Boutwell v. Keating

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 23 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JOHN KENNETH BOUTWELL,

Plaintiff - Appellant,

v. No. 03-6278

FRANK KEATING, individually and in
his official capacity as Governor of the
State of Oklahoma; H. N. "SONNY"
SCOTT; LARRY FIELDS, individually
and in his former capacity as Director of
the Oklahoma Department of
Corrections; DREW EDMONDSON,
Attorney General of the State of
Oklahoma; JAMES SAFFLE,
individually and in his official capacity
as Director of the Oklahoma Department
of Corrections; STEVEN HARGETT,
individually and in his former capacity
as Warden of Joseph Harp Correctional
Center; SUSAN BUSSEY; CURRIE
BALLARD; PATRICK J. MORGAN;
FLINT BRECKINRIDGE; STEPHANIE
SHAPELLE, and their successors
individually and in their official
capacities as members of the Oklahoma
Pardon and Parole Board,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. 95-CV-1830-W)
Micheal Salem, Salem Law Offices, Norman, Oklahoma, for the Plaintiff-
Appellant.

J. Kevin Behrens, Assistant Attorney General (Charles K. Babb, Assistant
Attorney General, on the brief), Office of the Attorney General, Oklahoma City,
Oklahoma, for the Defendants-Appellees.

Before TACHA, Chief Circuit Judge, KELLY, and M C CONNELL, Circuit
Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant John Kenneth Boutwell was denied placement into

Oklahoma’s Pre-Parole Conditional Supervision (“PPCS”) program. Alleging that

this denial violated his constitutional rights, Mr. Boutwell seeks to challenge the

state of Oklahoma’s actions under 42 U.S.C. § 1983 or alternatively by

petitioning for a writ of habeas corpus under 28 U.S.C. § 2254. The District

Court dismissed Mr. Boutwell’s action, finding that his claims were not

cognizable under § 1983 and that his failure to allege facts sufficient to give rise

to a constitutional violation similarly required dismissing his habeas petition. On

appeal, Mr. Boutwell contends that the District Court erred in both regards. We

take jurisdiction under 28 U.S.C. §§ 1291 and 2253, AFFIRM the ruling that Mr.

Boutwell’s claims are not cognizable under § 1983, GRANT a certificate of

appealability, and AFFIRM the dismissal of Mr. Boutwell’s habeas petition.

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 I. BACKGROUND

Mr. Boutwell was convicted of first degree murder in 1978. His sentence

was later commuted from death to life with the possibility of parole. This appeal,

however, contests neither crime nor sentence. Instead, the appeal arises out of

Mr. Boutwell’s recommendation for, and subsequent denial of, PPCS placement.

PPCS was a program established under Oklahoma law. 1
Under that scheme,

after a prisoner met certain eligibility requirements, the Oklahoma Pardon and

Parole Board (“Parole Board”) determined whether to recommend to the

Department of Corrections (“DOC”) that the prisoner be placed into PPCS. Such

placement released a prisoner before the expiration of his sentence and allowed

him to maintain a residence and job. In January 1995, the Parole Board voted to

recommend Mr. Boutwell for entry into PPCS.

In response to this recommendation, Defendants Governor Frank Keating

and Attorney General Drew Edmondson wrote letters to the Director of the DOC,

1
Oklahoma’s PPCS program was abolished in 1997. See Okla. Stat. Ann.
tit. 57, § 365 (West 1997). We note, however, that Oklahoma currently has a
similar program, called “specialized parole,” in which inmates may be given
supervised release prior to their parole date. In light of the District Court’s
“considerable discretion” in fashioning equitable remedies, see Stichting
Mayflower Recreational Fonds v. Newpark Resources, Inc., 917 F.2d 1239, 1245
(10th Cir. 1990), and because we conclude that Mr. Boutwell is not entitled to the
relief he seeks, we assume without deciding that the District Court would have
discretion to fashion an appropriate remedy—such as release on “specialized
parole”—and therefore the abolition of PPCS does not moot this appeal.

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Defendant Larry Fields. These letters requested that Director Fields delay Mr.

Boutwell’s admission into PPCS until newly-appointed Parole Board members

could reconsider the case. Thereafter, Director Fields denied Mr. Boutwell’s

PPCS placement, citing the existence of “aggravating factors.” In March 1995,

the new Parole Board voted against recommending Mr. Boutwell for PPCS.

