Wilfred Holmes v. Christopher Christie

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 19-1089
____________

WILFRED LEE HOLMES,
Appellant

v.

N.J. GOV. CHRISTOPHER J. CHRISTIE, both individually
and in his official capacity as the Governor of the State of
New Jersey; DAVID W. THOMAS, both individually and in
his official capacity as the executive director of the N.J. State
Parole Board; JAMES T. PLOUSIS, both individually and in
his official capacity as chairman of the N.J. State Parole
Board; SAMUEL PLUMERI, JR., both individually and in
his official capacity as vice-chairman of the N.J. State Parole
Board; STUART RABNER, both individually and in his
official capacity as the chief justice of the Supreme Court;
CARMEN MESSANO, both individually and in her official
capacity as the acting presiding judge for the administration
for the Superior Court of New Jersey, Appellate Division;
MARGARET M. HAYDEN; JOHN R. TASSINI, both
individually and in their official capacities as judges of the
Superior Court, Appellate Division
____________

On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 2:16-cv-1434)
District Judge: Honorable Esther Salas
____________

Argued March 16, 2021

Before: KRAUSE, PHIPPS, and FUENTES, Circuit Judges
 (Opinion Filed: September 22, 2021)

Julie Michalski
Steptoe & Johnson
227 West Monroe Street
Suite 4700
Chicago, IL 60606

Steven Reed
Jessica I. Rothschild
Mark C. Savignac [Argued]
Steptoe & Johnson
1330 Connecticut Avenue, N.W.
Washington, DC 20036

Pro Bono Counsel for Appellant

Deborah A. Hay [Argued]
Christopher C. Josephson
Office of the Attorney General of New Jersey
25 Market Street
Richard J. Hughes Justice Complex
8th Floor, West Wing
Trenton, NJ 08625

Counsel for Appellees

____________

OPINION OF THE COURT
____________

KRAUSE, Circuit Judge.

The Ex Post Facto Clause prevents the government
from increasing a prisoner’s punishment retroactively. This
case requires us to decide whether the Clause permits New
Jersey to retroactively enforce certain parole rules. To answer
that question, we look to the rules’ “practical effect” on each
inmate’s chances of receiving early release. Richardson v. Pa.
Bd. of Prob. & Parole, 423 F.3d 282, 290 (3d Cir. 2005). For
2
many prisoners, no doubt, the rules present at most a remote
risk to their parole prospects. For the Appellant here, however,
the change plausibly produced a significant risk of prolonging
his time behind bars. Thus, we vacate the District Court’s
dismissal order, reinstate Appellant’s ex post facto claim, and
remand for discovery.

I. Background

A. New Jersey’s Parole System

Before turning to the facts of this case, we introduce
New Jersey’s parole system. Since its inception, that system
has featured two types of parole hearings: initial hearings and
successive hearings. When a prisoner first becomes eligible
for release, New Jersey’s Parole Board holds a hearing, decides
whether to grant parole, and, if it declines to do so, sets a date
to revisit its decision. See N.J. Stat. Ann. § 30:4-123.53(a)
(2011). In the course of these initial hearings, the Board may
consult any information it deems relevant, including an
inmate’s criminal history. See id.

Before 1997, however, a different set of evidentiary
rules governed successive parole hearings. Under those rules,
the Board could not consider old information,1 see id. § 30:4-
123.56(c) (1996), and instead based successive parole
decisions “strictly on information developed since the previous
denial of parole,” Assembly Law and Public Safety
Committee, Statement to Assembly Bill No. 21 (Mar. 3, 1997).
In practice, this prevented the Board from taking account of
inmates’ criminal history—often the most damaging aspect of
their records—after the initial hearing.

The change wrought in 1997 had its roots in the early
1990s when many states moved to recalibrate their parole
regimes. See, e.g., Mickens-Thomas v. Vaughn, 321 F.3d
374, 380 (3d Cir. 2003) (describing the impetus behind
contemporaneous changes in Pennsylvania’s parole law). Not

1
New Jersey’s 1948 Parole Act governs Holmes’s
case. Although New Jersey repealed that statute in enacting
its 1979 Parole Act, “the standards of the 1979 and 1948 Acts
are identical with respect to inmates convicted before 1979.”
Royster v. Fauver, 775 F.2d 527, 535 (3d Cir. 1985).
3
content to sit on the sidelines, New Jersey’s then-Governor
appointed a Commission to study the state’s parole system
and propose reforms. The history from that point on is
described in detail in Trantino v. New Jersey State Parole
Board—a seminal state court opinion in which the Superior
Court’s Appellate Division upheld that change under the Ex
Post Facto Clause as merely “procedural” and not
“substantive.” 752 A.2d 761, 780–82 (N.J. Super. App. Div.
2000).

According to the Appellate Division, the purpose of
the Commission was to “recommend legislation that would
‘enlarge the discretion of the Board to deny parole,’” and the
Commission’s final report documented the practical effects of
the rule against considering old information in successive
hearings. Id. at 780 (quoting James Holzapfel, et al., Final
Report of the Study Commission on Parole (Dec. 1996),
[hereinafter, Final Report]2). Among those effects were that
“‘the Board [wa]s effectively required to grant parole, even
though the inmate may not be rehabilitated.’” Id. (quoting
Final Report at *21). And because the Commission ranked
the rule as “one of the most significant and inappropriate
limitations that existing law place[d] on the Board’s
discretion,” it urged New Jersey’s legislature to relax the rule
and allow the Parole Board to examine “all relevant
information” at every hearing. Id. (internal quotation marks
omitted) (quoting Final Report at *21–22).

