     Case: 11-30919    Document: 00512248534     Page: 1   Date Filed: 05/21/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                     FILED
                                                                    May 21, 2013

                                  No. 11-30919                      Lyle W. Cayce
                                                                         Clerk

ROBERT HOWARD,

                                            Plaintiff - Appellant
v.

LARRY CLARK, Chairman of the Louisiana Board of Pardons; EUGENE
“POP” HATAWAY, Member of the Louisiana Board of Pardons; CLEMENT
LAFLEUR, Member of the Louisiana Board of Pardons; KENNETH A.
JONES, Member of the Louisiana Board of Pardons; HENRY W. POWELL,
Member of the Louisiana Board of Pardons; BOBBY JINDAL, Governor of the
State of Louisiana,

                                            Defendants - Appellees



                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before JOLLY, GARZA, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Robert Howard (“Howard”) is currently serving life sentences in Louisiana.
He has repeatedly sought to have his sentences commuted in order to become
eligible for parole, commutation being the first step in becoming eligible for
consideration for parole. After he was first convicted, Louisiana altered its
commutation process. This appeal addresses Howard’s complaint that the
application of the new process to him violates the ex post facto provisions of the
United States and Louisiana Constitutions in two ways: (1) by vesting the Board
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with new authority, in certain circumstances, to refuse to grant a hearing to an
applicant for commutation; and (2) by increasing the time he must wait between
filing applications for commutation from one or two years following the last
action by the Board to five years. Each of these factors, Howard argues,
increases his risk of punishment by rendering the commutation process more
burdensome. The district court granted summary judgment to the defendants,
finding Howard could not establish an ex post facto violation. We AFFIRM.
                                        I.
      Howard has been in prison a long time. More than forty years have come
and gone since Howard pled guilty to murder and received a sentence of life
imprisonment in 1968. Howard did not help himself when, three years later, he
stabbed another inmate at the penitentiary, was convicted of murder, and
received a second life sentence. These life sentences, however, were imposed
without restriction as to parole eligibility pursuant to former LSA-C. Cr. P. art.
817. Since that time, Howard has earned his General Equivalency diploma,
taken numerous classes and completed theological course work through the New
Orleans Baptist Seminary, participated in numerous prison clubs, and become
a mentor to IMPACT program participants.
      Howard has been holding onto hope. Under Louisiana law, life-sentenced
prisoners are ineligible for parole consideration until their sentence has been
commuted to a fixed term of years. LA. REV. STAT. § 15:574.4(B)(1). Because he
has constantly been seeking parole, Howard has applied for a commutation
several times, as a precursor to parole eligibility.       In 1979, the Board
recommended commutation, but the Governor returned it unsigned in 1988
when he left office. Howard reapplied for commutation that same year, but the
Board denied his application. In 1990, Howard applied and received a favorable
recommendation, but the Governor rejected it. The Board then denied Howard’s
1996 application. But Howard reapplied in 2002, the Board held a hearing in

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                                        No. 11-30919

2003, and it again favorably recommended Howard; the Governor, however, took
no action on his application before leaving office in 2004. Finally, the Board
automatically reconsidered and rejected Howard’s application in 2005. The
instant appeal derives from this final disappointment.
       Howard contends that his 2005 denial resulted from changes to Louisiana
law. Under the Louisiana Constitution of 1921, the Governor had authority to
grant pardons or commutations of sentences upon the recommendation of the
Lieutenant Governor, the Attorney General, and the judge who presided over the
conviction, or any of those two. See Gaillard v. Cronvich, 269 So. 2d 231, 232
(La. 1972). At the time of Howard’s 1968 conviction, LA. REV. STAT. § 15:571.7
(repealed) was in effect:
       Whenever a prisoner who has been convicted of a crime and
       sentenced to imprisonment for life, so conducts himself as to merit
       the approval of the superintendent of the state penitentiary he may
       apply for a commutation of his sentence and the application, upon
       approval of the superintendent, shall be forwarded to the governor.
       The governor may commute the sentence upon the recommendation
       in writing of the lieutenant governor, attorney general, and
       presiding judge of the court before which the conviction was had or
       any two of them. No commutation under this Section shall reduce
       the period of incarceration to less than ten years and six months.
State v. Ramsey, 292 So. 2d 708, 710 n.1 (La. 1974). According to the summary
judgment evidence that Howard presented, the rules of the Board of Pardons in
effect at the time of his convictions allowed a prisoner to reapply for a pardon or
commutation after one year elapsed from the date of the Board’s last action on
his file.1
       These procedures changed when Louisiana “entirely revamped” its pardon
process in connection with the passage of its 1974 Constitution. See Touchet v.
Broussard, 31 So. 3d 986, 994 n.9 (La. 2010). The new Constitution provided for