Mr. Boutwell originally initiated this action in November 1995. He brought

suit under 42 U.S.C. § 1983, alleging that his denial of PPCS placement violated

his constitutional rights, and sought placement in the PPCS program. The

complaint was later amended to state that if the District Court determined that the

action could not be maintained under § 1983, it should be construed as a habeas

petition and stayed pending exhaustion in state court. In May 1999, the District

Court adopted the Magistrate Judge’s findings.

In November 2001, Mr. Boutwell filed an application to reopen these

proceedings. He argued that he had exhausted all available state court remedies,

and therefore wished to file a second amended complaint. His second amended

complaint again sought relief under § 1983 and, in the alternative, a writ of

habeas corpus. The District Court reopened the matter and referred it back to the

Magistrate Judge. Before the Magistrate Judge, the Defendants moved to dismiss

the § 1983 claims under Fed. R. Civ. P. 12(b)(6) and argued that the complaint

should be construed as a habeas petition.

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 The Magistrate Judge issued a Report and Recommendation stating that

because Mr. Boutwell sought placement into PPCS his claims were not cognizable

under § 1983, but instead must be brought under habeas. The Magistrate Judge

recommended that the District Court dismiss the § 1983 claims and treat the

complaint as a habeas petition. The Magistrate Judge further recommended that,

because the factual allegations—even if true—did not state a constitutional

violation, Mr. Boutwell’s petition for habeas corpus should be summarily

dismissed under Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts (“Section 2254 Rules”). The District Court issued an Order

adopting the Magistrate Judge’s report, thereby dismissing Mr. Boutwell’s § 1983

claims and his habeas petition. Mr. Boutwell timely appeals this decision.

On appeal, Mr. Boutwell presents two arguments. First, he argues that the

District Court erred in determining that his suit was not cognizable under § 1983.

Second, he argues that if his claims are properly construed as a habeas petition,

we should grant a certificate of appealability and consider the merits of his

claims. We consider these two arguments below.

II. SECTION 1983 RELIEF

A. Standard of Review

The District Court dismissed Mr. Boutwell’s § 1983 claims for failing to

state a claim on which relief can be granted. We review a dismissal under Rule

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12(b)(6) de novo and apply the same standard as the District Court. County of

Santa Fe v. Public Serv. Co. of New Mexico , 311 F.3d 1031, 1034 (10th Cir.

2002).

B. Availability of Remedy Under § 1983

Section 1983 permits suits against persons who, acting under the color of

state law, deprive a United States citizen of his constitutional rights. See 42

U.S.C. § 1983. While Mr. Boutwell’s claims fit this description, the Supreme

Court has recognized that, despite the literal applicability of § 1983, some claims

brought by prisoners are not cognizable under this statute. See Heck v.

Humphrey , 512 U.S. 477, 481–82 (1994). Instead, for some claims that fall

within the broad language of § 1983, a writ of habeas corpus is the exclusive

federal remedy. Id.

In Preiser v. Rodriguez , 411 U.S. 475, 499 (1973), the Supreme Court

recognized that its earlier decisions “establish that a § 1983 action is a proper

remedy for a state prisoner who is making a constitutional challenge to the

conditions of his prison life . . . .” The Court, however, also noted that “when a

state prisoner is challenging the very fact or duration of his physical

imprisonment, and the relief he seeks is a determination that he is entitled to

immediate release or a speedier release from that imprisonment, his sole federal

remedy is a writ of habeas corpus.” Id. at 500.

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 As such, Preiser announced the Supreme Court’s approach to determining

whether a state prisoner can bring a claim under § 1983: A prisoner may use

§ 1983 to challenge the conditions of his confinement, but habeas corpus is the

only avenue for a challenge to the fact or duration of confinement, at least when

the remedy requested would result in the prisoner’s immediate or speedier release

from that confinement. Therefore, to determine whether Mr. Boutwell may

proceed under § 1983, we must first decide whether Mr. Boutwell’s

claim—namely, that he was unconstitutionally denied placement in PPCS—is

properly viewed as challenging the conditions of his confinement or the fact or

duration of his confinement.

