Ritchie v. Tennessee Board of Probation and Parole

Filing 15

MEMORANDUM. A separate order will enter signed by District Judge Curtis L Collier on 1/25/12. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA

BARRY W. RITCHIE, TDOC No. 99117
v.
TENNESSEE BOARD OF PROBATION
and PAROLE

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NO. 1:10-CV-203
Chief Judge Collier

MEMORANDUM

Acting pro se, Barry W. Ritchie, a prisoner in the custody of the Tennessee Department
of Correction [hereinafter, TDOC], brings this civil rights action for declaratory and injunctive
relief under 42 U.S.C. § 1983, alleging his constitutional rights were violated during his state
parole proceedings, (Ct. File No. 2). The Defendant, the Tennessee Board of Probation and
Parole [“the Board”], has moved to dismiss the complaint, (Ct. File No. 10). Plaintiff opposes
the motion, (Ct. File No. 13). However, for the reasons which follow, Defendant’s motion will
be GRANTED and this case will be DISMISSED.
I.

Standards of Review
In ruling on a defendant's motion to dismiss, all well-pleaded factual allegations

contained in the complaint must be accepted as true, and all reasonable inferences must be
drawn in a plaintiff’s favor. Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 680 (6th
Cir. 2011) (citation omitted). Even so, the complaint must be sufficient "to state a claim to
relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007),
which simply means the factual content pled by a plaintiff must permit a court “to draw the

reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). Thus, unless the contentions
of facts in a complaint show a right to relief beyond a “speculative level,” the pleading will not
pass muster. Twombly, 550 U.S. at 555 (citation omitted). Moreover, a court must be mindful
of the rule which requires a pro se pleading to be generously construed and "held to less
stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
II.

Factual Background
According to the face of the complaint, Plaintiff was convicted in 1981 for aggravated

rape and armed robbery by a Hamilton County Criminal Court jury. He was sentenced, for
these respective offenses, to life and a concurrent ten years. On May 4, 2009, after serving
some twenty-eight years in prison, Plaintiff’s first parole release hearing was held. Using
statutory standards, rules, and regulations then in effect, which did not exist at the time of
Plaintiff’s criminal conduct, the Board denied him parole and scheduled his next hearing for
May of 2014. In rejecting Plaintiff’s request for parole, the Board relied on three criteria: (1)
the seriousness of Plaintiff’s offenses, (2) the substantial adverse effect his release would have
on prison discipline, and (3) continuing his correctional treatment, medical care, vocational or
other institutional training would enhance his ability to abide by the laws when released at a
later date.
Plaintiff pursued an appeal of the Board’s action through the state administrative
channels, alleging significant procedural errors. He was unsuccessful in obtaining relief and

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now brings this § 1983 action to vindicate the constitutional rights which were allegedly
violated during those parole proceedings.
III.

Discussion
Plaintiff maintains the Board’s application of parole laws and guidelines in effect at the

time of his hearing, rather than those in effect at the time of his crimes to determine whether to
grant him parole violated the Due Process and Ex Post Facto Clauses of the Constitution.
Plaintiff asserts that applying the new law to him during his parole proceedings violated due
process by dispossessing him of a liberty interest in parole he acquired under the old law.
Plaintiff also asserts the same conduct on the part of the Board likewise violated the ex post
facto provision of the Constitution, by changing his punishment and inflicting a greater
punishment on him than did the law then in existence when he committed the crime.
In its motion to dismiss, Defendant argues Plaintiff’s contentions concerning a
deprivation of due process do not state a claim for a constitutional violation and his allegations
involving ex post facto violations are groundless.
A.

Due Process Claims

The Fourteenth Amendment forbids state actors to “deprive any person of life, liberty
or property without due process of law [.]” U.S. Const. amend. XIV, § 1. A procedural due
process claim, such as the one alleged here,1 is composed of two elements. A plaintiff must
1

