Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 84 C 50 - S. Hugh Dillin, Judge.
Before BAUER, CUDAHY, Circuit Judge, and FAIRCHILD, Senior Judge.
Louis Inglese, a federal prisoner, claims in a petition for a writ of habeas corpus that the application to him of parole guidelines promulgated subsequent to the commission of his crime violates the ex post facto clauses of the United States Constitution. The district court in the Southern District of Indiana denied the petition, holding that parole guidelines are not "laws" within the meaning of the ex post facto clause and that therefore the prisoner's parole eligibility could be assessed under the 1983 Parole Guidelines, rather than the 1973 Guidelines whose use the prisoner urges. We affirm.
In May 1974, Inglese was convicted of participation in a four year conspiracy to import illegally into the United States and distribute over three kilograms of heroin and approximately one kilogram of 100% pure cocaine. Inglese also was convicted of bribery of under cover narcotics officers, failure to file income tax returns, income tax evasion, and attempts to obstruct justice. In May 1974, Inglese was sentenced to an aggregate term of 56 and one-half year. Inglese presently is incarcerated in the United States Penitentiary in Terre Haute, Indiana.
The petitioner was afforded an initial parole hearing pursuant to 28 C.F.R. § 2.12 on June 3, 1983, after serving 118 months of his sentence. On June 10, 1983, the parole hearing examiners referred the case to the regional Parole Commissioner for original jurisdiction because the petitioner's sentence exceeded 45 years, and recommended that the petitioner be given presumptive parole after service of 150 months. On July 14, 1983 the Regional Parole Commission ordered that the petitioner's incarceration be continued to a presumptive parole release after service of 198 months. The Commission gave the following statement of its reasons for its decision:
Your offense behavior has been rated as Category Eight severity because it involved the distribution of more than three kilograms of 100% pure cocaine in which you had a managerial/proprietary interest; you attempted to bribe a public official; and you violated Internal Revenue laws. Your salient factor score is 4 (see attached sheet). You have been in custody a total of 119 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 150 plus months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision more than 48 months above the minimum is not found warranted.
In calculating Inglese's presumptive parole release date, the Parole Commission utilized the 1983 Guidelines for parole release, 28 C.F.R. § 2.20 (1983), rather than the 1973 Guidelines applicable at the time of Inglese's conviction.
Inglese filed an administrative appeal of the initial parole hearing decision pursuant to 28 C.F.R. § 2.27. The National Appeals Board (Full Commission) affirmed the Regional Commission's decision in petitioner's case on October 18, 1983. Inglese filed for a writ of habeas corpus on February 15, 1984 in the District Court for the Southern District of Indiana. After cross motions for summary judgment, the district court dismissed Inglese's petition and granted the Commission's motion for summary judgment. On October 25, 1984, Inglese appealed.
The ex post facto prohibition of the U.S. Constitution, Art. I, § 9, cl. 3, and Art. I, § 10, cl. 1, forbids Congress and the states to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867)). The ex post facto clauses serve two principal purposes: they curtail legislative abuses and support a right to fair notice of criminal laws and their punishments. Weaver, 450 U.S. at 29; Warren v. United States Parole Commission, 212 U.S. App. D.C. 137, 659 F.2d 183, 187-88 (D.C. Cir. 1981), cert. denied, 455 U.S. 950, 102 S. Ct. 1454, 71 L. Ed. 2d 665 (1982). In Weaver the Court explained that "two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective . . . and it must disadvantage the offender affected by it." Weaver, 450 U.S. at 29. What is left undefined by the Court, however, is what constitutes a "law" within the meaning of "ex post facto law."
The Third Circuit had held that "within the criminal sphere, the Supreme Court opted for a broad reading of the proscriptions." Geraghty v. United States Parole Commission, 579 F.2d 238, 264 (3d Cir. 1978), vacated, 445 U.S. 388, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980) (ex post facto claims not reached). Following Geraghty, this circuit has held that regulations adopted by an agency pursuant to rule making authority delegated to it by Congress can "have the force and effect of law" in the context of the ex post facto prohibitions. Rodriguez v. United States Parole States Parole Commission, 594 F.2d 170, 173 (7th Cir. 1979).
The Supreme Court has recognized some limitations, however, on the reach of the ex post facto prohibition. The provision was not intended "to limit the legislative control of remedies and modes of procedure which do not affect matters of substance . . . [but] . . . to secure substantial personal rights." Dobbert v. Florida, 432 U.S. 282, 293, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977). In this framework of case law, then, we look to see whether the application ...