Because a prisoner’s claim necessarily challenges the fact or duration of

confinement when the remedy sought is the immediate or speedier release from

confinement, such a claim must be brought under habeas. But habeas is not

limited to those claims that, if successful, would lead to the prisoner’s

unconditional release from confinement. In a challenge to a parole denial, we

recently held that an inmate’s “request for an injunction that would effect his

immediate or imminent release on parole . . . [is] not cognizable under § 1983

and must instead be brought under [habeas].” Reed v. McKune , 298 F.3d 946, 953

(10th Cir. 2002) (emphasis added). Therefore, if Mr. Boutwell’s request for

immediate placement into Oklahoma’s pre-parole program is akin to a request to

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be released on parole, Mr. Boutwell must proceed under habeas rather than

§ 1983.

In light of Reed , Mr. Boutwell argues that PPCS placement is

distinguishable from parole. He contends that PPCS participants are still serving

their sentences while parolees have their sentences suspended. He characterizes

his suit as “bring[ing] a challenge to the conditions of [his] confinement, i.e. ,

whether they should be in a medium security facility or under the minimal

security provisions of PPCS.” Because a challenge to a transfer from one security

level to another or from one prison to another is cognizable under § 1983, treating

PPCS as minimum-security confinement rather than release on parole would

permit Mr. Boutwell’s suit to proceed under § 1983. See Meachum v. Fano , 427

U.S. 215, 218, 222–23 (1976) (permitting a § 1983 suit by prisoners challenging a

transfer from a prison with both medium- and maximum-security facilities to an

entirely maximum-security prison with less favorable living conditions). We

disagree with Mr. Boutwell’s characterization of his claim.

An inmate’s denial of PPCS placement is analogous to a denial of parole

for purposes of determining whether the inmate may file suit under § 1983 or

must petition for a writ of habeas corpus. Our conclusion is supported by Harper

v. Young , 64 F.3d 563 (10th Cir. 1995), aff’d , 520 U.S. 143 (1997), in which we

analyzed whether PPCS should be treated as parole or minimum-security

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confinement in the context of determining whether PPCS placement creates a

liberty interest under the Fourteenth Amendment’s Due Process Clause. 64 F.3d

at 564.

In Harper , we noted that due process protections apply to the revocation of

parole. Id. (citing Morrissey v. Brewer , 408 U.S. 471 (1972)). Attempting to

distinguish pre-parole from parole, the State of Oklahoma argued that PPCS

placement should be likened to a transfer to minimum security. See id. at 565

(“The State contends that, similarities to parole notwithstanding, placement in

[PPCS] does not effect release from the custody of the [DOC] and is, therefore,

merely a change in the degree or situs of an inmate’s confinement.”); 520 U.S. at

148 (noting that the petitioners argue that removal from PPCS should be

controlled by Meachum because it was a transfer to a higher degree of

confinement). We disagreed with the State’s position, however, and held that

PPCS placement creates a liberty interest in much the same way as release on

parole. See Harper , 64 F.3d at 566–67 (holding that “a prisoner release program

which permits a convict to exist, conditionally, in society on a full-time basis

more closely resembles parole or probation than even the more permissive forms

of institutional confinement”); Harper , 520 U.S. at 145 (holding that PPCS

“differed from parole in name alone”).

Of course, our decision to analogize PPCS placement to parole in one

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setting does not necessarily imply that we must do so in a different context. The

liberty interest inquiry undertaken in Harper , after all, required us to interpret the

Fourteenth Amendment’s Due Process Clause, whereas the issue before

us—determining the scope of § 1983—involves a matter of statutory

interpretation. Despite this difference, we conclude that the basis for analogizing

PPCS to parole in the liberty-interest context is equally persuasive with respect to

determining whether Mr. Boutwell’s claim is cognizable under § 1983.

In Harper , we reasoned that PPCS placement, like release on parole,

creates a liberty interest because it releases a prisoner from incarceration and

because such release does more than “simply alter the degree of confinement.”

Harper , 64 F.3d at 566. Indeed, we emphasized that placement in PPCS

constitutes “a fundamental change” to the confinement itself. Id. Affirming our

decision, the Supreme Court took a similar stance, equating parole and preparole

and noting that a parolee has a liberty interest in remaining on parole because life

as a parolee “is very different from that of confinement in a prison.” Harper , 520

U.S. at 147–48 (quoting Morrissey v. Brewer , 408 U.S. 471, 482 (1972)). Both

this Court and the Supreme Court found a liberty interest in PPCS placement

because it, like release on parole, differs significantly from being confined within

the walls of prison. That is to say, PPCS placement secures the type of release

from physical custody that cannot be characterized as a slight variance in the

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circumstances of confinement.