B. The 1997 Amendments

Just a few months after the Commission released its
Final Report, the New Jersey legislature implemented its
recommendations in the 1997 Amendments to the Parole Act.
See 1997 N.J. Sess. Law Serv. ch. 213. Two of those
amendments undergird this appeal:

• The All-Information Provision: Consistent with the
Commission’s recommendation, the Amendments
eliminated the prohibition against reviewing old
information. Compare N.J. Stat. Ann. § 30:4-123.56(c)

2
The Final Report is available at:
https://dspace.njstatelib.org/xmlui/bitstream/handle/10929/18
629/P9591996a.pdf.
4
 (2011), with N.J. Stat. Ann. § 30:4-123.56(c) (1996).
Under the new regime, the Board enjoys free rein to revisit
an inmate’s criminal history during successive hearings.

• The Risk-Assessment Requirement: The Amendments
also instructed the Board to prepare an “objective risk
assessment” before every parole hearing, including
successive hearings. N.J. Stat. Ann. § 30:4-123.52(e)
(2001). This assessment must incorporate old
information—including an inmate’s “educational and
employment history” and “family and marital history”—
along with any other “static and dynamic factors which may
assist the [B]oard.” Id.

Since 1997, the Board has applied these changes to all
prisoners, including those convicted before the Amendments
came into force.3 See Trantino, 752 A.2d at 781.

C. This Lawsuit

Appellant Wilfred Lee Holmes is no stranger to New
Jersey’s parole system.4 When Holmes was on parole in the
early 1970s, he killed two acquaintances, carried out the

3
The Amendments also adjusted the standard governing
parole requests. Before 1997, the Board could deny parole
only if “a preponderance of the evidence” showed “a
substantial likelihood that the inmate w[ould] commit a crime
. . . if released.” N.J. Stat. Ann. § 30:4-123.56(c) (1996).
Under the Amendments, however, the Board may refuse
release whenever “a preponderance of the evidence [indicates]
that the inmate has failed to cooperate in his or her own
rehabilitation or that there is a reasonable expectation that the
inmate will violate conditions of parole.” N.J. Stat. Ann.
§ 30:4-123.56(c) (2011). This change is not at issue here.
4
Because Holmes brought this appeal pro se, we invited
Steptoe & Johnson to serve as pro bono counsel. We express
our gratitude to Julie Michalski, Steven Reed, Jessica I.
Rothschild, Mark C. Savignac, and their firm for accepting this
matter pro bono, and we commend them for their excellent
briefing and argument. Lawyers who act pro bono fulfill the
highest service that members of the bar can offer to indigent
parties and to the legal profession.
5
execution-style murder of a 69-year-old, and wounded a police
officer who tried to arrest him. State courts subsequently
convicted Holmes of multiple homicides and sentenced him to
life in prison with the possibility of parole.

Forty-eight years and several parole hearings later,
Holmes remains behind bars. At the initial hearing, performed
in 2001, the Board refused to release Holmes and scheduled a
follow-up hearing for about a decade later. Then, in 2012, the
Board held the hearing that is the subject of this appeal.

To announce the results of that hearing, the Board
issued a detailed written statement. For the most part, the
statement examines evidence the pre-1997 rules would have
excluded. It probes Holmes’s past parole violations, highlights
the homicides that led to his life sentences, and scrutinizes the
shootout that preceded his arrest. Aside from analyzing this
old information, the statement also discusses Holmes’s 2012
interview with the Board, and his unblemished disciplinary
record since his initial parole hearing. Without spelling out
how much weight it placed on each of these factors, the Board
rejected Holmes’s request for release.

Convinced that the Board “should have considered only
‘new’ information,” Holmes implored New Jersey’s Appellate
Division to vacate the Board’s decision on ex post facto
grounds. Holmes v. N.J. State Parole Bd. (“Holmes I”), No. A-
1315-13T2, 2015 WL 4544689, at *7 (N.J. Super. App. Div.
July 29, 2015). But relying on Trantino, the Appellate
Division rebuffed Holmes’s claim and upheld the Board’s
decision in full.

Holmes then submitted a pro se complaint in federal
5
court. Though the complaint advanced at least a dozen
different claims, the District Court focused on two that are at
issue here. Holmes v. Christie (“Holmes II”), No. 16 Civ. 1434
(ES) (MAH), 2018 WL 6522922, at *1 (D.N.J. Dec. 12, 2018).
The first challenged the Board’s retroactive application of the
1997 Amendments as contrary to the Ex Post Facto Clause.

It is undisputed that Holmes’s claims may be raised in
5

a civil rights complaint under 42 U.S.C. § 1983, rather than in
a habeas petition. See Wilkinson v. Dotson, 544 U.S. 74, 81–
82 (2005).
6
J.A. at 34. In his complaint, Holmes explicitly cited the
Appellate Division’s decision in Trantino as “not[ing]” that the
“express intent of the [1997] [A]mendment[s]” was to make it
more difficult for prospective parolees to earn parole. J.A. at
30. Having clearly understood the nature of the claims Holmes
was raising, the District Court reviewed the relevant case law
and identified that New Jersey courts had already concluded
that Trantino foreclosed Holmes’s ex post facto claim. Holmes
II, 2018 WL 6522922, at *2 (quoting Holmes I, 2015 WL
4544689, at *7 (quoting Trantino, 752 A.2d at 681–82)). The
second criticized the Board’s approach as inconsistent with the
Due Process Clause. J.A. at 35. To right these alleged wrongs,
Holmes requested that the Board hold a new parole hearing
without examining old information.

