
because, as discussed below, this action sounds in habeas corpus.
7
13-720] to all inmates would not violate the prohibition against ex
post facto laws." Supplemental Brief of Appellants at 10, Plyler v.
Evatt, 438 S.E.2d 244 (S.C. 1993) (No. 23928) (emphasis omitted).
In reply, the Inmates argued that application to them of § 24-13-720
as amended would violate the Ex Post Facto Clause. In its original
opinion, the Supreme Court of South Carolina declined to decide
whether application to the Inmates of § 24-13-720 as amended in
1993 would be constitutional. See Plyler v. Evatt, No. 23928, slip op.
at 3 n.2 (S.C. Aug. 26, 1993). The State subsequently petitioned for
rehearing, asserting that it interpreted the ruling of the court to apply
only to those prisoners then entitled to mandatory release on furlough.
As to all other inmates, including those serving sentences of less than
life imprisonment for crimes committed between 1983 and 1993, the
State informed the court that it intended to apply the amended version
of § 24-13-720. The State also advised the court that counsel for the
Inmates had indicated an intention to file an action challenging the
State's proposed application of amended § 24-13-720 as violative of
the Ex Post Facto Clause of the United States Constitution. Accord-
ingly, the State requested a decision on the question of whether appli-
cation of the amended version of § 24-13-720 to inmates serving
sentences of less than life imprisonment for crimes committed
between 1983 and 1993 would pass constitutional muster. The
Supreme Court of South Carolina granted the petition for rehearing,
withdrew its original opinion, and substituted a new opinion deciding
the ex post facto issue in a footnote.8 See Plyler, 438 S.E.2d at 245
n.1. Thus, it is clear that the question raised by the Inmates in this fed-
eral litigation--whether application of the amended version of § 24-
13-720 to individuals sentenced to less than life imprisonment for
crimes committed between 1983 and 1993 violates the Ex Post Facto
Clause--was litigated before, and decided by, the Supreme Court of
South Carolina.
_________________________________________________________________
8 In light of this sequence of events, we are at a loss to explain the
repeated assertions by counsel for the State that the Inmates initially
raised the ex post facto issue and urged the Supreme Court of South Car-
olina to decide it. Counsel's statements are particularly baffling in view
of the fact that he was an attorney of record in the proceedings before the
state court. Of course, it is immaterial to our determination of the juris-
dictional question which party prompted the Supreme Court of South
Carolina to consider whether application to the Inmates of the amended
version of § 24-13-720 violates the Ex Post Facto Clause.
8
Having determined that the issue of whether application to the
Inmates of the 1993 amendment to § 24-13-720 violates the Ex Post
Facto Clause was actually decided, it is self-evident that the present
litigation essentially amounts to nothing more than an attempt to seek
review of that decision by a lower federal court. The ruling sought by
the Inmates--that application to them of the 1993 amendment to
§ 24-13-720 violates the Ex Post Facto Clause--would nullify the
contrary holding of the Supreme Court of South Carolina in Plyler to
the extent that holding relied on an interpretation of the United States
Constitution. Accordingly, the Rooker-Feldman doctrine bars subject-
matter jurisdiction unless this action is one for habeas corpus relief.
The Inmates maintain that their request for relief sounds in habeas
corpus and that as such it has been exempted by Congress from the
ambit of the Rooker-Feldman doctrine. See Jordahl, 1997 WL
418450, at *6. It is well settled that challenges to the fact or length
of confinement are properly considered in the context of habeas cor-
pus. See Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (holding
that a challenge to the length of "actual confinement in prison" must
be brought as a habeas corpus action). In Preiser, state prisoners
brought actions pursuant to 42 U.S.C.A. § 1983 (West 1994) seeking
the restoration of "good time" credits that, if awarded, would have
entitled the prisoners to immediate release on parole. See Preiser, 411
U.S. at 477 (describing the program pursuant to which the credits had
been awarded). The Court concluded that such an action was one
challenging the legality of physical confinement and thus that the only
proper avenue for relief was a petition for a writ of habeas corpus. See
id. at 487 (concluding that the relief sought by the prisoners "fell
squarely within [the] traditional scope of habeas corpus"). Here, the
Inmates seek to be released from confinement into a program that is
virtually indistinguishable from parole. Thus, although the Inmates do
not challenge the validity of their convictions and sentences, but
rather assert an entitlement to serve the last six months of their sen-
tences on supervised furlough pursuant to § 24-13-720, the action is
properly considered in habeas corpus. See id. at 487-88; Graham v.