Plaintiff characterizes his due process claim as both procedural and substantive, but
the latter description is inapt, since substantive due process protections “have for the most part
been accorded to matters relating to marriage, family, procreation, and the right to bodily
integrity,” Valot v. Southeast Local School Dist. Bd. of Educ., 107 F.3d 1220, 1232-33 (6th
Cir.1997) (quoting Albright v. Oliver, 510 U.S. 266, 272 (1994)), and since a release on parole
is not in this category. See Chapman v. United States, 500 U.S. 453, 465 (1991) (“Every person
has a fundamental right to liberty . . . until [the Government] proves his guilt beyond a
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show he enjoyed a protected liberty interest and the process owed him before depriving him of
the interest was denied. See Board of Regents v. Roth, 408 U.S. 564, 569-570 (1972). The first
element is the one which is missing here.
A liberty interest arises either from the Due Process Clause in the Fifth or Fourteenth
Amendment of the Constitution or from the rights conferred by a state. The possibility of
obtaining parole is not a right secured by the U.S. Constitution. Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1 (1979). However, a state may create a liberty interest in parole through
means of its parole scheme, and as Plaintiff points out, in Mayes v. Trammell, 751 F.2d 175
(6th Cir. 1984), the United States Court of Appeals for the Sixth Circuit held Tennessee had so
done.
But Tennessee amended its parole regime in 1985 and discarded any entitlement to
parole which had inhered in the predecessor statute. This circuit reached that very conclusion
in Wright v. Trammell, 810 F.2d 589 (6th Cir.1987), by finding that, under the statute as
rewritten, Tennessee inmates no longer possessed a liberty interest in parole. Greenholtz and
Wright together establish that a prisoner has no protectible liberty interest in obtaining parole,
under the U.S. Constitution or Tennessee law. See Seagraves v. Tennessee Board of Probation
& Parole, 86 Fed. Appx. 45, 2003 WL 22976652, *2 (6th Cir. Dec. 8, 2003) (finding no liberty

reasonable doubt at a criminal trial . . . .”). Moreover, as discussed in other parts of this
opinion, any liberty interest in parole is provided by state law and only fundamental interests
arising from the Constitution enjoy substantive due process protections. Valot, 107 F.3d at
1233 (citing Regents of the Univ. Of Michigan v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J.,
concurring)).

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interest in parole in Tennessee) (citing to Greenholtz and Wright); Rowan v. Traughber, 48 Fed.
Appx. 489, 2002 WL 31085197 (6th Cir. 2002) (same).
As the cited cases and the above analysis show, Plaintiff has failed to demonstrate he had
a right to release on parole protected by the Constitution or state law. Bell v. Anderson, 301
Fed. Appx. 459, *461, 2008 WL 4935941, *2 (6th Cir. Nov. 18, 2008) (where parole is purely
discretionary under state law, “a convicted person has no legitimate claim of entitlement to
parole before the expiration of a valid sentence of imprisonment---and thus no liberty interest
in being paroled”); Toussaint v. McCarthy, 801 F.2d 1080, 1092 (9th Cir. 1986) ( “A
state-created liberty interest exists only as long as the statute or regulation creating it remains
effective[; i]f the state repeals the statute or eliminates the regulation, the liberty interest ceases
to exist.”), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
Put simply, plaintiff has no liberty interest in obtaining parole which demands due
process protection. Even if he did have, “[d]ue process in parole proceedings is satisfied as long
as the procedure used affords the inmate an opportunity to be heard, and, if parole is denied, the
Parole Board informs the inmate of the basis upon which it denied parole.” Swihart v.
Wilkinson, 2006 WL 3368823, at *3 (6th Cir. Nov. 21, 2006) (citing Greenholtz, supra).
Plaintiff had a parole hearing, he was told why parole was denied, and, accordingly, he fails to
state a procedural due process claim.
B.

Ex Post Facto Claims

The Constitution prohibits states from passing any ex post facto law. U.S. CONST. art.
I, § 10, cl. 1. An ex post facto law possesses two components: (1) "it must apply to events