But when the Government moved to dismiss Holmes’s
claims, the District Court assented.6 Notwithstanding the
Appellate Division’s acknowledgement that the Board was
“effectively required to grant parole” prior to the 1997
Amendments, Trantino, 752 A.2d at 780, as a practical matter
the District Court rejected the ex post facto claim, reasoning
that the “Board’s consideration of factors [related to]
recidivism was consistent with the goals of either version of
the [New Jersey] statute,” Holmes II, 2018 WL 6522922, at *6.
In denying the due process claim, the Court observed that
Holmes had received all procedural protections the
Constitution requires.

This timely appeal followed.

II. Ex Post Facto Claim7

The central question presented is whether the Board’s
decision conflicts with the Ex Post Facto Clause. Answering

6
The complaint names numerous New Jersey officials
as Defendants. For the sake of simplicity, we refer to them
collectively as the “Government.”
7
The District Court retained jurisdiction under 28
U.S.C. § 1331, and we wield jurisdiction under 28 U.S.C.
§ 1291. We exercise plenary review over a district court’s
dismissal of claims under Rule 12(b)(6), see Geness v. Cox,

7
that question takes us on a journey with three stages. We first
familiarize ourselves with the constitutional landmarks that
guide our analysis. Following those landmarks, we find that
Holmes’s claim merits discovery. And with our own sojourn
complete, we chart where the Government’s counterarguments
stray off course.

A. Constitutional Landmarks

Before setting out, we sketch the key features of what
for many represents an unfamiliar legal landscape. Though the
Ex Post Facto Clause rarely appears in casebooks or civics
classrooms, the Framers ranked it among the Constitution’s
most fundamental guarantees. See The Federalist No. 44, at
282 (C. Rossiter ed. 1961) (James Madison); id. No. 84, at 511
(Alexander Hamilton). The Clause continues to serve vital
purposes today. It prohibits legislatures from “enacting
arbitrary and vindictive” laws that target disfavored groups.
Miller v. Florida, 482 U.S. 423, 429–30 (1987), abrogated on
other grounds by Cal. Dep’t of Corr. v. Morales, 514 U.S. 499,
506–07 n.3 (1995); see also Peugh v. United States, 569 U.S.
530, 541 n.4 (2013). It promotes the separation of powers “by
confining the legislature to penal decisions with prospective
effect and the judiciary and executive to applications of
existing penal law.” Weaver v. Graham, 450 U.S. 24, 29 n.10
(1981). And it provides citizens with “fair warning” as to a
crime’s “effective sentence.” Id. at 28, 32.

To achieve these ends, the Clause extends to some
“changes in laws governing parole of prisoners.” Garner v.
Jones, 529 U.S. 244, 250 (2000). At the Founding, long prison
sentences were unusual, and parole was almost unknown. See
Daniel S. Medwed, The Innocent Prisoner’s Dilemma:
Consequences of Failing to Admit Guilt at Parole Hearings,
93 IOWA L. REV. 491, 498 (2008); Will Tress, Unintended
Consequences: Defining Felony in the Early American
Republic, 57 CLEV. ST. L. REV. 461, 468–70 (2009). In time,
many states embraced parole regimes, and “eligibility for
reduced imprisonment” emerged as a “significant factor” in a

902 F.3d 344, 353–54 (3d Cir. 2018), accepting the
complaint’s factual allegations as true and construing them in
the light most favorable to the non-moving party, see Weimer
v. County of Fayette, 972 F.3d 177, 180 (3d Cir. 2020).
8
defendant’s punishment. Lynce v. Mathis, 519 U.S. 433, 445–
46 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 32
(1981)). Thus, “an offender, prior to his conviction and
sentencing, is entitled to know not only his maximum possible
punishment, but also his or her chances of receiving early
release.” Mickens-Thomas, 321 F.3d at 392.

But the same logic that supports extending the Clause to
parole also limits its reach. When a parole rule produces a
“significant” risk of increasing a plaintiff’s time behind bars,
retroactively applying the rule frustrates fair notice, and thus
thwarts the Clause. Morales, 514 U.S. at 508. When a “minor”
change presents only a “remote risk of impact on a prisoner’s
expected term of confinement,” however, the Clause’s
purposes remain undisturbed. Id. A limit on “the hours that
prisoners may use the prison law library,” for example, poses
no ex post facto problem. Id. at 508–09. The “controlling
inquiry,” then, is whether a challenged rule “creates a
significant risk of prolonging [the plaintiff’s] incarceration.”
Garner, 529 U.S. at 250–51.

A plaintiff can satisfy this risk-based standard in two
ways. In some cases, the requisite risk is “inherent” in a new
rule, so that the government contradicts the Clause whenever
it enforces the rule retroactively. Id. at 251. In other cases,
though, “the rule [will] not by its own terms show a significant
risk.” Id. at 255. The question then becomes whether a
sufficient risk arises from the rule’s “practical
implementation.” Id. Which of these paths a plaintiff pursues
carries important consequences. The first path presents a
question of law courts can answer at the pleading stage; the
second implicates a fact-intensive inquiry that may require
discovery to resolve. Garner, 529 U.S. at 256 (remanding to
consider discovery because “[t]he record before the Court of
Appeals contained little information bearing on the level of risk
created by the change in law.”); Richardson, 423 F.3d at 291.

Few successful parole challenges follow the first path.
What defines most parole regimes—including New Jersey’s—
is that release decisions depend on “individualized[,]
discretionary appraisals.” Perry v. N.J. State Parole Bd., 208
A.3d 439, 443 (N.J. Super. App. Div. 2019) (internal quotation
marks and citation omitted). That means a parole rule’s

9
“practical effect” usually turns not on the rule’s terms, but on
how those terms are implemented. Richardson, 423 F.3d at
290.