This rationale similarly applies to the question we now face. We conclude,

then, that the fundamental change that results from PPCS placement is not only

sufficient to create a liberty interest but also makes a request for placement in

PPCS a challenge to the fact, rather than to a condition, of an inmate’s

confinement. Therefore, Mr. Boutwell must proceed under habeas—not under

§ 1983.

III. HABEAS CORPUS RELIEF

After determining that Mr. Boutwell’s claims were not cognizable under

§ 1983, the District Court construed his complaint as a habeas petition. The

District Court then summarily dismissed his petition pursuant to Section 2254

Rule 4. 2 On appeal, Mr. Boutwell again argues that if his claims are not

cognizable under § 1983, we should similarly construe his suit as a habeas

petition. Because his claims cannot be brought under § 1983, we now consider

his claim as a petition for a writ of habeas corpus.

2
Because Mr. Boutwell challenges the execution of his sentence, he seeks
habeas relief under 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862, 865
(10th Cir. 2000) (noting that an “action is properly brought under § 2254 as a
challenge to the validity of [the prisoner’s] conviction and sentence or pursuant to
§ 2241 as an attack on the execution of his sentence.”). The District Court,
however, acted within its discretion by applying the Section 2254 Rules to this
§ 2241 petition. See Section 2254 Rule 1(b) (“In applications for habeas corpus
in cases not covered by [§ 2254], these rules may be applied at the discretion of
the United States district court.”).

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 Before considering the merits of his habeas petition, however, we must

determine whether to grant a certificate of appealability (“COA”). A COA can

only issue “if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this standard, a petitioner

must demonstrate “that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003). Because the District Court summarily

dismissed Mr. Boutwell’s habeas petition under Section 2254 Rule 4, we will

grant a COA only if reasonable jurists could disagree with the District Court’s

application of Rule 4 to the claims in this petition.

Rule 4 requires a district court to dismiss a habeas petition “[i]f it plainly

appears from the face of the petition and any exhibits annexed to it that the

petitioner is not entitled to relief.” Section 2254 Rule 4. The District Court

determined that Mr. Boutwell’s petition should be dismissed under Rule 4 because

the facts alleged in the petition even if true fail to establish a constitutional

violation.

We conclude that the District Court properly interpreted Section 2254 Rule

4 to require dismissing a habeas petition that fails to allege facts that state a

constitutional violation. See Davis v. Franzen , 671 F.2d 1056, 1057 (7th Cir.

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1982) (holding that summary dismissal under Rule 4 is appropriate “unless the

factual allegations in the petition, if true, would show that the petitioner is being

held in custody in violation of the Constitution or laws of the United States.”).

Because we conclude that reasonable jurists could disagree with the District

Court’s application of Section 2254 Rule 4, we grant Mr. Boutwell’s request for a

certificate of appealability and now consider the merits of his habeas claims.

Because Mr. Boutwell’s habeas claims were dismissed pursuant to Section

2254 Rule 4, we review his claims de novo. See Martin v. Overton, 391 F.3d 710,

712 (6th Cir. 2004); O’Bremski v. Maass , 915 F.2d 418, 420 (9th Cir. 1990)). We

consider both his due process and ex post facto claims below.

A. Due Process Violation

Mr. Boutwell argues that he was denied placement into the PPCS program

without due process in violation of the Fourteenth Amendment. In order to

establish a due process violation, Mr. Boutwell must first demonstrate that he has

been deprived of a constitutionally-protected liberty or property interest. See Bd.

of Regents of State Colls. v. Roth , 408 U.S. 564, 569 (1972) (“The requirements

of procedural due process apply only to the deprivation of interests encompassed

by the Fourteenth Amendment’s protection of liberty and property.”). Mr.

Boutwell does not argue that he has a property interest in PPCS placement. As

such, we focus our analysis on Mr. Boutwell’s liberty interests.

