In re Holmes
In re WENDELL HOLMES on Habeas Corpus
- Area
- criminal
- Panel
- Howard B. Wiener (author)
Analysis
The trial court granted habeas corpus relief, ordering the Board of Prison Terms to explain why Holmes was not released within one year of his parole suitability finding based on ex post facto principles. The Court of Appeal dismissed the appeal as moot but held that the trial court erred by failing to determine if the later regulations actually disadvantaged Holmes by increasing his total time of incarceration.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order partially granting habeas corpus petition requiring the Board to determine why Holmes should not be released within one year of his parole suitability finding or give specific reasons for a later date.“Lacking the factual predicate to support its conclusion, the court prejudicially erred in ordering the Board to hold an additional hearing to explain why Holmes was not released within one year of his parole suitability date.” | de novo | error | agree with court The appellate court correctly applied the two-part test for ex post facto violations from Weaver v. Graham, requiring both retrospective application and disadvantage. The trial court focused only on the time elapsed after the suitability finding, ignoring the total length of incarceration, which is the proper metric for determining if a prisoner was disadvantaged. Therefore, the trial court's order lacked the necessary factual predicate. |
Authorities
- relied: Weaver v. Graham (1981) 450 U.S. 24 — Ex post facto analysis requires that the retrospective application of a law must disadvantage the offender.
- relied: In re Seabock (1983) 140 Cal.App.3d 29 — Ex post facto principles apply only if the retrospective application of regulations disadvantages the offender.
- relied: In re Stanworth (1982) 33 Cal.3d 176 — Application of later regulations is unconstitutional if it results in a longer term of incarceration.
- relied: In re Powell (1988) 45 Cal.3d 894 — Discusses the general issue of Board discretion in parole decisions.
The appellate opinion: sound — The opinion correctly identifies that the trial court's analysis was flawed because it compared only the post-suitability period rather than the total incarceration period. It properly cites Weaver v. Graham to establish that 'disadvantage' is a necessary element of an ex post facto claim, which the trial court failed to find.
The superior court partially granted Wendell Holmes's habeas petition, finding that at the time of his 1975 murder the Board of Prison Terms by practice paroled most first degree life prisoners within one year of a suitability finding, and ordered the Board to release Holmes within one year of his suitability finding or give specific reasons why his release should be later. The Court of Appeal dismissed the Board's appeal as moot because Holmes had been released, but stated that the trial court misapplied ex post facto principles by comparing only post-suitability release dates rather than total periods of incarceration and so lacked the factual predicate of 'disadvantage' needed to support its order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order requiring the Board to release Holmes within one year of his parole suitability finding or state specific reasons for a later release date, based on ex post facto application of 1983 parole regulations“the trial court failed to make the essential inquiry of whether Holmes was disadvantaged by the ex post facto application of the 1983 regulation.” | de novo | error (law misapplied) | agree with court The opinion does not state a standard of review but treats the issue as one of law: whether the trial court's ex post facto premise was correct. Under Weaver v. Graham and Seabock, retrospective application alone is not enough; the change must disadvantage the offender, and the court reasonably held that disadvantage in the parole context is measured by total time in custody rather than the interval between a suitability finding and release. The trial court's finding addressed only the post-suitability interval, so the appellate court's conclusion that the order lacked a necessary factual predicate follows from the cited authority. The opinion's remark that the record shows Holmes did not actually serve longer than comparable prisoners sits uneasily with Weaver's instruction to look at the challenged provision rather than the particular individual's circumstances, but the court rested its holding alternatively on the trial court's incomplete inquiry, which is sound. |
Order requiring the Board to hold additional hearings to determine whether Holmes was placed in the proper category of first degree/life imprisonment murderers“The remainder of the court’s order requiring the Board to hold additional hearings to determine whether Holmes had been placed in the proper category of first degree/life imprisonment murderers is fact specific to Holmes.” | unclear | not reached | agree with court The court declined to address this portion of the order because the hearings had already been held, Holmes had been released, and In re Powell had already addressed the general scope of Board discretion. Declining to reach a moot, fact-specific issue is a defensible exercise of appellate restraint. |
Authorities
- relied: Weaver v. Graham (1981) 450 U.S. 24 — A law violates the ex post facto clause only if it is both retrospective and disadvantages the offender affected by it.
- relied: In re Seabock (1983) 140 Cal.App.3d 29 — Retrospective application of later parole regulations offends ex post facto principles only if it disadvantages the prisoner.
- relied: In re Stanworth (1982) 33 Cal.4th 176 — ISL prisoners are entitled to parole consideration under the ISL rules in effect at the time of their offense because the later DSL regulations prejudiced the prisoner by lengthening his term; distinguished here as a case where actual prejudice was shown.
- relied: In re Powell (1988) 45 Cal.3d 894 — The Supreme Court has fully discussed the scope of Board of Prison Terms discretion in parole decisions, making further discussion of the categorization issue unnecessary.
The appellate opinion: sound with gaps — The court correctly identified, with Weaver and Seabock, that ex post facto analysis requires a showing of disadvantage and sensibly measured disadvantage by total incarceration rather than the post-suitability interval the trial court isolated. It did not, however, grapple with Weaver's statement that the inquiry focuses on the law itself rather than the individual's actual circumstances, nor explain why it reached the merits after declaring the appeal moot and dismissing it.