This point is best illustrated by a pair of Supreme Court
cases. The more typical case, Garner, centered on a change in
the frequency of parole hearings. See 529 U.S. at 247. Before
the change, Georgia’s parole board considered each prisoner’s
case every three years; after the change, the board could wait
up to eight years between reviews. Garner, 529 U.S. at 254.
Rather than condemning the challenged rule as an “inherent”
ex post facto violation, the Court recognized that the rule’s
constitutionality hinged on the board’s “actual practices.” Id.
at 251, 256. Imagine, for instance, that the board exercised its
discretion to “expedite[ ] parole reviews in the event of a
change in [a prisoner’s] circumstance[s].” Id. at 254 (internal
quotation marks omitted). In that case, the rule would generate
“only the most speculative and attenuated possibility” of
prolonged imprisonment. Id. at 251 (internal quotation marks
omitted). So, the Court concluded, Garner’s ex post facto
claim rose or fell based on the rule’s “practical
implementation.” Id. at 255.

While Garner represents the norm, Lynce represents the
exception. Under the early-release program Lynce reviewed,
Florida prisoners accrued release credits whenever “the
population of the state prison system exceeded predetermined
levels.” 519 U.S. at 435. Once the credits “resulted in [certain]
prisoners’ release from custody,” however, Florida cancelled
the program and re-arrested those who benefited from it. Id.
In these exceptional circumstances, the Court saw no need to
look beyond the new rule’s terms. Unlike a change in a
discretionary parole regime, the Court explained, cancelling
the credits “unquestionably disadvantaged [the prisoners]
because it resulted in [their] rearrest and prolonged [their]
imprisonment.” Id. at 446–47.

Read together, Garner and Lynce stand for a simple
proposition: A rule’s terms establish an ex post facto violation
only if they leave a parole board with little or no discretion.
Otherwise, a plaintiff must show that the rule’s implementation
presents a significant risk. With the risk-based standard as a

10
compass, and with the two paths for satisfying that standard as
a map, we advance to the next stage of our analytical inquiry.

B. Holmes’s Claim

In challenging the Board’s parole decision, Holmes
launches a multi-pronged assault on the retroactive application
of the 1997 Amendments. His main thrust targets the all-
information provision. He also levels more cursory attacks on
the risk-assessment requirement. We address each argument
in turn.

1. The All-Information Provision

Holmes focuses most of his firepower on the all-
information provision. First, he insists that the provision’s
terms establish the requisite risk. Second, he argues that the
Board implemented the provision in a way that plausibly
conflicts with the Clause. As we explain, the first theory
founders, but the second succeeds.

a) Terms

Our initial inquiry is whether the all-information
provision’s terms produce a significant risk. In principle, the
provision empowers the Board to examine old information
during successive parole hearings. See N.J. Stat. Ann. § 30:4-
123.56 (2011). In practice, it enables the Board to entertain
factors—especially an inmate’s criminal history—that often
militate against release. Thus, common sense suggests the
provision will sometimes prompt the Board to deny parole
when it might otherwise have granted release.

But whether that risk materialized in Holmes’s case
depends on how the Board implements the all-information
provision. Perhaps the Board continues its past practice of
treating new information as dispositive. Perhaps the Board
prioritizes old information that helps prisoners, such as family
or educational history.8 Or perhaps Holmes has committed

8
Because the 1997 Amendment requires release
“unless” evidence before the Board justifies continued
confinement, Holmes maintains that the Board can consult

11
new disciplinary infractions that the Board views as
foreclosing release, no matter what old information it
considers. We cannot rule out these and other possibilities
without reviewing “at least some evidence,” Richardson, 423
F.3d at 293, as to “the manner in which [the Board] is
exercising its discretion,” Garner, 529 U.S. at 256.

The upshot is that this review of the all-information
provision’s terms leads to a dead-end. Whether the provision’s
retroactive application passes constitutional muster depends
not on its terms, but on how the Board implements them.

b) Implementation

With Holmes’s initial theory out of the picture, we come
to the crux of this case. To prevail here, Holmes must establish
that the Board implemented the all-information provision in a
way that created a significant risk of prolonging his
imprisonment. See id. at 255. This is a “fact-intensive
inquiry,” Richardson, 423 F.3d at 291, but to survive a motion
to dismiss, he “need only show that his ex post facto claim—
like any other claim—is ‘plausible,’” Daniel v. Fulwood, 766
F.3d 57, 61–62 (D.C. Cir. 2014) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).

Holmes easily clears that hurdle, especially when his
complaint is “liberally read under the relaxed standards
applicable to a pro se complaint.” Tunnell v. Wiley, 514 F.2d
971, 974 (3d Cir. 1975). To demonstrate that the provision
harmed him, he marshals two types of support: The Board’s
written statement and its historical practices. The statement
suggests that old information influenced the Board’s decision
“in [Holmes’s] case.” Richardson, 423 F.3d at 293. And as a
historical matter, he plausibly alleges that “similarly situated

only old information that harms prisoners. N.J. Stat. Ann.
§ 30:4-123.56(c) (2011). But Holmes’s conclusion does not
follow from his premise. The word “unless” establishes that
the aggregate evidence before the Board must weigh against
release, not that every individual piece of evidence must do so.
Indeed, the Board’s own regulations authorize the review of
some categories of old information—such as inmates’ military
service—that normally favor release. See N.J. Admin. Code
§ 10A:71-3.11(b)(18).
12
inmates” tended to win release before the all-information
provision came into effect. Newman v. Beard, 617 F.3d
775,786 (3d Cir. 2010). At the pleading stage, then, Holmes’s
claim survives dismissal.

i. The Board’s Written Statement

To explain why it refused to release Holmes, the Board
prepared a ten-page written statement.9 The statement does not
spell out how much weight the Board placed on old
information. But a reasonable reading of the statement’s
structure and substance reveals that Holmes’s criminal history
played an important part in the result, plausibly alleging that
consideration of that history created a significant risk of
prolonging his imprisonment.

