Calhoun v. Kupec

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BARRY CALHOUN,
Plaintiff-Appellant,
v.
ROBERT KUPEC, Warden, Eastern
No. 00-6293
Correctional Institution; ATTORNEY
GENERAL FOR THE STATE OF
MARYLAND,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-00-248-AW)
Submitted: June 6, 2000
Decided: June 19, 2000
Before LUTTIG, WILLIAMS, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Barry Calhoun, Appellant Pro Se.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Barry Calhoun filed a 28 U.S.C.A. § 2254 (West 1994 & Supp.
2000) petition, construed by the district court as a 28 U.S.C. § 2241(1994) petition, challenging the Maryland Parole Commission's (the
Commission) decision to deny him parole and its refusal to schedule
him a parole rehearing. Calhoun alleges that the Commission's deci-
sions were based upon Governor Glendening's 1995 pronouncement
that he would only approve the Commission's recommendation of
parole for inmates sentenced to life imprisonment in very limited cir-
cumstances. We find no error in the district court's dismissal of Cal-
houn's petition.
First, Calhoun alleged that the Commission breached his plea
agreement when it declined to set a rehearing date after his initial eli-
gibility denial. There is no constitutional right to have a parole rehear-
ing scheduled. See Paoli v. Lally, 812 F.2d 1489, 1493-94 (4th Cir.
1987). In Paoli, this Court held that Maryland prisoners do not have
a liberty interest in the holding and scheduling of rehearings because
that decision is left to the discretion of the Commission. See id. The
Maryland Code does not address the issue, and the regulations leave
decisions regarding parole rehearings to the discretion of the Com-
mission. See Md. Regs. Code tit. 12, § 08.01.23(B) (2000). Calhoun's
claims based upon denial of a rehearing date are thus without merit.
Calhoun claims that the Commission violated his plea agreement
by failing to schedule a parole rehearing. By Calhoun's account, the
plea agreement only provided that he had the possibility of receiving
parole after he served eleven-and-a-half years of his sentence. Cal-
houn received an initial parole eligibility hearing; therefore, he did
have the possibility of receiving parole. The denial of parole did not
violate the plea agreement.
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Finally, to the extent that Calhoun argues that the Commission's
denial, based upon the Governor's policy, is an ex post facto viola-
tion, his claim is without merit. The Ex Post Facto Clause prohibits
retroactive legislative changes that alter the definition of criminal
conduct or increase the penalty by which a crime is punishable. See
California v. Morales, 514 U.S. 499, 504 (1995). The Clause applies
only to legislative action and, in certain circumstances, actions of
administrative agencies. See United States v. Ellen, 961 F.2d 462, 465
(4th Cir. 1992); Prater v. United States Parole Comm'n, 802 F.2d
948, 951 (7th Cir. 1986) (en banc). Because Calhoun is essentially
challenging an executive exercise of discretion rather than an action
by the Maryland General Assembly or an administrative agency to
which the General Assembly has delegated authority, this claim fails.
In addition, Calhoun did not allege in his petition that the Commis-
sion did not apply the statutory factors applicable to Commission
decisions. See Md. Regs. Code tit. 12 § 08.01.18 (2000) (citing fac-
tors). The Commission also exercised its discretion, and, therefore, its
decision did not result in an ex post facto violation.
Finding no merit in Calhoun's claims, we deny a certificate of
appealability and dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
DISMISSED
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