NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 17, 2008*
Decided July 22, 2008
Before
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐3453
BILLIE R. ADAMS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:06‐cv‐1499‐SEB‐JMS
CHRISTOPHER E. MELOY,
Defendant‐Appellee. Sarah Evans Barker,
Judge.
O R D E R
Billie R. Adams is an Indiana prisoner who has been serving a life sentence since
1972 for first‐degree murder of a police officer. He filed a complaint against the Chairman of
the Indiana Parole Board, currently Christopher Meloy, pursuant to 42 U.S.C. § 1983,
challenging his denial of parole. The district court granted the defendant’s motion to
dismiss the complaint for failure to state a claim. We affirm.
*
After examining the briefs and the record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2).
No. 07‐3453 Page 2
According to Adams’s complaint, he filed five clemency petitions before 1992, all of
which were denied. That year marked the completion of the first 20 years of his sentence,
and Adams then became eligible for parole and had annual parole hearings from 1992 to
1996. In 1996 Indiana changed its policy on the frequency of parole hearings, and since then
Adams has appeared before the board once every five years, or in 2001 and 2006.
Adams’s complaint charged that parole board members violated his right to due
process when they arbitrarily denied him parole. According to Adams, the board ignored
evidence of his good behavior and educational achievement, as well as his suffering from
post‐traumatic stress disorder (PTSD), and instead focused their attention on other,
unproved offenses from his past and even false information. He asserts that the board’s
denial of parole “based on the nature and circumstances of” his offense, killing a police
officer, demonstrates the members’ bias against him. Next, Adams argued that his rights
under the equal protection clause were violated because the parole board granted the parole
applications of similarly situated offenders but arbitrarily denied his applications. Adams
also alleged that the change in Indiana’s parole eligibility procedures violated the ex post
facto clause of the Constitution because he now has to wait longer in prison before being
considered for parole. Adams sought only injunctive relief in the form of a new parole
hearing and an order that he be resentenced under the new parole policy.
The district court granted Meloy’s motion to dismiss for failure to state a claim. The
court concluded that even if Adams had a right to judicial review of the parole board’s
actions, any such review would not be more demanding than an “exceptionally arbitrary”
standard and that the actions of the parole board would easily satisfy that standard. The
court observed that the parole board considered Adams’s application for parole in
accordance with the governing statute, issued written decisions explaining its reasoning,
and had discretion to make such determinations under Indiana law. Furthermore, the
district court concluded that Adams had not stated a claim under the equal protection
clause because he is not a member of a protected class, nor could he be considered a “class
of one.” Finally, the district court determined that there was no violation of the ex post
facto clause because the change in parole policy had not altered statutory parole eligibility
standards. Moreover, the district court concluded, when Adams was sentenced in 1972
Indiana did not provide any parole eligibility for people serving life sentences.
On appeal Adams repeats the three primary arguments stated in his complaint. We
review the district court’s ruling on the motion to dismiss de novo. Dawson v. Newman, 419
F.3d 656, 660 (7th Cir. 2005). First, Adams contends that he stated a claim under the due
process clause when he asserted that the parole board abused its discretion and denied him
fair treatment at his parole hearings. Adams complains that the parole board questioned
him about offenses of which he has never been convicted. Adams also charges that the
No. 07‐3453 Page 3
board ignored information about his PTSD or used it against him. He accuses the parole
board of “faking” the deliberative process and of fulfilling a promise it made to his victim’s
family never to let him out on parole. And Adams believes that the parole board is biased
against him because his offense involved killing a police officer.