We start with structure. Three structural features signal
that old information influenced the Board’s inquiry. First, the
bulk of the statement—more than five of its ten pages—trains
on Holmes’s criminal history. Second, the statement does not
designate that history as background, but instead includes it in
the same section as its other analysis. Finally, of six headers
summarizing why the Board refused to release Holmes, five
rest on old information. For example, the statement
underscores the “increasingly more serious” nature of
Holmes’s crimes, his track record of “commit[ing] new
offenses” while on parole, and the failure of prior
incarcerations to “deter [his] criminal behavior.” J.A. at 46–
48. In combination, these structural features make it
reasonable to infer that Holmes’s criminal history contributed
to the Board’s conclusion.

That inference finds support in the decision’s substance.
Recall that New Jersey’s Parole Act tasks the Board with
predicting whether Holmes “will commit a crime . . . if

9
The statement purports to summarize the Board’s
“reasons for establishing a future parole eligibility date outside
of the administrative guidelines,” J.A. at 45, but the parties
agree that it also explains the parole denial.

13
released.”10 N.J. Stat. Ann. § 30:4-123.56(c) (1996). If
someone set out to construct a criminal history that portends
future crimes, it might look a lot like Holmes’s. First in 1963,
then in 1965, and again in 1968, 1969, 1970, 1971, and 1972,
Holmes won early release, only to violate the conditions of his
parole. And each time he was freed, he committed more
serious offenses, culminating in a series of homicides. It is
plausible that this pattern of escalating parole violations
prompted the Board to conclude that Holmes would commit
yet another crime if released.

In an ordinary case, a parole board’s careful scrutiny of
a prisoner’s past conduct upon early release would provide a
reason to uphold the board’s decision, not to question its
constitutionality—particularly where the board’s stated goal is
to identify a “substantial likelihood that the inmate will commit
a crime . . . if released.” N.J. Stat. Ann. § 30:4-123.56(c)
(1996). But at the time of Holmes’s crimes, New Jersey
forbade its Board from examining criminal history during
successive parole hearings. See id. The Board’s detailed
discussion of Holmes’s history demonstrates that it
retroactively applied the 1997 Amendments to Holmes in
denying him parole, plausibly substantiating the risk that the
all-information provision had the “practical effect” of
extending his imprisonment. Richardson, 423 F.3d at 289.

ii. The Board’s Historical Practices

Our review of the Board’s written decision establishes
that the retroactive consideration of Holmes’s past conduct
plausibly “create[d] a significant risk of prolonging [his]
incarceration.” Garner, 529 U.S. at 250–51. But rather than
rely on the Board’s statement alone, Holmes also argues that
similarly-situated prisoners tended to win release before 1997.
That conclusion is bolstered by Trantino and the Final Report.
Recall that the purpose of the Commission was to “enlarge the
discretion of the Board to deny parole,” and it recommended
eliminating the old parole rules specifically because those rules
“effectively required [the Board] to grant parole” unless an
inmate had committed “institutional infractions . . . since his or
10
It is undisputed that this standard, excerpted from the
pre-1997 rules, governed the Board’s decision in Holmes’s
case. See Holmes I, 2015 WL 4544689, at *4.
14
her last review.”11 Trantino, 752 A.2d at 780 (emphasis added)
(quoting Final Report at *21). Because Holmes had remained
“infraction free” after his initial hearing, J.A. at 52, these
findings suggest that he would have enjoyed strong parole
prospects under the pre-1997 rules.

This inference is corroborated, at least to some extent,
by an improvised data set that Holmes cites in his pro se
complaint. Drawing on a string cite in a New Jersey Supreme
Court opinion, Holmes identifies a group of felons who were
sentenced to death before the 1970s and then had their
sentences reduced to life in prison when New Jersey abolished
the death penalty. J.A. at 15 (citing Trantino v. N.J. State
Parole Bd., 764 A.2d 940, 947 n.2 (N.J. 2001); see also State
v. Funicello, 286 A.2d 55, 58–59 (N.J. 1972). Holmes points
out that under a parole scheme where the Board could not
consider prospective parolees’ criminal history, these serious
offenders were able to earn parole after fewer than 20 years in
prison. From here, Holmes—who has spent many more years
in prison—argues that had the Board limited its consideration
to only new developments since his last hearing, he too could
have earned parole already. Thus, we understand Holmes to
allege that had he received similar treatment, it is plausible that
he would have won release at the 2012 hearing.

Unwilling to accept this point, the Government names
twenty-two “convicted murderers” who received life sentences
before the 1997 Amendments, obtained parole afterwards, and

11
While the Commission’s report casts new infractions
as the sole basis for a successive parole denial under the pre-
1997 rules, the Government counters that the Board sometimes
refused release based on psychological assessments. But the
cases the Government cites concern parole hearings held after
the 1997 Amendments came into effect. Those authorities
therefore shed little light on the Board’s practices before the
Amendments. In any event, the Commission’s central
finding—that the grounds for a successive parole denial were
extremely limited under the old rules—remains unchallenged.