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occurring before its enactment," and (2) "it must disadvantage the offender affected by it."
Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citation and quotation marks omitted). It is
important to remember that “[t]he existence of an ex post facto violation turns on whether an
individual was deprived of fair notice, ‘not [on] an individual's right to less punishment.’”
United States v. Kumar, 617 F.3d 612, 628 (2d Cir. 2010) (citing Weaver v. Graham, 450 U.S.
24, 30 (1981)). Parole eligibility is part of the law annexed to an offense when committed;
therefore legislative action which constricts parole eligibility by modifying requirements for
such eligibility may violate the ex post facto clause. Weaver, 450 U.S. at 32-33.
If, by its own terms, the challenged statute does not reveal a significant risk of enlarging
the punishment, the prisoner must show that, as applied to his own sentencing, the statute
created such a risk. Garner v. Jones, 529 U.S. 244, 255 (2000). In making this showing, a
prisoner cannot rely on mere speculation or supposition as to the increase in punishment, but
must produce actual evidence of the detrimental impact. Department of Corr. v. Morales, 514
U.S. 499, 509 (1995); Teague v. Cox, 2008 W.L. 2518699, *5 (E.D. Tenn. June 19, 2008)
(requiring a prisoner “to proffer actual evidence, rather than mere speculation, regarding the
retroactive applications’ disadvantageous effect”) (quoting Dyer v. Bowlen, 465 F.3d 280, 285
(6th Cir. 2006)).
“[N]ot every change in the law raises ex post facto concerns.” Snodgrass v. Robinson,
512 F.3d 999, 1002(8th Cir. 2008). The issue is not “on whether a legislative change produces
some ambiguous sort of disadvantage . . . but on whether any such change alters the definition
of criminal conduct or increases the penalty by which a crime is punishable.” Morales, 514

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U.S. at 506 n.3 (internal quotation marks omitted).” A court considering such a challenge must
compare the parole statutes in effect at the time of the commission of the covered crime with
the retrospectively-applied version of the statute, Foster v. Booker, 595 F.3d 353, 362 (6th Cir.
2010), to determine whether the practical impact of the change in the parole rule poses a
significant risk of enlarging the amount of time a prisoner actually serves. Michael v. Ghee,
498 F.3d 372, 383 (6th Cir. 2007) (citing Garner, 529 U.S. at 255).
Plaintiff points to several features distinguishing the old parole scheme from the new
one, which he claims operates to his disadvantage and runs counter to ex post facto principles.
The Court examines each feature in turn.
1. “Worthy-Candidate” Argument
Plaintiff first asserts, at the time he committed his crimes, the Board presumed each
inmate who was eligible for parole to be a worthy candidate and further presumed an inmate,
when first eligible for parole, would be granted parole. However, the presumption was repealed
and the new parole rules did not contain a worthy-candidate presumption. As Plaintiff sees it,
the Board violated ex post facto law during his hearing by failing to indulge in those
presumptions in determining his suitability for parole.
In Kaylor v. Bradley, 912 S.W.2d 728 (Tenn. Ct. App. 1995), the state court was asked
to decide whether the Parole Board’s refusal to engage in a worthy-candidate presumption, as
contained in parole rules and regulations at the time the convict committed a murder, amounted
to an ex post facto violation. The state court held the Board’s declination to afford the inmate
the benefit of the presumption that, when he first became eligible for parole, he would be granted

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parole was not an infringement of ex post facto law. Noting that an administrative regulation
cannot be inconsistent with a statute on the same subject, the state court found the presumption
in the parole regulation to be inconsistent with the statutory provision requiring the Board to
determine parole on an individualized case-by-case basis. The state court ultimately found the
presumption had been invalid even before it was repealed.

The invalidity of

the good-candidate presumption has been decided by state courts solely as a matter of Tennessee
law: that decision is binding on this Court. See e.g., Bush v. Palm Beach County Canvassing
Bd., 531 U.S. 70, 76 (2000) ( per curiam ) (“As a general rule, this Court defers to a state court's
interpretation of a state statute.”); International Longshoremen's Ass'n, AFL-CIO v. Davis, 476
U.S. 380, 387 (“[W]e have no authority to review state determinations of purely state law.”).

This Court now concludes Plaintiff cannot show the Board’s refusal to apply at his parole
hearing a good-candidate presumption, given its legal invalidity ab initio, created a sufficient
risk of “a longer period of incarceration than under the earlier rule.” Garner, 529 U.S. at 255.
This conclusion comports with prior rulings of this Court, see Teague, 2008 WL 2518699, at *5
(citing Berry v. Traughber, 48 F. App'x 483, 485 (6th Cir. 2002), and other federal courts in this
State. See White v. Tenn. Bd. of Prob. & Paroles, 2007 WL 2572196, *6 n. 1 (W.D.Tenn.
Aug.31, 2007)). No relief is warranted on Plaintiff's first ex post facto claim.
2. The “Seriousness of the Offense” Argument
In declining to grant Plaintiff parole, the Board considered the seriousness of his offenses,
to wit, aggravated rape and armed robbery. According to Plaintiff, at the time of his 1981