       1
           This rule was allegedly promulgated pursuant to statutory authority.

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“the creation of a Pardon Board [and] provided that the new governor could only
grant pardons upon the recommendation of this newly created pardon board.”
Id.; § 15:572(A). The Board is now comprised of five members selected by the
Governor. LA. REV. STAT. § 15:572.1(A).
       Among the other changes, LA. REV. STAT. § 15:572.4(D) now restricts the
ability of life-sentenced prisoners to apply for relief from the Pardon Board. In
relevant part, this provision imposes a five-year waiting period for “any
subsequent applications.”2 § 15:572.4(D). The provisions of § 15:572.4(D) “shall
not apply when the board determines that new and material evidence that . . .
was not discovered before or during trial, is available, and if it had been
introduced at trial, it would probably have changed the verdict or judgment of
guilty.” Id.
       Not only has the law changed, but the Pardon Board has also altered its
rules since Howard was convicted. Relevant to this appeal, Rule 3 was amended
to allow the Board to deny an applicant a hearing due to “serious nature of the
offense; insufficient time served on sentence; insufficient time after release;
proximity of parole/good time date; institutional disciplinary reports;
probation/parole-unsatisfactory/violated; past criminal record; or any other
factor determined by the Board.” Howard contends the Pardon Board implicitly
applied § 15:572.4(D) and its Rule 3 to him when it refused to grant him a
hearing in May 2005, and informed him that he could reapply in five years.
Howard filed this suit, seeking declaratory relief that these laws violate the Ex
Post Facto Clause; injunctive relief barring the defendants from applying these
laws to him; and an order requiring the laws in effect at the time of his offenses
be applied to any future reviews of his commutation application.



       2
         The statute establishes a seven-year waiting period for an applicant’s second
application, and a five-year waiting period for every application thereafter. § 15:572.4(D).

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                                              II.
       These changes, Howard argues, impose new and unconstitutional burdens
on his efforts to gain freedom. Simply put, ex post facto laws prohibit states from
enacting laws that, “by retroactive application, increase the punishment for a
crime after its commission.” Garner v. Jones, 529 U.S. 244, 249 (2000). The
particular question this case raises is whether Rule 3 and the five-year waiting
period Louisiana enacted after Howard’s incarceration sufficiently increased his
risk of punishment so as to create an ex post facto violation.
       Although the Supreme Court has previously held that changes to laws
governing parole may, in some cases, constitute ex post facto violations, neither
it nor this court has ever decided whether changes to the commutation laws and
procedures may violate this precept. See Garner, 529 U.S. at 250 (citing Lynce
v. Mathis, 519 U.S. 433 (1997) (citing Weaver v. Graham, 450 U.S. 24, 32 (1981));
Cal. Dep’t of Corrections v. Morales, 514 U.S. 499, 508-09 (1981)). Assuming
arguendo that a change to the commutation process can violate the ex post facto
laws in the same way changes to parole procedures can,3 it is clear the changes


       3
          Lewis-El v. Sampson, 649 F.3d 423, 426 (6th Cir. 2011) (noting this is “a generous
assumption”). It may be possible to conceive of a change to the commutation process that
“creates a significant risk of prolonging a respondent’s incarceration,” Garner, 529 U.S. at
251, if, for example, that change abolished the possibility of commutation altogether. The
Supreme Court has, however, held that “[a]s a matter of law, parole and commutation are
different concepts.” Solem v. Helm, 463 U.S. 277, 300 (1983). For example, Chief Justice
Burger noted that, “[r]ather than being an ad hoc exercise of clemency, parole is an established
variation on imprisonment of convicted criminals,” id. (quoting Morrissey v. Brewer, 408 U.S.
471, 477 (1972)), and that “there is a vast difference between a denial of parole . . . and a
state’s refusal to commute a lawful sentence.” Id. (quoting Conn. Bd. of Pardons v. Dumschat,
452 U.S. 458, 466 (1981). Similarly, in Solem v. Helm the Court held

       The possibility of commutation is nothing more than a hope for “an ad hoc
       exercise of clemency.” It is little different from the possibility of executive
       clemency that exists in every case in which a defendant challenges his sentence
       under the Eighth Amendment. Recognition of such a bare possibility would
       make judicial review under the Eighth Amendment meaningless.