Broglin, 922 F.3d 379, 381 (7th Cir. 1991) (holding that claims seek-
ing "a quantum change in the level of custody" including "freedom
subject to the limited reporting and financial constraints of bond or
parole or probation" are properly considered in habeas corpus). See
generally Lynce v. Mathis, 117 S. Ct. 891, 893 & n.4 (1997) (noting
9
that prisoner contesting the revocation of credits, the award of which
entitled the prisoner to release under conditions similar to parole,
brought the action as a petition for a writ of habeas corpus and dis-
cussing the exhaustion of state remedies). Since the Rooker-Feldman
doctrine does not divest us of subject-matter jurisdiction, we must
consider the merits of the Inmates' ex post facto challenge to the
application of the 1993 amendment to § 24-13-720.
III.
The constitutional provision on which the Inmates rely forbids the
States from enacting "any ... ex post facto Law." U.S. Const. art. I,
§ 10, cl. 1. Generally speaking, the Ex Post Facto Clause prohibits,
inter alia, the enactment of "any law `which imposes a punishment
for an act which was not punishable at the time it was committed; or
imposes additional punishment to that then prescribed.'" Weaver v.
Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71
U.S. (4 Wall.) 277, 325-26 (1867)). In so doing, it seeks to ensure that
individuals receive fair warning of the law and to guard against "arbi-
trary and potentially vindictive legislation." Id. at 28-29.
A law violates the Ex Post Facto Clause when it is retrospective--
i.e., when it applies to events predating its enactment--and it disad-
vantages those to whom it applies. See Lynce v. Mathis, 117 S. Ct.
891, 896 (1997). The latter condition is satisfied by any provision
"which punishes as a crime an act previously committed, which was
innocent when done; which makes more burdensome the punishment
for a crime, after its commission[;] or which deprives one charged
with crime of any defense available according to law at the time when
the act was committed." Beazell v. Ohio, 269 U.S. 167, 169 (1925).
Here, the Inmates maintain that application to them of § 24-13-720 as
amended in 1993 would increase the punishment for a crime after its
commission by depriving them of a six-month reduction in the sen-
tenced period of incarceration to which they were entitled under the
1983 version of the law. See id. The district court accepted this argu-
ment. Whether the 1993 amendment to § 24-13-720 is ex post facto
as applied to the Inmates is a question of law that we review de novo.
See United States v. Presley, 52 F.3d 64, 67 (4th Cir. 1995).
We begin by noting that there is no question presented regarding
the first prong of the ex post facto analysis, i.e., whether the 1993
10
amendment to § 24-13-720 is retrospective as applied to the Inmates.
In Plyler, the Supreme Court of South Carolina plainly held that § 24-
13-720 as originally enacted entitled all inmates serving sentences of
less than life imprisonment to mandatory release on furlough six
months prior to the expiration of their sentences. See Plyler, 438
S.E.2d at 246. In reaching this conclusion, the court rejected the
State's argument that the 1993 amendment merely clarified the law
to make plain that only those inmates who satisfied the criteria of
§ 24-13-710 were eligible for release on furlough pursuant to § 24-13-
720. See id. Instead, the court determined, the 1993 amendment con-
stituted a substantive change in the law. See id. Even if we were to
conclude that this holding is incorrect, we are bound by it as a final
determination of state law by the highest court of the state. See Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that "it is not the
province of a federal habeas court to reexamine state-court determina-
tions on state-law questions"). Thus, there can be no dispute that
application to the Inmates of the 1993 amendment is retrospective.