15
did so about as quickly as the death-row inmates.12 Answering
Br. at 25. If these prisoners represent the broader population
of New Jersey homicide offenders, their experience implies
that the Amendments made little difference to the Board’s
propensity to grant parole. But if the Government selected
these offenders because they secured release relatively
quickly, their experience tells us nothing about the
Amendments’ implementation. And, although we invited the
Government to clarify how it created this list, it demurred.
This failure to contextualize the data leaves us no choice but to
discount it.

None of this is to say that Holmes has conclusively
established the requisite risk. To the contrary, all of his
evidence is susceptible to multiple interpretations. Maybe the
Commission overstated the practical effect of the pre-1997
rules on the practice of the Parole Board generally, or the
death-row data is incomplete or otherwise misleading. After
all, we observed in Royster that “the standards of the 1979 and
1948 Acts are identical with respect to inmates convicted
before 1979.” 775 F.2d at 535. Maybe in Holmes’s particular
case, the Board assigned less weight to old information than
the written statement’s structure and substance suggest. At this
stage, however, our obligation is to draw all reasonable
inferences in Holmes’s favor. See Daniel, 766 F.3d at 61–62.

When we do, Holmes’s complaint and the documents it
incorporates by reference tell a plausible story: The old rules
protected prisoners from repeated parole denials based on their
criminal history; the 1997 Amendments removed that
protection; and the Board relied partly on Holmes’s history in
refusing to release him. So, while Holmes’s attack on the all-
information provision’s implementation may hit rough water
in discovery, it finds shelter enough to survive the
Government’s motion to dismiss and to undergo discovery,
which the District Court may wish to sequence, see Fed. R.
Civ. P. 26(d)(3), as to the practical effect of the pre-1997 rules,

12
According to the Government, this list draws on data
from the New Jersey Department of Corrections website.
Whether to take judicial notice of that data is not a question we
need to decide today, because even if we did so, it would not
change our conclusion.
16
the Board’s consideration of past conduct in Holmes’s case,
and whether their consideration created a significant risk of
prolonging his imprisonment relative to the old rules.

2. The Risk Assessment-Requirement

Apart from installing the all-information provision, the
1997 Amendments also instruct the Board to prepare “an
objective risk assessment” before every parole hearing,
including successive hearings. N.J. Stat. Ann. § 30:4-
123.52(e). Each assessment must survey an inmate’s
“educational and employment background” and “family and
marital history,” among other factors. Id. What this means in
practice is that assessments often place old information before
the Board. Holmes therefore argues that retroactively applying
the risk-assessment requirement contradicts the Clause.

We need not tarry long over this theory. To sustain it,
Holmes must show that either the risk-assessment
requirement’s terms or its implementation “individually
disadvantaged” him. Richardson, 423 F.3d at 294. He has
done neither.

There is no serious argument that the risk-assessment
requirement’s text establishes the requisite risk. See Garner,
529 U.S. at 255. By design, the requirement directs the Board
to produce a new assessment of an inmate’s psychological state
before each successive parole hearing. See N.J. Stat. Ann.
§ 30:4-123.52(e). That the assessments draw on a variety of
sources, including old information, is not decisive. A current
assessment of an inmate’s recidivism risk has always been part
of the parole process. See N.J. Stat. Ann. § 30:4-123.56(c)
(1996); see also Greenholtz v. Inmates of Neb. Penal and Corr.
Complex, 442 U.S. 1, 10 (1979) (defining parole as an
“assessment of . . . what a man is and what he may become”)
(internal quotation marks and citation omitted).

It is conceivable, of course, that the Board implemented
the risk-assessment requirement in a way that harmed Holmes.
If an assessment recites old information, and if the Board
fixates on that information, an inmate might have a plausible
ex post facto claim. Here, however, the Board’s written
statement says nothing about old information embedded in the
risk assessments—indeed, it does not discuss the assessments

17
at all. See J.A. at 45–54. Without more, we cannot conclude
that the risk-assessment requirement played any role, let alone
a “significant” one, in the Board’s calculus. Garner, 529 U.S.
at 255.

Where does that leave us? Of the many theories Holmes
floats, only one merits discovery. The risk-assessment
requirement fails to support a viable claim. The same is true
of the all-information provision’s terms. But that provision’s
implementation is a different story. As the Board’s written
statement and historical practices attest, the provision plausibly
created a significant risk of prolonging Holmes’s
imprisonment. Having shown how Holmes’s claim reaches
safe harbor, all that remains is to locate where the Government
loses its way.

C. The Government’s Counterarguments

In urging us to chart a different course, the Government
advances two arguments.13 In the first, it invites us to classify
the 1997 Amendments as procedural changes exempt from ex
post facto scrutiny. In the second, the Government submits
that but for the 1997 Amendments, the Board would still have
refused to release Holmes. Neither proposal is compatible with
our precedents.

1. The Substantive-Procedural Distinction

The Government’s initial argument borrows from a line
of New Jersey Appellate Division cases. Under the Appellate
Division’s approach, retroactively enforcing a “substantive”
rule offends the Clause, but doing the same with a “procedural”
rule does not. See Trantino, 752 A.2d at 780–81. Because the
1997 Amendments expand the evidence available to the Board,
the Appellate Division deems them a “procedural

13
The Government declines to defend the District
Court’s rationale for dismissing Holmes’s ex post facto claim.
In rejecting that claim, the Court noted that “the Parole Board’s
consideration of factors that suggest recidivism was consistent
with the goals of either version of the statute.” Holmes II, 2018
WL 6522922, at *6. But our jurisprudence hinges on whether
a new rule creates a significant risk of extended imprisonment,
not on whether it aligns with broad penological principles.
18
modification” that lies outside the Clause’s reach. Id. at 781.
This logic led the Appellate Division to dismiss Holmes’s ex
post facto challenge, and the Government implores us to adopt
a similar approach here. But a test that formalistically
distinguishes between substantive rules and procedural ones
finds no foundation in controlling cases or the functional
approach that animates them.