How this analysis was made · dispute it
unusual dispositionOpinion — Wiener
Opinion
WIENER, Acting P. J.The Board of Prison Terms (Board) appeals the order partially granting Wendell Holmes’s petition for habeas corpus. Although we dismiss the appeal as moot, we discuss part of the order requiring the Board to determine why Holmes should not be released within one year of his parole suitability finding or to give specific reasons why his release date should be beyond that one-year time.1 We explain why we have concluded the court incorrectly applied ex post facto principles and accordingly erred in issuing the order.
I
Holmes was convicted in 1975 of first degree murder and sentenced in that year to life imprisonment. In 1983, the Board held two hearings *485concerning Holmes’s suitability for release, one under the determinate sentencing law (DSL) and one under the indeterminate sentencing law (ISL) parole board rules (PRB) promulgated in 1976 as required by In re Stan-worth (1982) 33 Cal.3d 176 [187 Cal.Rptr. 783, 654 P.2d 1311]. Both panels found Holmes suitable for parole. The DSL panel set a parole date of June 20, 1992; the ISL panel set a parole date of April 20, 1990. Both panels used regulations promulgated after the date of Holmes’s crime. Contending the use of such regulations was unlawful, Holmes sought habeas corpus relief in the superior court in 1988.
After appointing counsel and holding extensive hearings, the court found uncontradicted evidence established the “Parole Board had a rule by practice that the vast majority of first degree murder life prisoners were paroled within one year of being found parole suitable at the time Holmes’ crime was committed.” Based on this finding and the fact that all such prisoners had been released within 34 months of being found parole suitable, the court ruled Holmes was entitled to be released unless the Board could give specific reasons why his release date should be beyond that one-year time. The Board has appealed this order. Pending the appeal, we are told the court-ordered hearings have been held and Holmes has now been released.
Discussion
The court made its ruling on the assumption that ex post facto principles required the Board to treat Holmes in the same manner as it had treated other first degree murderers who were serving a life sentence at about the time Holmes committed his crime. The court’s premise is valid, however, only if the retrospective application of the regulations here disadvantaged Holmes. (In re Seabock (1983) 140 Cal.App.3d 29 [189 Cal.Rptr. 310].) Not only must the application of the regulations be retrospective, i.e., apply to events occurring before its enactment, but they must disadvantage the offender affected by them. (Weaver v. Graham (1981) 450 U.S. 24, 29 [67 L.Ed.2d 17, 23, 101 S.Ct. 960].) Thus the crucial question before the trial court was not merely whether the later parole regulations were applied retrospectively, but whether their application “disadvantaged” Holmes.2
There are undoubtedly many events which occur during a prisoner’s sentence which the prisoner thinks are important. For example here *486Holmes certainly thought the Board’s determination that he was suitable for parole was significant. Our analytical ex post facto perspective is necessarily different than that of Holmes. The date on which parole suitability is found is irrelevant for ex post facto purposes unless it impacts on the ultimate release date of the prisoner. To validly compare punishment between two separate groups of prisoners the entire period of incarceration must be compared, not merely a part of that period. The fact that different points in time during a prisoner’s incarceration may have been selected to determine whether the prisoner is suitable for parole does not necessarily mean that the prisoner who remains incarcerated for a longer period of time following a parole suitability finding will be treated more severely than the prisoner who was released after a shorter period. The respective sizes of two baskets holding apples and oranges can not be compared by merely counting the apples in each. One must also count the oranges. Similarly here both components of the prisoner’s sentence must be counted—the period before the finding of parole suitability as well as the period following that date.
The focus of the trial court’s analysis should have been on Holmes’s loss of freedom, i.e., the period commencing with his commitment to prison and ultimately his release on parole. There is no detriment to Holmes and those similarly situated first degree murderers if such persons remain incarcerated for essentially the same period of time as first degree murderers who had received the benefit of the Board’s earlier practice of release within one year of a finding of parole suitability.
In this case the record shows Holmes did not remain in prison any longer than the comparable group of prisoners released within one year of the Board’s finding of parole suitability. In any event, because the trial court here limited its finding to the disparate dates of release between Holmes and the group of prisoners to whom he was compared following the Board’s finding of parole suitability, the trial court failed to make the essential inquiry of whether Holmes was disadvantaged by the ex post facto application of the 1983 regulation. Lacking the factual predicate to support its conclusion, the court prejudicially erred in ordering the Board to hold an additional hearing to explain why Holmes was not released within one year of his parole suitability date.
*487Disposition
Appeal dismissed.
Todd, J., concurred.
Benke, J., concurred in the result.
A petition for a rehearing was denied October 19, 1989, and petitioner’s application for review by the Supreme Court was denied January 3, 1990.
The remainder of the court’s order requiring the Board to hold additional hearings to determine whether Holmes had been placed in the proper category of first degree/life imprisonment murderers is fact specific to Holmes. In light of the fact that these hearings have already been held and the California Supreme Court has fully discussed the general issue of Board discretion in In re Powell (1988) 45 Cal.3d 894 [248 Cal.Rptr. 431, 755 P.2d 881], there is no need for us to discuss this issue further.
In re Stanworth, supra, 33 Cal.3d 176, does not require a contrary result. There the application of the later regulation prejudiced the defendant by resulting in a longer term of incarceration.
Cites, in this corpus
- In Re Powell Crim. 24441 · 1988-06-27
- In Re Seabock Crim. 23094 · 1983-02-18
- In Re Stanworth Crim. 22522 · 1982-12-23