F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 28 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
TODD POWELL,
Petitioner - Appellant,
v. No. 01-7125
CHARLES RAY, Warden *;
W.A. DREW EDMONDSON,
Attorney General of Oklahoma,
Respondents - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 99-CV-635-S)
Submitted on the briefs:
Todd Powell, Pro Se.
W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes,
Assistant Attorney General, Oklahoma City, Oklahoma, for Respondents-
Appellees.
*
Charles Ray replaced Stephen Kaiser as the warden of the Davis
Correctional Facility in January 2001.
Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
Circuit Judge.
BRORBY , Senior Circuit Judge.
Petitioner-appellant Todd Powell, proceeding pro se, is appealing the denial
of his petition for writ of habeas corpus. We previously granted Mr. Powell
a certificate of appealability on his claim that the 1997 amendments to Okla. Stat.
Ann. tit. 57, § 365, violate the Ex Post Facto Clause. Our jurisdiction arises
under 28 U.S.C. § 1291. We affirm the denial of Mr. Powell’s habeas petition. 1
Because Mr. Powell is not challenging the validity of his conviction and
sentence, but is instead challenging the implementation of the Oklahoma Truth in
Sentencing Act, 1997 Okla. Sess. Laws ch. 133, we analyze his petition as if it
had been filed under 28 U.S.C. § 2241, rather than 28 U.S.C. § 2254. See Montez
v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000); Henderson v. Scott , 260 F.3d
1213, 1214 (10th Cir. 2001), cert. denied , 122 S. Ct. 1930 (2002). Nonetheless,
“we still accord deference to the [Oklahoma Court of Criminal Appeals’]
determination of the federal constitutional issue.” Henderson , 260 F.3d at 1215.
1
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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In 1990, Mr. Powell pled guilty to second degree felony murder, after
former conviction of two or more felonies, and he was sentenced to thirty years
imprisonment. After entering his plea, Mr. Powell was informed by the
Oklahoma Pardon and Parole Board that he would be “considered” for
pre-parole supervised release in October 1998 and for parole in November 1999.
R., Doc. No. 10, Ex. A. Mr. Powell was further informed that these dates were
“tentative,” and that he would be “notified of any change in [his] parole
consideration date.” Id.
In 1997, the Oklahoma legislature enacted the Truth in Sentencing Act.
The Act abolished the “Preparole Conditional Supervision Program” under
Okla. Stat. Ann. tit. 57, § 365, 2
replacing it with “Specialized parole.” See
Okla. Stat. Ann. tit. 57, § 365 (1997). In accordance with this statutory change,
Mr. Powell was not considered for pre-parole supervised release in October 1998.
As originally scheduled, Mr. Powell was considered for parole in November 1999,
but he was denied parole.
In 1999, Mr. Powell filed a habeas petition in state court, arguing that the
amended statute violated the constitutional prohibition against ex post facto laws
because it retroactively eliminated his chance to be considered for pre-parole
2
Section 365 was originally enacted by the Oklahoma legislature in 1988,
and it was subsequently amended in 1989, 1990, 1991, and 1993. None of the
amendments between 1988 and 1993 are relevant to this appeal.
-3-
supervised release. The trial court denied his petition, and the Oklahoma Court of
Criminal Appeals affirmed, finding that:
The Truth in Sentencing Act’s elimination of, or replacement
of certain parole programs Petitioner might have been eligible for,
does not inflict a greater punishment upon Petitioner. Petitioner, or
any inmate for that matter, was never entitled to release under the
[Pre-Parole Conditional Supervision Program]. Eligibility for PPCS
was contingent upon an inmate meeting certain parole criteria and
receiving a favorable recommendation from the Oklahoma Pardon
and Parole Board. Because of such contingencies and speculation,
Petitioner cannot demonstrate he was ever entitled to release under
the PPCS program. The lack of such proof is fatal to Petitioner’s
quest for habeas relief.
R., Doc. No. 10, App. A at 2 (emphasis in original).
In his federal habeas petition, Mr. Powell has reasserted his claim that the
elimination of the pre-parole supervised release program violated the Ex Post
Facto Clause. The magistrate judge recommended that the district court deny the
petition because the elimination of the program “did not increase the punishment
prescribed at the time petitioner committed his criminal act.” R., Doc. No. 31
at 4. The district court adopted the magistrate judge’s recommendation and
denied the petition. 3
3
Mr. Powell also claims that the elimination of the pre-parole supervised
release program violated his rights under Article 5, ¶ 54 of the Oklahoma
Constitution which provides that “[t]he repeal of a statute shall not . . . affect any
accrued right, or penalty incurred, or proceedings begun by virtue of such
repealed statute.” Okla. Const. art. 5, ¶ 54. This argument is without merit
because Article 5, ¶ 54 only protects vested common law or statutory rights, see
(continued...)