A review of three leading cases reveals that a challenged
rule’s constitutionality hinges on its effect, not its form. In
Morales, the Supreme Court scrutinized a rule’s “effect on [a]
prisoner’s actual term of confinement.” 514 U.S. at 512
(emphasis added). In Richardson, we treated a rule’s “practical
effect” as the touchstone of our inquiry. 423 F.3d at 291. And
in Garner, the Supreme Court addressed a rule it described as
“procedural”—yet that label played no part in the Court’s
reasoning or result. 529 U.S. at 251, 254.

Not only do controlling cases eschew formalist
approaches generally, they expressly reject the specific tack the
Government takes here. More than a century ago, the Court
resolved a pair of ex post facto cases by deciding whether the
challenged rules assumed substantive or procedural form. See
Kring v. Missouri, 107 U.S. 221, 224 (1883); Thompson v.
Utah, 170 U.S. 343, 351–52 (1898). But the Court has long
since overruled those cases and renounced their reasoning. See
Collins v. Youngblood, 497 U.S. 37, 46 (1990) (“[B]y simply
labeling a law ‘procedural,’ a legislature does not thereby
immunize it from scrutiny under the Ex Post Facto Clause.”)
(citation omitted)). Time and again, the Court has refused “to
define the scope of the Clause along an axis distinguishing
between laws involving ‘substantial protections’ and those that
are merely ‘procedural.’” Carmell v. Texas, 529 U.S. 513, 539
(2000). Instead, the “controlling inquiry” is whether a law
“creates a significant risk of prolonging [the plaintiff’s]
incarceration.” Garner, 529 U.S. at 250–51.14

14
Pennsylvania Prison Society v. Cortes is not to the
contrary. See 622 F.3d 215 (3d Cir. 2010). It is true that Cortes
condoned the dismissal of a claim partly because the
challenged rules were “procedural and thus not ex post facto
laws.” Id. at 234. But Cortes went on to clarify that the word

19
 We appreciate that comity counsels caution before we
part ways with New Jersey’s Appellate Division. Yet few of
the Appellate Division’s cases grapple thoroughly with the Ex
Post Facto Clause. And, despite our best efforts, we see no
way to reconcile the Appellate Division’s formalist analysis
with the functional approach embodied in Morales,
Richardson, and Garner. So we cannot affirm on this basis.

2. The Board’s Review of New Information

The Government’s fallback position fares no better.
Had the Board restricted its review to new information, the
Government says, it would still have refused to release
Holmes. On the surface, this position seems to turn only on the
new information before the Board. On closer examination,
though, the Government’s argument enacts a subtle but
substantial shift in the governing standard. By framing the test
in terms of what the Board “would have” done, the
Government conflates a significant-risk with a but-for cause.
Arg. Tr. at 29. That contradicts controlling precedents, the
Clause’s purposes, and comity principles. See Morales, 514
U.S. at 509; Mickens-Thomas, 321 F.3d at 391–92. And when
we set aside the causation test, and instead focus on risk alone,
the Board’s review of new information fails to foreclose
Holmes’s claim.

a) Where the But-for Test Goes Awry

Three considerations convince us that a “but-for” test
has “no basis in federal ex post facto law.” Richardson, 423
F.3d at 292 n.5. First off, that test amounts to a more
demanding standard than one that turns on risk. To establish
but-for causation, a plaintiff must demonstrate that a new rule
probably accounted for an adverse parole decision. To satisfy
the risk-based standard, however, a plaintiff need only show a
“significant” possibility that a new rule prompted the parole

“procedure” serves as shorthand for rules that present a
“remote risk of impact on a prisoner’s expected term of
confinement.” Id. at 237 (quoting Morales, 514 U.S. at 508).
To the extent the Government construes Cortes more
broadly—as announcing an alternative to the risk-based
standard—its reading is inconsistent with Morales,
Richardson, and Garner.
20
denial. Morales, 514 U.S. at 509; Mickens-Thomas, 321 F.3d
at 392; see also Richardson, 423 F.3d at 292 (requiring a
“significant” effect, rather than a “determinative” one).
Confusing risk with causation thus artificially and
inappropriately raises the bar for ex post facto claims.

While the distinction between a significant risk and a
but-for cause may seem minor, it carries major consequences.
In parole cases, the Ex Post Facto Clause’s core mission is to
ensure defendants understand their “chances of receiving early
release” so “they can plea bargain and strategize effectively.”
Mickens-Thomas, 321 F.3d at 391–92. But the causation test
decouples our ex post facto analysis from this purpose.
Suppose, for example, that a rule cuts a prisoner’s chances of
release from 45% to 5%. That change would not constitute a
but-for cause of an adverse parole decision, but it could easily
inform a defendant’s trial and plea bargaining strategy. By
excluding this and similar scenarios from constitutional
protection, the causation test threatens to disable—or at least
diminish—one of the Clause’s central objectives.

Embracing a causation test would also endanger states’
authority over “confinement and release.” Garner, 529 U.S. at
252. Under a causation standard, federal courts would have to
predict not just whether a challenged rule might have been
significant, but whether it did control the outcome of a highly
individualized and discretionary state proceeding. And just as
federal courts’ reasoning would disturb state parole authority,
so too would their results. Whenever a court finds that a
change caused an adverse parole decision, the ensuing
judgment would amount to a declaration that the parole board
should grant release on remand.