We now turn to the second prong of the ex post facto analysis:
Whether application of the amended version of § 24-13-720 to prison-
ers serving sentences of less than life imprisonment for crimes com-
mitted between the enactment of § 24-13-720 in 1983 and its
amendment in 1993 would amount to an increase in punishment for
crimes previously committed. The State maintains that § 24-13-720 is
a furlough program designed to alleviate prison overcrowding and
that as such it is not a part of the Inmates' sentences. Therefore, the
State claims that the alteration of the program cannot be considered
an unconstitutional increase in punishment.
The Supreme Court has recently and emphatically rejected pre-
cisely this argument as irrelevant to an ex post facto inquiry. See
Lynce, 117 S. Ct. at 896-98. In Lynce, Florida argued that the revoca-
tion of early release credits provided pursuant to a program estab-
lished by the state legislature did not implicate the Ex Post Facto
Clause because the program had been created solely for the purpose
of alleviating prison overcrowding. The Court rejected this argument,
explaining that the purpose of the state legislature was not dispositive
of whether the provision violated the Ex Post Facto Clause. See id.Rather, the pertinent issue before the Court was"whether the cancel-
11
lation of 1,860 days of accumulated provisional credits had the effect
of lengthening petitioner's period of incarceration." Id. at 896.
Similarly, here, the determination of whether application to the
Inmates of the 1993 amendment to § 24-13-720 is ex post facto does
not depend on whether the provision is "`in some technical sense part
of the sentence.'" Id. at 898 (quoting Weaver, 450 U.S. at 32). Rather,
the question is whether application to the Inmates of § 24-13-720 as
amended in 1993 will extend the period of their incarceration. See id.
at 896; Weaver, 450 U.S. at 33. And, in Lynce the Court expressly
held that "retroactive alteration of parole or early release provisions,
like the retroactive application of provisions that govern initial sen-
tencing, implicates the Ex Post Facto Clause because such credits are
`one determinant of petitioner's prison term ... and ... [the petitioner's]
effective sentence is altered once this determinant is changed.'"
Lynce, 117 S. Ct. at 898 (emphasis omitted) (alterations in original)
(quoting Weaver, 450 U.S. at 32).
The application to the Inmates of the 1993 amendment to § 24-13-
720 unquestionably has the effect of increasing the length of their
incarceration. Pursuant to the 1983 version of the statute as inter-
preted by the Supreme Court of South Carolina, the Inmates would
be entitled to release from incarceration on furlough six months prior
to the expiration of their sentences, assuming the other criteria of the
provision are satisfied. Under the statute as amended in 1993, how-
ever, prisoners who could not satisfy the additional requirements of
§ 24-13-710 would not be eligible to participate in the program and
would be required to serve the final six months of their sentences in
prison. As discussed above, the program established by § 24-13-720
is indistinguishable from parole. Thus, for all practical purposes the
application to the Inmates of the 1993 amendment to§ 24-13-720
deprives them of mandatory parole. As desirable as such a result may
be--particularly in view of the violent nature of the crimes for which
some of these individuals are incarcerated--such a retroactive change
in the law is violative of the Ex Post Facto Clause. See Lynce, 117
S. Ct. at 898; Weaver, 450 U.S. at 33-36; Warden, Lewisburg Peni-
tentiary v. Marrero, 417 U.S. 653, 663 (1974) (noting that "a repealer
of parole eligibility previously available to imprisoned offenders
would clearly present [a] serious [ex post facto] question"); Jones v.
Murray, 962 F.2d 302, 310 (4th Cir. 1992) (holding that a Virginia
12
statute delaying mandatory release on parole for inmates who refuse
to provide a blood sample for DNA testing violates the Ex Post Facto
Clause); Fender v. Thompson, 883 F.2d 303, 305-07 (4th Cir. 1989)
(declaring a statute that retrospectively eliminated parole eligibility
for persons sentenced to life imprisonment who escaped from custody
unconstitutional as ex post facto and collecting cases holding that
changes in parole eligibility that are both retroactive and unfavorable
are violative of the Ex Post Facto Clause). Therefore, we are left with
no choice but to affirm the decision of the district court.9
IV.