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 A PPCS participant has a liberty interest in any situation in which a parolee

would have a liberty interest. Cf. Harper , 520 U.S. at 147–49 (recognizing a

liberty interest in PPCS participation by comparing PPCS to a prisoner’s liberty

interest in parole). Parolees have two sources of liberty interests: A liberty

interest may “inhere in the Due Process Clause” or it may be “created . . . by state

law.” See Harper , 64 F.3d at 564. The first step in analyzing Mr. Boutwell’s due

process argument, therefore, is to determine whether the liberty interest he claims

is inherent in the Due Process Clause or created by state law.

1. Liberty Interests Inherent in the Due Process Clause

Mr. Boutwell argues that once he was recommended for PPCS placement,

he possessed a constitutional liberty interest in the expectancy of PPCS

placement. It is true that a PPCS participant has a liberty interest inherent in the

Due Process Clause in continued participation in the program. Harper , 64 F.3d at

565–66. In Harper , however, the PPCS participant was released from

confinement, 520 U.S. at 146, whereas Mr. Boutwell never was an actual

participant in PPCS. The question whether a petitioner has a liberty interest

arising from the Due Process Clause itself, therefore, turns on whether a liberty

interest is created when the petitioner is recommended for PPCS or when he is

actually released from confinement.

In Harper , we determined the point at which the constitutionally-created

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liberty interest arose. We recognized “the dispositive characteristic that marks

that point at which the Due Process Clause itself implies a liberty interest: it is

the fact of release from incarceration.” 64 F.3d at 566. In choosing this event,

we reasoned:

The liberty associated with life outside the walls of a penal facility
dwarfs that available to an inmate. . . . The passage outside the walls
of a prison does not simply alter the degree of confinement; rather, it
works a fundamental change in the kind of confinement, a
transformation that signals the existence of an inherent liberty
interest.

Id.

Our conclusion is supported by the Supreme Court’s decision in Harper .

The Supreme Court based its decision on the fact that while participating in

PPCS, Mr. Harper “kept his own residence; he sought, obtained, and maintained a

job; and he lived a life generally free of the incidents of imprisonment.” Harper ,

520 U.S. at 148. Because these factors can only occur once the inmate has been

released from incarceration, the Supreme Court’s reasoning is consistent with our

determination that an inherent liberty interest arises upon release from prison.

We conclude, then, that a liberty interest inherent in the Due Process

Clause arises upon an inmate’s release from confinement. Because Mr.

Boutwell’s petition does not allege that he was released from confinement under

PPCS—in fact, it concedes that he was not released—he has failed to allege facts

necessary to create an inherent constitutional liberty interest.

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 2. Liberty Interests Created by State Law

Mr. Boutwell also argues that once he was recommended for PPCS

placement, Oklahoma law created a liberty interest based on his expectancy of

release under PPCS. The Supreme Court has held that a state’s parole statute can

create a liberty interest in the expectancy of parole. See Bd. of Pardons v. Allen ,

482 U.S. 369, 381 (1987); Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex , 442 U.S. 1, 12 (1979). Specifically, a state parole statute

can create a liberty interest when the statute’s language and structure sufficiently

limits the discretion of a parole board. See Allen , 482 U.S. at 377–78

(determining that a parole statute created a liberty interest in the expectancy of

parole by its use of mandatory language); Greenholtz , 442 U.S. at 11–12 (same);

cf. Jago v. Van Curen , 454 U.S. 14, 20–21 (1981) (holding that no liberty interest

in the expectancy of parole is created under a statute in which the parole decision

is discretionary).

In Greenholtz , for example, the parole statute stated that an inmate “shall”

be paroled “unless” one of four exceptions applied. 442 U.S. at 11. Similarly, in

Allen , the statute stated that “[s]ubject to the following restrictions, the board

shall release on parole” any eligible inmate. 482 U.S. at 376. Under both

statutes, then, the use of mandatory language severely limited the discretion of the

parole board to deny parole. In each case, the board was limited to determining

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whether an exception applied, and if none applied, it was required to grant parole.

This lack of parole board discretion was held to be sufficient to create a liberty

interest in the expectancy of parole. See Allen , 482 U.S. at 378; Greenholtz , 442

U.S. at 12.