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We recently summarized the constitutional prohibition against ex post facto
laws, and its application in the context of retroactive changes to laws governing
parole of prisoners, as follows:
The United States Constitution prohibits the states from
passing any “ex post facto Law.” U.S. Const. art. I, § 10, ¶ 1. This
clause “is aimed at laws that retroactively alter the definition of
crimes or increase the punishment for criminal acts.” Cal. Dep’t of
Corr. v. Morales , 514 U.S. 499, 504 (1995) (internal quotations and
citations omitted). Two critical elements must be present for a law to
fall within the ex post facto prohibition: “first, the law must be
retrospective, that is, it must apply to events occurring before its
enactment; and second, it must disadvantage the offender affected by
it.” Miller v. Florida , 482 U.S. 423, 430 (1987) (internal quotations
and citations omitted).
The Supreme Court has rejected the argument “that the Ex Post
Facto Clause forbids any legislative change that has any conceivable
risk of affecting a prisoner’s punishment.” Morales , 514 U.S. at 508.
The Ex Post Facto Clause was never intended to result in judicial
“micromanagement of an endless array of legislative adjustments to
parole and sentencing procedures . . .” Id. Instead, the Court has
consistently held that “the question of what legislative adjustments
will be held to be of sufficient moment to transgress the
constitutional prohibition must be a matter of degree.” Id. at 509
(internal quotations and citations omitted, emphasis in original).
“Retroactive changes in laws governing parole of prisoners, in some
3
(...continued)
Messenger v. Messenger , 827 P.2d 865, 871 (Okla. 1992), and Mr. Powell did not
have a vested right to pre-parole supervised release. Mr. Powell also claims that
he was denied parole in November 1999 because the Governor of Oklahoma had
adopted an unlawful policy of excluding all violent felons from being considered
for parole. While Mr. Powell asserted this claim in his traverse to respondents’
response to his habeas petition, see R., Doc. No. 26 at 9-11, he subsequently
waived it by failing to assert it in his objections to the magistrate judge’s findings
and recommendations, see id. at Doc. Nos. 31 and 33.
-5-
instances, may be violative” of the prohibition against ex post facto
laws, Garner v. Jones , 529 U.S. 244, 250 (2000), but the controlling
inquiry is not whether the law is retroactive, but “whether it produces
a sufficient risk of increasing the measure of punishment attached to
the covered crimes.’” Morales , 514 U.S. at 509 (footnote omitted);
see also Lynce v. Mathis , 519 U.S. 433, 444 (1997). When the
amendment creates only “the most speculative and attenuated
possibility” of increasing the measure of punishment, it is
“insufficient under any threshold” to violate the Ex Post Facto
Clause.” Morales, 514 U.S. at 509.
Henderson , 260 F.3d at 1215-16 (parallel citations omitted).
Mr. Powell was originally to have been considered for pre-parole
supervised release in October 1998–thirteen months before he was to be
considered for parole. As a result, the elimination of the pre-parole supervised
release program “affect[ed] the timing of [his] initial parole consideration,” id. at
1216, and this is a critical factor for purposes of determining whether he has a
valid ex post facto claim, see Morales , 514 U.S. at 511.
Nonetheless, the controlling inquiry is whether Mr. Powell has shown that
the elimination of the pre-parole supervised release program created more than a
speculative risk that his prison term would be increased. See Henderson , 260
F.3d at 1216. We hold that he has failed to make such a showing. Most
importantly, among other requirements, the pre-1997 statute required that:
B. Upon an inmate becoming eligible for this program it shall
be the duty of the Pardon and Parole Board, with or without
application being made, to cause an examination to be made of the
criminal record of the inmate and to make inquiry into the conduct
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and the record of said inmate during his confinement in the custody
of the Department of Corrections .
C. Upon favorable recommendation by the Pardon and Parole
Board , notification shall be made to the Department of Corrections
that said inmate has been recommended to be placed in the
[Preparole Conditional Supervision Program].
Okla. Stat. Ann. tit. 57, § 365(B), (C) (1993) (emphasis added).
In light of these statutory requirements, the determination of whether a
prisoner would be entitled to a pre-parole release was wholly discretionary, and it
is therefore pure speculation to argue that the elimination of the program has
increased the term of Mr. Powell’s incarceration. The fact that Mr. Powell was
denied parole only thirteen months after he was to have been considered for pre-
parole supervised release bolsters our conclusion in this regard because Mr.
Powell has failed to demonstrate that there were any significant differences
between the discretionary criteria governing the two forms of release as applied to
his particular circumstances. Accordingly, Mr. Powell has not shown that the
amended statute has had the effect of prolonging his punishment, and his ex post
facto claim must fail. See Henderson , 260 F.3d at 1217.
The judgment of the district court is AFFIRMED. 4
4
On July 23, 2002, Mr. Powell filed a motion for leave to file a
supplemental reply brief. We deny the motion for leave.
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