Altman, Lewis v. Frank, Matthew

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 27, 2006*
Decided October 4, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-1830
LEWIS ALTMAN, JR., Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v.
No. 06 C 100
MATTHEW J. FRANK,
Defendant-Appellee. Barbara B. Crabb,
Chief Judge.
ORDER
Wisconsin inmate Lewis Altman, Jr., sued the Secretary of the Department of
Corrections under 42 U.S.C. § 1983 claiming that the Wisconsin Parole Commission
denied him due process and violated the Ex Post Facto Clause of the United States
*
The Attorney General of Wisconsin notified this court that the state was
never served with process in the district court and would not be filing a brief or
otherwise participating in this appeal. After examining the appellant’s brief and the
record, we have concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
No. 06-1830 Page 2
Constitution by deferring his parole date.1 The district court dismissed the suit for
failure to state a claim upon which relief can be granted. We affirm.
Mr. Altman began serving a 40-year sentence in 1993 after pleading guilty in
a Wisconsin court to attempted first-degree homicide and reckless endangerment.
At the time of his sentencing, a Wisconsin statute instructed that, unless there were
“overriding considerations not to do so,” the Parole Commission should parole
prisoners like Mr. Altman who completed their high school equivalency diploma
while incarcerated. Wis. Stat. § 304.06(1r) (1989-90). Effective July 1996, however,
the Wisconsin legislature repealed this law.
Mr. Altman first became eligible for parole in 2003, see Wis. Stat.
§ 304.06(1)(b) (1993-94) (precluding parole eligibility until a prisoner has served at
least 25 percent of his sentence), and was interviewed by the Parole Commission in
2005. After the interview, the Commission elected to defer his parole eligibility for
another 24 months. Mr. Altman sued under § 1983, arguing that, because he had
obtained his high school equivalency diploma while in prison, the Commission
should have followed former § 304.06(1r) and either granted him parole or
explained the “overriding considerations” for not doing so. Mr. Altman contended
that, by failing to follow the repealed statute and deferring his parole, the
Commission denied him due process and violated the Ex Post Facto Clause, U.S.
Const. art. 1, § 10, cl. 1. Because Mr. Altman requested declaratory relief for these
alleged constitutional violations rather than his immediate or speedier release from
prison, he properly brought suit under § 1983. See Wilkinson v. Dotson, 544 U.S.
74, 82 (2005).
The district court dismissed Mr. Altman’s suit under 28 U.S.C. § 1915A for
failure to state a claim upon which relief could be granted. We review § 1915A
dismissals de novo and will affirm when it appears beyond doubt that the plaintiff
cannot prove any set of facts that would entitle him to relief. Marshall v. Knight,
445 F.3d 965, 968 (7th Cir. 2006).
Mr. Altman does not have a protected liberty interest in obtaining parole
under former § 304.06(1r) even though that statute was in effect at the time of his
sentencing. Prisoners do not have a constitutional right to parole, and although
state statutes couched in mandatory language may create a protected liberty
1
In its summary disposition of this case, the district court questioned whether
Matthew Frank, the Secretary of the Department of Corrections, is the appropriate
defendant. Because the state informed us that it would not be filing a brief due to
lack of service in the district court, we do not have the benefit of the state’s position
regarding the appropriate defendant. We thus take no position on the issue.
No. 06-1830 Page 3
interest in release on parole, Greenholtz v. Inmates of the Nebraska Penal &
Correctional Complex, 442 U.S. 1, 7-8 (1979); Grennier v. Frank, 453 F.3d 442, 444
(7th Cir. 2006), federal courts must defer to the finding of the state’s highest court
in determining whether a particular state has, by statute, created a protected
liberty interest, Heidelberg v. Illinois Prisoner Review Board & Kenneth P. Dobucki,
163 F.3d 1025, 1026 (7th Cir. 1998). When the state’s highest court has not ruled
on an issue, federal courts should adhere to the decision of the state’s appellate
court unless there are “persuasive reasons” to believe the state’s highest court
would hold otherwise. Allen v. Transamerica Ins. Co., 128 F.3d 462, 466 (7th Cir.
1997). The Court of Appeals of Wisconsin has stated unequivocally that
§ 304.06(1r) did not create a liberty interest in parole for inmates who were
sentenced while the statute was still in effect but became eligible for parole only
after its repeal. State ex rel. Britt v. Gamble, 653 N.W.2d 143, 148 (Wis. Ct. App.
2002). Furthermore, the appellate court explained that even prisoners who became
eligible for parole while that statute was in effect did not have a liberty interest in
parole release because the Parole Commission “retained discretion in granting
release on parole in its subjective determination of whether there were ‘overriding
considerations’ not to grant it.” Id. at 149. We find no reason to believe the
Supreme Court of Wisconsin would disagree with the view of the appellate court,
and we thus agree with the district court that Mr. Altman has no cognizable due
process claim.
Mr. Altman’s argument that the Commission’s decision violated the Ex Post
Facto Clause fails for the same reason. In considering an ex post facto challenge,
our focus 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." Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n.3
(1995). The Commission deferred parole for Mr. Altman on the basis of his unmet
“treatment needs,” the nature of the offense for which he was incarcerated (“a
relatively unprovoked shooting”), his criminal history and status as a repeat violent
offender, and the Commission’s concern that releasing Mr. Altman on parole would
put the public at risk. These factors would have been considered under § 304.06(1r)
as “overriding considerations” that warranted denying parole even to otherwise
eligible inmates. See Gamble, 653 N.W.2d at 149. Because the Commission simply
exercised the same discretion to deny Mr. Altman parole in 2005 that it could have
exercised under § 304.06(1r), the Commission’s failure to evaluate Mr. Altman
under the old statute did not increase the penalty by which Mr. Altman’s claim was
punishable. See Morales, 514 U.S. at 508-09 (rejecting argument that any
legislative change that might conceivably affect a prisoner’s punishment violates
Ex Post Facto Clause); Grennier, 453 F.3d at 444 (explaining that states risk
violating Ex Post Facto Clause only when they change their laws “in ways that
increase the punishment for earlier crimes”). Thus, the district court also properly
concluded that the Commission did not violate the Ex Post Facto clause.
No. 06-1830 Page 4
AFFIRMED