In Sandin v. Conner, 515 U.S. 472, 481 (1995), the Supreme Court stated

that “the search for a negative implication from mandatory language in prisoner

regulations has strayed from the real concerns undergirding the liberty protected

by the Due Process Clause.” The Court held that state-created liberty “interests

will be generally limited to freedom from restraint which . . . imposes atypical

and significant hardship on the inmate in relation to the ordinary incidents of

prison life.” Id.

The Sandin Court noted that this change in methodology did not require it

to overrule any of its previous decisions. Id. at 483 n.5. This decision, however,

did not resolve whether a parole statute that meets the Greenholtz and Allen test

for creating a liberty interest necessarily satisfies Sandin or whether Sandin

imposes an additional obligation. Because we conclude that Oklahoma’s PPCS

statute does not contain the mandatory language necessary to create a liberty

interest under Greenholtz and Allen, we do not reach this question.

With this in mind, we now turn to Oklahoma’s PPCS statute. The Oklahoma

statute reads:

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 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 this program. Prior to
the placement of an inmate on Preparole Conditional Supervision, the
Department shall provide written notification to the . . . county in
which any person on Preparole Conditional Supervision is to be
placed.

Okla. Stat. tit. 57, § 365(C), (D) (1995).

We interpret this statute to make PPCS placement a two-step process. The

Parole Board must first recommend an inmate for placement into PPCS, and the

DOC may then place the inmate. Until both steps are completed, an inmate has

not been accepted into PPCS. Furthermore, the statute does not place any

limitations on the factors that the Parole Board can consider in making its

decision whether to recommend an inmate or on the DOC’s decision to place the

inmate in PPCS.

Oklahoma’s PPCS statute is therefore easily distinguished from the statutes

in both Greenholtz and Allen . In these cases, the Supreme Court held that an

expectancy of parole was created by the mandatory language contained in the

statutes: Both statutes stated that an inmate “shall” be paroled unless certain

conditions were met. Greenholtz , 442 U.S. at 11–12; Allen , 482 U.S. 377–78.

Oklahoma’s PPCS statute is not similarly worded. PPCS placement is

conditioned upon the recommendation by the Parole Board, and while the statute

places restraints on eligibility for PPCS placement, it in no way limits the Parole

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Board’s discretion as to which of the eligible inmates should be recommended.

This statute therefore fails to create a liberty interest in the expectancy of PPCS

placement.

Mr. Boutwell concedes that the PPCS statute grants discretion to the Parole

Board. He argues, however, that once the Parole Board recommends a prisoner

for placement into PPCS, it has exercised its discretion. Once this discretionary

step has been taken, Mr. Boutwell argues, the rest of the PPCS statutory scheme

allows for no discretion and therefore resembles the statutes at issue in

Greenholtz and Allen . In other words, Mr. Boutwell argues that once the Parole

Board recommended him for PPCS placement, the DOC had no discretion to deny

that placement, and a liberty interest was therefore created. We disagree.

The statute states that the Parole Board only gives a “recommendation” to

the DOC regarding an inmate’s placement into PPCS. The term “recommend”

loses its plain meaning if we do not interpret it to grant the DOC the discretion to

accept it or reject it. The Parole Board’s vote cannot be a “recommendation” and

also be the final decision on PPCS placement.

Mr. Boutwell argues that we should not interpret “recommendation”

literally. He argues that a literal interpretation would allow the DOC to assume

the Governor’s role in the parole process. Oklahoma law, however, creates

separate “recommendation” processes for parole and PPCS. A parole

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“recommendation” is made by the Parole Board to the governor. See Okla. Const.

art. VI, § 10 (establishing the Parole Board and empowering it to “make its

recommendations to the Governor of all deemed worthy of clemency”). A PPCS

“recommendation” is made by the Parole Board with notification given to the

DOC. Okla. Stat. tit. 57, § 365(C) (1995). Oklahoma law therefore creates no

role for the DOC with respect to a parole recommendation nor for the governor

with respect to a PPCS recommendation. Consequently, both provisions can be

given their plain meaning without interfering with either the parole or PPCS

recommendation process.

Finally, Mr. Boutwell argues that the DOC lacks discretion because the

statute does not expressly grant it discretion. Although it is true that the statute

does not expressly grant discretion, the PPCS statute also does not place any

limitations on the DOC’s ability to deny PPCS placement. The statute simply

does not address the DOC’s placement decision. In both Greenholtz and Allen ,

however, the lack of discretion is established by the presence of mandatory

language—not inferred from statutory silence. Furthermore, as we noted above,

the term “recommendation” would lose its plain meaning if we adopted Mr.