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offenses, the seriousness of the crime was not a factor to be considered in determining an
inmate’s suitability to go on parole. Plaintiff claims this specific provision inflicts a greater
punishment than the law annexed to the crimes when he committed them and, thus, the Board’s
application of this factor to deny him parole constitutes an ex post facto violation.
The Court compares the old and new parole provisions. Under the old parole rule, the
Board had discretion to deny parole if, by a majority vote, it determined a prisoner’s release on
parole “would depreciate the seriousness of the offense or would promote disrespect for the
law.” Mayes v. Trammell, 751 F.2d 175, 178 (6th Cir. 1984) (citing Tenn. Bd. Of Parole Rule
1100-1-1-.06(3)(b)), superceded by rule as stated in Wright v. Trammell, 810 F.2d 589 (6th Cir.
1987). The new parole statute removes that discretion by providing as follows: “[N]o inmate
convicted shall be granted parole if the board finds that . . . [t]he release from custody . . . would
depreciate the seriousness of the crime of which the defendant stands convicted or promote
disrespect for the law.” Tenn. Code. Ann. § 40-35-503(b)(2). Parole provisions which alter the
level of discretion, as do these, may rise to the magnitude of an ex post facto violation. See
United States v. Duane, 533 F.3d 441, 447 (6th Cir. 2008) (discussing the United States
Sentencing Guidelines) (citing Ghee, 498 F.3d at 382, and Garner, 529 U.S. at 253).
The Court now turns to the wording of the statute. Here, as in Garner, the framework
of the statute, specifically, the presence or absence of discretion, does not show a danger of
prolonging Plaintiff's confinement to a significant degree. The next step is to determine whether
the application of the seriousness provision creates a significant risk of extending Plaintiff’s

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imprisonment. It is Plaintiff ’s burden to “proffer actual evidence, rather than mere speculation,
regarding the retroactive application’s disadvantageous effect.” Dyer, 465 F.3d at 284.
Plaintiff argues the application of the “seriousness” factor left him with “no chance of
making parole because he was convicted of serious offenses.” Not only did the Board’s use of
this factor create a substantial risk of increasing his confinement, so Plaintiff insists, but the
seriousness factor lengthened his imprisonment in actual fact because the four Board members
who voted to deny Plaintiff parole in May of 2009 based their unfavorable decision on the
seriousness of his offenses.
Under the parole statute in effect in 1981, parole was granted “only if the board is of
opinion that there is reasonable probability that if such prisoner is released he will live and
remain at liberty without violating the law, and that his release is not incompatible with the
welfare of society.” Tenn. Code Ann. 40-3614 (1981). In parole decisions made under the cited
statute, “[t]he Board considered the depreciation of the seriousness of the offense as
incompatible with the welfare of society.” York v. Tennessee Bd. of Prob. & Parole, 2010 WL
3522330, at * 3 (M.D. Tenn. Aug. 12, 2010). There is no disagreement about the severity of
Plaintiff's crimes of aggravated rape and armed robbery. See e.g., Tomlinson v. State, 1999 WL
270383, at *1 (Tenn. Ct. App. May 5, 1999) ("[T]he offenses of robbery by use of a deadly
weapon [and] aggravated rape . . . were Class X Felonies under Tenn. Code Ann. § 39-1-701
et seq. (1982) [repealed].");2 Mosley v. Tennessee Board of Paroles, 1996 WL 631477, at *3

2

At the time of Plaintiff’s offenses, a Class x felony was assigned to the state’s highest
crime category.
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(Tenn. Ct. App., Nov. 1, 1996) ("[I]t would be belaboring the obvious to state that aggravated
robbery and burglary are both serious offenses.").
As can be seen on the face of the parole provisions at issue, the gravity of the offense(s)
of conviction was a component in the Board’s parole decision under both the old parole rules and
statutes (when petitioner committed his Class x felonies), as well as the new parole regime.
Thus, when the offenses occurred, Plaintiff had notice that the severity of his criminal acts would
affect his suitability for parole, and, therefore, the application of this factor does not violate ex
post facto laws. See Seagroves, 86 F.App’x 45 at *48 (no ex post facto violation where Board
applied 2002 state parole rules—not those in effect 1973, when crime was committed—given
the seriousness of Tennessee inmate’s crime); accord, Arnold v. Tennessee Bd. of Paroles, 956
S.W.2d 478, 483 (Tenn. 1997) (the denial of parole based on this factor is not a constitutional
violation); Williams v. Tennessee Bd. of Prob. & Parole, 2007 WL 3132935, * 3 (Tenn. Ct. App.
Oct. 26,2007) (no ex post facto violation).
3. Number of Parole Board Members Who Must Agree
Another infelicitous change, from Plaintiff’s perspective, is an increase of the number of
Board members who must agree with any decision to grant parole. Under the old rules, the
Board was composed of five members and a majority of three members was required to grant
parole, see Tenn. Code Ann.§ 40-3602(d) (Supp. 1981). Under the new rules, however, the
Board membership has been increased to seven and parole cannot be granted to an inmate, like
Plaintiff, who committed aggravated rape, without the concurrence of four Board members, see
Tenn. Code. Ann. § 40-28-103(a) and § 40-28-105(d)(4)(D).