In summary, in 1983 the General Assembly of South Carolina
passed a statute that reduced by six months the incarcerative sentence
of all inmates serving sentences of less than life imprisonment,
including those who had committed violent crimes. It is not for a
court to question the wisdom of such a law, for clearly it was within
the power of the state legislature to enact. Ten years later, the General
Assembly elected to amend that law and to limit the class of inmates
who would be entitled to the six-month reduction. We hold that
Supreme Court and circuit precedent obligates us to declare the retro-
active application of the 1993 amendment to § 24-13-720 to prisoners
serving sentences of less than life imprisonment for crimes committed
_________________________________________________________________
9 The State has not argued that the Inmates' ex post facto claim is
barred by the new rule doctrine of Teague v. Lane, 489 U.S. 288 (1989),
thereby waiving this issue. See Collins v. Youngblood, 497 U.S. 37, 40-
41 (1990). In any event, it appears that Teague has no application here
because the Inmates do not challenge the validity of their convictions or
sentences. See O'Dell v. Netherland, 117 S. Ct. 1969, 1973 (1997)
(explaining that the Teague doctrine applies when a state prisoner seeks
to overturn his conviction or sentence on federal collateral review);
Helton v. Fauver, 930 F.2d 1040, 1047 n.11 (3d Cir. 1991) (concluding
that a habeas corpus action challenging as violative of the Ex Post Facto
Clause a state court interpretation of a statute setting forth the circum-
stances under which a juvenile could be tried as an adult "does not impli-
cate the policy favoring the finality of judgments that was at issue in
Teague"); cf. Lynce, 117 S. Ct. at 895-98 (granting habeas relief on claim
that revocation of credits, the award of which entitled the petitioner to
release under conditions similar to parole, violated the Ex Post Facto
Clause without addressing Teague).
13
between the enactment of § 24-13-720 in 1983 and its amendment in
1993 unconstitutional as violative of the Ex Post Facto Clause of the
United States Constitution. We also hold that under Preiser, an action
asserting entitlement to release from physical confinement properly is
considered in habeas corpus. We therefore conclude that although in
substance this litigation seeks to overturn a decision of the Supreme
Court of South Carolina, the Rooker-Feldman doctrine does not oper-
ate to deprive us of subject-matter jurisdiction. Accordingly, we affirm.10
AFFIRMED
_________________________________________________________________
10 We express no opinion concerning whether the State appropriately
may seek reconsideration of the determination of the Supreme Court of
South Carolina that the 1993 amendment to § 24-13-720 constituted a
substantive change in the law rather than a clarification. See Plyler, 438
S.E.2d at 246. Our review of Plyler, however, indicates that the decision
of the state court in this regard may have been influenced by its conclu-
sion that application to the Inmates of the 1993 amendment posed no ex
post facto problem because the supervised furlough program was not a
part of the Inmates' sentences. See id. at 245 n.1. In view of the recent
decision of the Supreme Court in Lynce, this reasoning clearly is no lon-
ger tenable. Inasmuch as Lynce undermines--indeed, as explained in the
body of this opinion, compels rejection of--the decision of the Supreme
Court of South Carolina regarding the ex post facto issue, the conclusion
of that court with respect to whether the 1993 amendment to § 24-13-720
was a clarification or a substantive change may also be open to question.
This is particularly true in light of the fact that§ 24-13-720 was amended
during the pendency of litigation concerning the proper interpretation of
the provision, supporting the view that the changes effected by the
amendment were clarifying rather than substantive. See 1A Norman J.
Singer, Statutes & Statutory Construction§ 22.31 (5th ed. 1991)
(explaining that the existence of a controversy regarding the proper inter-
pretation of a statute prior to its amendment rebuts the presumption that
an amendment is substantive in nature).
14