Boutwell’s construction.

Although the PPCS statute does not limit the DOC’s discretion, its

discretion is limited by the DOC Policy and Operations Manual (“Operations

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Manual”). The Operations Manual provides guidance for the DOC’s placement

decision by establishing the process under which an inmate recommended by the

Parole Board gets placed into PPCS. The manual requires the inmate to submit an

“application packet” to the DOC within ten days of the Parole Board’s

recommendation. It also contains a section entitled “Placement Criteria.” This

section includes five factors, including whether the inmate has been medically

cleared or has any detainers for felony prosecutions, which must be considered

prior to PPCS placement. It also states that “[k]nowledge of aggravating

circumstances may be considered in placement decisions.”

Although the DOC Operation and Policy Manual narrows the DOC’s

discretion, it does not completely limit it. Unlike the statutes in Greenholtz and

Allen , which required an inmate’s release unless a specified exception is satisfied,

the Operations Manual is not similarly structured. Instead, the Operations Manual

contains certain requirements that must be met before an inmate may be placed

into PPCS. No requirement, however, can be construed as a guideline that, if met

by the inmate, requires the DOC to place him into PPCS. The Operations Manual

therefore assists the DOC in determining whether to place an inmate on PPCS, but

it does not sufficiently restrict the DOC’s discretion such that a liberty interest is

created under Greenholtz and Allen .

We therefore conclude that Mr. Boutwell does not possess a liberty interest

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created by state law. Because Mr. Boutwell has failed to allege facts that are

sufficient to create a liberty interest inherent in the Due Process Clause or created

by state law, he cannot establish a due process violation. 3
We therefore affirm the

District Court’s summary dismissal of this claim.

B. Ex Post Facto Violation

Next, Mr. Boutwell argues that his continued confinement violates the Ex

Post Facto Clause because his denial of PPCS placement was based on an

impermissibly retroactive change in executive policy. The Ex Post Facto Clause

prohibits states from passing laws that retroactively alter the definition of crimes

or increase the punishment for criminal acts. See U.S. Const. art. I, § 10; Powell

v. Ray , 301 F.3d 1200, 1203 (10th Cir. 2002). While this clause generally applies

to legislative changes, we have extended its prohibitions to agency regulations

that are legislative in nature. See Smith v. Scott , 223 F.3d 1191, 1193–94 (10th

Cir. 2000) (holding that Ex Post Facto Clause applies to agency rule because a

legislative body “cannot escape the Constitutional constraints on its power by

delegating its lawmaking function to an agency.”) (quotations and citation

omitted). Some courts have even suggested that an executive order may violate

the Ex Post Facto Clause. See, e.g. , Lee v. Governor of New York , 87 F.3d 55,

3
We do not need to consider the arguments made on appeal concerning the
sufficiency of the process given to Mr. Boutwell because we have not recognized
any liberty interest of which he has been deprived.

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59–60 (2d Cir. 1996); United States v. Arch Trading Co. , 987 F.2d 1087, 1095

(4th Cir. 1993). In any event, it is clear that courts only extend the Ex Post Facto

Clause to government actions that have the force of law.

Mr. Boutwell claims that Governor Keating’s statement that neither Mr.

Boutwell nor any other violent felon will be released on parole violates the Ex

Post Facto Clause. This statement, however, was not an executive order and did

not otherwise have the force of law. Instead, Mr. Boutwell’s petition cites

newspaper articles to establish Governor Keating’s views on early release of

convicted murderers. Because his ex post facto claim fails to mention any change

in legislation or regulation, but instead rests solely on statements made to the

press, Mr. Boutwell has failed to allege facts that could establish a violation of

the Ex Post Facto Clause. As a result, we affirm the District Court’s summary

dismissal of this claim.

IV. CONCLUSION

We conclude that Mr. Boutwell’s claims are not cognizable under § 1983

and AFFIRM this part of the judgment. We therefore interpret Mr. Boutwell’s

complaint as a petition for a writ of habeas corpus, GRANT issuance of a COA,

and AFFIRM the District Court’s dismissal of his habeas petition.

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