UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick Fisher Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
4/28/06
TO: ALL RECIPIENTS OF THE CAPTIONED ORDER AND JUDGMENT
RE: 95-3229 Martin v. Lowe
May 29, 1996 by The Honorable James K. Logan
Please be advised of the following correction to the captioned decision:
The citation to Jefferson v. Hart, No. 95-3025, on page three of the order and
judgment contains an incorrect date. The correct date is May 29, 1996.
Please make the appropriate correction to your copy.
Very truly yours,
Patrick Fisher, Clerk
Beth Morris
Deputy Clerk
UNITED STATES COURT OF APPEALS
Filed 5/29/96
TENTH CIRCUIT
VANCE C. MARTIN, )
)
Petitioner-Appellant, )
)
v. ) No. 95-3229
) (D.C. No. 92-CV-3341)
COMMANDANT, COL. GREGORY A. ) (D. Kansas)
LOWE, )
)
Respondent-Appellee. )
ORDER AND JUDGMENT*
Before ANDERSON, BARRETT and LOGAN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
submitted without oral argument. We grant the right to appeal in forma pauperis because
on its face the complaint raises a colorable claim of a constitutional violation.
Petitioner Vance C. Martin, a prisoner in the United States Disciplinary Barracks
in Fort Leavenworth, Kansas, appeals from the denial of his federal habeas corpus
petition. He asserts that application of an amendment to Department of Defense Direc-
tives governing parole and clemency procedures which is more restrictive than that in
place when he was convicted and sentenced violates the Ex Post Facto Clause of the
Constitution. As a result of the amendment, instead of receiving annual clemency and
parole consideration beginning in 1989, petitioner was not considered until 1992.
The district court found that modification of the directive indeed “violated ex post
facto principles by retroactively increasing the length of time to be served before a
military inmate could be considered for parole.” I R. doc. 21 at 2. The district court
reasoned, however, that because petitioner has received annual clemency and parole
hearings since December 1993 (in which clemency and parole were denied), he has
received all the relief to which he is entitled. Cf. Devine v. New Mexico Dep’t of
Corrections, 866 F.2d 339, 347 (10th Cir. 1989) (when inmate’s punishment was
retroactively enhanced by modified parole statute he must be provided a parole hearing
before the time period provided for by the prior statute expires; if not he must be re-
leased).
2
We have reviewed petitioner’s brief and the record and are satisfied that the
district court accurately summarized the facts and correctly applied the law. A habeas
corpus petitioner who has been deprived of timely parole and clemency consideration is
entitled to a prompt hearing, not release. See, e.g., Jones v. Bureau of Prisons, 903 F.2d
1178, 1181 (8th Cir. 1990); cf. McNeal v. United States, 553 F.2d 66, 68 (10th Cir. 1977)
(delay in providing parole revocation hearing not per se violation of due process requiring
that inmate be released). This appeal is controlled by Jefferson v. Hart, entered this day.
See Jefferson v. Hart, No. 95-3025 (10th Cir. May 24, 1996).
AFFIRMED.
The mandate shall issue forthwith.
Entered for the Court
James K. Logan
Circuit Judge
3