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The one Board member increase (from three to four) required to concur in a decision to
grant parole is a necessary correlate to the two-person enlargement in the membership of the
Board itself (from five members to seven) and to the “majority” rule established in the
legislation. The old rule required a majority of Board members to agree on a grant of parole; the
new rule requires the same thing, see Tenn. Code Ann. § 40-28-105(d)(4)(D). The questioned
change alters only the number of decisionmakers and, clearly, such a change is procedural.
Changes which are purely procedural, generally, do not implicate ex post facto principles.
See Weaver, 450 U.S. 24 (no ex post facto problem where change is merely procedural and does
not increase the penalty, modify elements of offense, or alter ultimate facts necessary to establish
guilt); Dobbert v. Florida, 432 U.S. 282, 293 (1977) (ex post facto law not violated by every
legal change which may disadvantage a prisoner or which limits “the legislative control of . . .
modes of procedure” not affecting “matters of substance”), Ruhlman v. Brunsman,

F3d ,

, 2011 WL 6441210, at *3 (6th Cir. Dec. 23, 2011) (“Moreover, the Ex Post Facto clause does
not apply to procedural changes.”); but see Beazell v. Ohio, 269 U.S. 167, 171 (1925) (“Just
what alterations of procedure will be held to be of sufficient moment to transgress the [ex post
facto] prohibition cannot be embraced within a formula or stated in a general proposition. The
distinction is one of degree.”).
Moreover, expressed as a percentage, the old law required the concurrence of 60% of the
Board membership (3 of 5) to release an inmate on parole, whereas the new law requires
concurrence of only 57% of the Board (4 of 7). Indeed, the questioned change arguably may be
characterized as more lenient to an inmate seeking to be paroled. Since the new rule is

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ameliorative, it does not implicate ex post facto principles. Dobbert, 432 U.S. at 294 (“It is
axiomatic that for a law to be ex post facto it must be more onerous than the prior law.”).
The Ex Post Facto Clause does not countenance judicial micromanagement of state parole
schemes, “nor forbid[] any legislative change that has any conceivable risk of affecting a
prisoner's punishment, including such innocuous adjustments as changes to the membership of
the [Parole] Board.” Morales, 514 U.S. at 508; Dyer, 465 F.3d at 285-86 (citing Garner, 529
U.S. at 250 for its classification of Morales as a case concerned with a pure procedural
modification to parole laws). This Court, mindful of the warning in Morales, rejects the
proposition that this “minor (and perhaps inevitable) mechanical change,” is invalid under ex
post facto principles. Morales, 514 U.S. at 508.
4. The “Shall/May” Argument
Still another change allegedly disfavoring Plaintiff was the modification of statutory
language, i.e, the removal of the word “shall” from the old parole law and the addition of the
word “may” in the new law. The pertinent provision in the old statute reads:
Parole being a privilege and not a right, no prisoner shall be released on parole
merely as a reward for good conduct or efficient performance of the duties
assigned in prison, but only if the board is of the opinion that there is reasonable
probability that if such prisoner is released he will live and remain at liberty
without violating the law, and that his release is not incompatible with the welfare
of society. If the board shall so determine, such prisoner shall be allowed to go
upon parole.
(Ct. File No. 2, Compl. at 7 (citing Tenn. Code Ann. § 40-3614 (1981) (emphasis added by
Plaintiff)). The provision in the new statute is a mirror image of its predecessor, except for the
substitution of the word “may” for the word “shall,” (Id., Comp. at 8). The significance of the

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shall/may change, as Plaintiff sees it, lies in the fact that the word "shall" made parole
mandatory, if certain conditions were met, whereas the word, "may," used in the new rules,
confers discretion on the Board to grant parole, even if those same conditions are satisfied.
In Dyer v. Bowlen, a case cited by Plaintiff, the Sixth Circuit considered essentially the
same shall/may issue offered here.