In sum, the Ex Post Facto Clause takes risk, not
causation, as its touchstone. With that critical point clarified,
we can make short work of the Government’s argument that
new information dominated the Board’s decision.

b) Why the Board’s Review of New Information
Does Not Defeat Holmes’s Claim

If we translate the Government’s argument into the
register of risk, it fails. In staking out its position, the
Government seizes on two types of new information. First, the

21
Board received several risk assessments that rated Holmes as a
“high risk” of committing future crimes.15 J.A. at 40. Second,
during a 2012 interview, Holmes “minimize[ed]” his past
offenses and declined to accept “full responsibility” for them,
an attitude the Board viewed as militating against release. Id.
at 50–52. Taken together, the Government suggests, this new
information left Holmes with such low odds of release that the
Board’s review of old information made no real difference.

This argument runs aground on a fundamental principle
that undergirds the risk-based standard. To measure Holmes’s
chances of receiving release, we avoid “post hoc” speculation,
Mickens-Thomas, 321 F.3d at 387, and instead anchor our
analysis in the Board’s “policy statements” and “actual
practices,” Garner, 529 U.S. at 256. The Government
overlooks this crucial lesson.

Contrary to the Government’s suggestion, none of the
Board’s practices conclusively establish that new information
controlled its thinking. As noted, the written statement makes
no mention of the risk assessments the Government insists the
Board relied on. See Mickens-Thomas, 321 F.3d at 387, 389
(disregarding a “post hoc defense” that “did not appear in the
formal Board decisions”). And, although the statement does
discuss Holmes’s 2012 interview, it portrays that interview as
a small piece of a larger puzzle.

Nor is the interview’s substance so damaging as to
deprive Holmes of any real hope for release. However
disappointing, Holmes’s reluctance to accept “full
responsibility” for decades-old crimes bears only indirectly on
his propensity to commit future offenses. J.A. at 52; see N.J.
Stat. Ann. § 30:4-123.56(c) (1996). That leaves open the
possibility that other new information might have overcome
the 2012 interview and convinced the Board to grant relief. To
take one example, the Board’s statement highlights Holmes’s
flawless disciplinary record over many years in prison. So had
the Board restricted its review to that new information, a
reasonable inference—though not the only one—is that
Holmes’s perfect prison record could have outweighed his
15
For the sake of argument, we assume that the
assessments constitute “new information” under the pre-1997
rule. N.J. Stat. Ann. § 30:4-123.56(c) (1996).
22
imperfect interview responses. To hold otherwise would
disregard our pleading-stage duty to draw inferences in
Holmes’s favor, not the Government’s.

In the final analysis, then, neither counterargument
scuppers Holmes’s ex post facto challenge. The formalistic
substantive-procedural distinction collides with controlling
cases. And when we analyze the new information before the
Board under the rubric of risk, rather than causation, it fails to
foreclose Holmes’s claim. Central to our conclusion, however,
is that this case comes before us on the pleadings. With more
information about the Board’s decision here, and about its
practices more generally, the District Court may well reach a
different result on remand. Our journey today shows that
Holmes’s claim is seaworthy—not unsinkable.

III. Due Process Clause

To supplement his ex post facto claim, Holmes briefly
invokes the Due Process Clause. On his account, the Clause
mandates that parole decisions must be grounded in whatever
rules governed at the time a prisoner committed a crime. But
the Ex Post Facto Clause, not the Due Process Clause,
establishes the relevant framework for resolving challenges to
the retroactive application of new criminal rules.

Neither the Due Process Clause’s procedural
component nor its substantive one announces an anti-
retroactivity principle. When a state creates a liberty interest
in parole, as the Government concedes New Jersey did here,16
it cannot deprive prisoners of that interest without providing
certain procedural protections. See Greenholtz, 442 U.S at 13,
16. The problem is that none of those protections prohibits the
retroactive application of new rules. See id. As for the
Clause’s substantive component, it controls only when a parole
board considers a factor that “shocks the conscience.”
Newman, 617 F.3d at 782 (internal quotation marks and
citation omitted). And as our cases confirm, an inmate’s
criminal history represents a common component of parole
decisions, not a shocking or constitutionally-suspect one. See

16
We express no view as to the merits of the
Government’s concession.
23
Block v. Potter, 631 F.2d 233, 238 (3d Cir. 1980); Greenholtz,
442 U.S. at 15.

Extending the Due Process Clause to this domain also
poses serious practical problems. Should Holmes’s theory
prevail, the Clause would bar the retroactive application of any
new parole rule. This promises to transform the Due Process
Clause into an end-run around the Ex Post Facto Clause, which
bars only the retroactive application of rules that reflect a
“significant risk of increased punishment.” Richardson, 423
F.3d at 290. And because its roots lie in the Due Process
Clause, this sweeping anti-retroactivity principle might extend
not just to criminal cases, but also to civil ones. These
profound consequences may explain why we have not found—
and Holmes has not identified—any case invalidating the
retroactive application of a new rule on due process grounds.
The due process claim therefore finds no support in precedent
or pragmatism, and we affirm its dismissal.

IV. Conclusion

For the foregoing reasons, we will vacate the dismissal
of Holmes’s ex post facto claim, affirm the dismissal of his due
process claim, and, as noted supra, remand for discovery to
determine whether the retroactive application of the 1997
Amendments to Holmes “create[d] a significant risk of
prolonging [his] incarceration.” Garner, 529 U.S. at 251.

24