Meloy responds that “the federal due process clause does not apply to parole release
decisions in Indiana because there is no right to parole release,” and he cites in support
Huggins v. Isenbarger, 798 F.2d 203, 205 (7th Cir. 1986), and Averhart v. Tutsie, 618 F.2d 479,
482 (7th Cir. 1980). While it is certainly true that an Indiana inmate serving a sentence is not
entitled to an early release, see Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006) (analyzing
Wisconsin parole release system, which is substantially the same as Indiana’s system), such
an inmate “should not be denied parole for false, insufficient, or capricious reasons,” which
is essentially what Adams alleges happened to him, see Christopher v. U.S. Bd. of Parole, 589
F.2d 924, 928 n.8 (7th Cir. 1978). Nevertheless, we are convinced that Adams has pleaded
himself out of court with respect to this claim. Adams’s complaint gives many examples of
what he claims are instances of bias and false information by the parole board members, yet
none of his examples comes close to substantiating his allegations. For instance, in making
its parole determinations, the parole board is entitled to rely on evidence of other crimes
and on the nature and circumstances of the offense of conviction. See Grennier, 453 F.3d at
445; Walker v. Prisoner Review Bd., 769 F.2d 396, 401 (7th Cir. 1985). Moreover, we have held
that “any due process violation caused by the presence of false or prejudicial information in
a prisonerʹs parole file is remedied by the prisoner’s right to review and respond to the
objectionable material,” Mosley v. Klincar, 947 F.2d 1338, 1341 (7th Cir. 1991) (citing Walker,
769 F.2d at 401), and Adams acknowledges that he had an opportunity to be heard and
respond at the parole hearings.
Next Adams argues that his rights under the equal protection clause were violated.
He contends that by singling him out for unfair treatment because he killed a police officer,
the parole board placed him in a “class of one.” See Engquist v. Or. Dep’t of Agric., 128 S. Ct.
2146, 2148‐2149 (2008); Willowbrook v. Olech, 528 U.S. 562, 564 (2000). This claim has no
merit. The parole board’s inherent discretion necessitates that some prisoners will receive
more favorable treatment than others. Adams’s “class of one” argument also fails because
he states that about 100 other prisoners serving life sentences have also been denied
parole—therefore other similarly situated prisoners are receiving the same treatment as he
is. See Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982) (“The gravamen of equal
protection lies not in the fact of deprivation of a right but in the invidious classification of
persons aggrieved by the state’s action.”).
Finally Adams argues that the change in the frequency of his parole hearings and the
addition of victims’ notification laws (VNLs) violated the ex post facto clause. He asserts
No. 07‐3453 Page 4
that when he was convicted he was eligible for parole and that his sentence has always been
subject to adjustment through the parole process. See Johnston v. Dobeski, 739 N.E.2d 121, 125
(Ind. 2000). Furthermore, according to Adams, the VNLs that were enacted after his
conviction, which provide for public parole hearings, so strongly prejudice him that they
effectively increase his time in prison.
We note that both parties have devoted many pages in their briefs to the issue of
parole eligibility at the time of Adams’s conviction, and they have cited conflicting
authority on the issue. Compare Lockert v. State, 271 Ind. 226, 232 (Ind. 1979); Jennings v.
State, 270 Ind. 699, 703 (Ind. 1979); Stuck v. State, 259 Ind. 291, 293 (Ind. 1972); White v.
Indiana Parole Bd., 713 N.E.2d 327, 332 (Ind. Ct. App. 1999), indicating that there was no
parole eligibility for prisoners serving life sentences prior to 1979, with Dobeski, 739 N.E.2d
at 125, stating that such eligibility did exist. We take no position on this issue of state law,
and we find that the resolution of this debate is not necessary to decide Adams’s claim
because federal law clearly indicates that his claim has no merit. A law violates the ex post
facto clause only “if it punishes as criminal conduct an act that was innocent when done, or
makes more burdensome the punishment for a crime after its commission.” O’Grady v.
Libertyville, 304 F.3d 719, 723 (7th Cir. 2002). The changes in Indiana’s parole procedures did
not alter the statutory punishment for the crime (life in prison) or the standards for
determining the initial date for parole consideration (after 20 years of serving time) or
change the standards for determining a prisoner’s suitability, set out in IND. CODE
§ 11‐13‐3‐3 and 220 IND. ADMIN. CODE 1.1‐2‐3. See Garner v. Jones, 529 U.S. 244, 250 (2000)
(upholding Georgia administrative regulation changing frequency of parole hearings for
prisoners serving life sentences from every three years to every eight years against ex post
facto challenge); Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995) (holding that there was
no ex post facto violation when California changed frequency of reconsideration for parole
from every year to up to every three years for prisoners convicted of more than one
homicide). Finally, we have explicitly held that the retroactive application of VNLs does not
implicate the ex post facto clause. See Mosley, 947 F.2d at 1340.
AFFIRMED.