Because the record was too sparse to permit the Sixth

Circuit to decide the issue, the case was remanded for the purpose of allowing the prisoner an
opportunity to present proof of a substantial risk of increased punishment inherent on the face
of the statute or in its practical implementation. Upon remand, the prisoner received a hearing
under the old parole standards, and his case was dismissed because he could not show facial
differences between the two statutes or any practical impact of the new parole standard on him.
Dyer v. Morrow, 2010 WL 199986, *4 (E.D. Tenn. Jan. 13, 2010).
Plaintiff emphasizes the word “shall” in last sentence of the old parole statute, while
ignoring the term “only if” in the next to the last sentence of the statute, (i.e., “[A] prisoner shall
be released on parole . . . only if the board is of the opinion that there is reasonable probability
that if such prisoner is released he will live and remain at liberty without violating the law, and
that his release is not incompatible with the welfare of society.”). Each word in a statute has
meaning and must be given effect. See Crump v. Lafler, 657 F.3d 393, 401 (6th Cir. 2011)
(“The starting point of statutory analysis, of course, is the text of the statute itself.”) (citing
McNeill v. United States,131 S.Ct. 2218, 2221 (2011)); see also Robinson v. Shell Oil Co., 519
U.S. 337, 340 (1997) (where the statutory language is clear and unambiguous, judicial inquiry
ends). The dictionary defines “only” as “*** A.1. Solely, merely, exclusively . . .” and “if”

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as “*** A.I. On condition that; given or granted that; in (the) case that; on the supposition
that.” OED Online (Dec. 2011), http://www.oed.com/viewdictionaryentry/Entry/131463, and
http://www.oed.com/view/Entry/91152?rskey=0eQULd&result=2&isAdvanced=false&print
(all Internet materials as visited Dec. 20, 2011, and available in the Clerk of Court's case file).
As the old parole statute clearly states, the Board was authorized to grant parole only if
it first concluded, to a reasonable probability, that: (1) a prisoner would conduct himself as a
law-abiding citizen if he were released and (2) his release was not incompatible with society’s
welfare. The statute, by its very terms, does not mandate Plaintiff’s release but, instead, places
a limit on the Board’s power to parole based on whether the abide-by-the-law and welfare-ofsociety provisions have been satisfied.
Moreover, Tennessee courts have found that, under Tenn. Code. Ann. § 40-28-301 (1982
Repl.), the sole law governing the release eligibility of Class x felons, such as Plaintiff, is
contained in the provision which “permits class X felons to be eligible for parole after serving
40% of the sentence actually imposed by the sentencing court” and “makes no other provisions
for Class X felons.” Ishaaq v. Tennessee Dep’t of Corr., No. M20000-1957-COA-R3-CV, 2001
WL 1660825, at *2 (Tenn. Ct. App. Dec. 28, 2001) (emphasis added). Therefore, even if the
Court assumes, but does not find, that parole was mandatory for some prisoners, it was never
mandatory for Plaintiff, considering that his offenses were Class x felonies.
To sum up, Plaintiff committed serious offenses; the Board, in making parole decisions
for other prisoners, using the old parole laws, deemed the release of offenders who engaged in
serious criminal conduct to be incompatible with the welfare of society; and the Board, under

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both old and new parole laws, lacks authority to parole a prisoner whose release is found to be
incompatible with the well-being of society. Plaintiff has presented no evidence to show that,
in his specific situation, retroactive application of the new parole law, in which “shall” has been
replaced with “may,” creates “a sufficient risk of increasing the measure of punishment attached
to the covered crimes". Morales, 514 U.S. at 509. The Court sees no ex post facto violation and
no merit to Plaintiff’s claim to the contrary.
IV.

Conclusion
For all these reasons, Defendant’s motion to dismiss, (Ct. File No. 10), will be

GRANTED, and this action will be DISMISSED.
A separate order will enter.
ENTER:

/s/
CURTIS L. COLLIER
CHIEF UNITED STATES DISTRICT JUDGE

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