463 U.S. at 303. Thus, the Ex Post Facto Clause, if it applies at all, would likely not function

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at issue here do not do so. See, e.g., Morales, 514 U.S. at 509 (“The amendment
create[d] only the most speculative and attenuated possibility of producing the
prohibited effect of increasing the measure of punishment for covered crimes,
and such conjectural effects are insufficient under any threshold we might
establish under the Ex Post Facto Clause.”); Garner, 529 U.S. at 252 (finding no
ex post facto violation and noting “the Ex Post Facto Clause should not be
employed for ‘the micromanagement of an endless array of legislative
adjustments to parole and sentencing proceedings’” (quoting Morales, 514 U.S.
at 508)). The Governor’s ultimate decision as to whether to grant commutation
is entirely discretionary, despite the prerequisite that the Pardon Board first
recommend a prisoner for commutation.                   And this unfettered discretion
precludes the possibility of an ex post facto violation arising from the changes to
the commutation procedure Howard identifies.4
       In Garner, the Supreme Court held that, “[w]hen [a] rule does not by its
own terms show a significant risk, the respondent must demonstrate, by
evidence drawn from the rule’s practical implementation by the agency charged
with exercising discretion, that its revocation will result in a longer period of
incarceration than under the earlier rule.” 529 U.S. at 255. The procedural
changes upon which Howard’s argument rests are several steps removed from
 proof that he now faces “a longer period of incarceration.” See id. (analyzing
whether changes to parole procedures increasing the time between reviews from
“every three” to “at least every eight” years violated the Ex Post Facto Clause,



the same with respect to commutation procedures as it does to changes to parole procedures.
See also Morales, 514 U.S. at 509.
       4
         We recognize that “[t]he presence of discretion does not displace the protections of the
Ex Post Facto Clause.” Garner, 529 U.S. at 253. After analyzing the changes to Louisiana law
and the facts of this case, however, we ultimately find the Governor’s total discretion as to
whether to grant commutation to a Board-recommended applicant is outcome determinative
in this case.

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reversing the appellate court’s determination that this was a per se violation,
and remanding for further proceedings); Lewis-El v. Sampson, 649 F.3d 423, 426
(6th Cir. 2011) (“According to the Supreme Court in Garner v. Jones, ‘the
relevant inquiry . . . is not whether the challenged [provision] is ‘law’ or whether
the guidelines present a significant risk of increasing the plaintiff’s maximum
penalty, but rather whether the new guidelines present a significant risk of
increasing the plaintiff’s amount of time actually served,’ Michael v. Ghee, 498
F.3d 372, 383 (6th Cir. 2007)[.]” (alterations in original)). Being granted a
hearing in no way secures a recommendation from the Board—indeed, the Board
has declined to recommend Howard two times prior to the 2005 denial at issue
here. And even a recommendation from the Board in no way secures an actual
grant of commutation from the Governor. The Governor’s ability to grant
commutation to a prisoner recommended by the Board is entirely discretionary.
Notably, the Board has recommended that three separate Governors commute
Howard’s sentence, but none elected to do so. This fact itself undermines
Howard’s argument that the new commutation procedure created a “significant
risk” of increasing his punishment.
      Furthermore, even a commutation does not secure an actual reduction in
the time a prisoner must serve. A commutation means only that a prisoner is
eligible for parole—it says nothing about when or even if he would actually be
paroled.   See Solem, 463 U.S. at 302-03 (“[E]ven if Helm’s sentence were
commuted, he merely would be eligible to be considered for parole. Not only is
there no guarantee he would be paroled, but . . . Helm would have to serve three-
fourths of his revised sentence before he would be eligible for parole [in South
Dakota], § 24-15-5[.]”); Cal. Dep’t of Corrections, 514 U.S. at 509 (finding a
change in California law regarding the frequency of parole hearings created
“only the most speculative and attenuated risk of increasing the measure of
punishment”). Thus, even evidence that receiving a commutation has become

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more onerous, when present, does not definitively lead to the conclusion that a
prisoner faces a “significant risk” of an increased period of incarceration.
       Other circuits have addressed similar challenges to commutation
procedures and come to the same conclusion. The Sixth Circuit, for example,
evaluated a case in which the Michigan Parole Board abandoned a grid system
previously in use to determine when a prisoner would be eligible for
commutation.       Under that system, the prisoner claimed, the parole board
generally recommended commutation after expiration of the number of years
prescribed by the grid. Lewis-El, 649 F.3d at 424. The new policy, however, set
out a schedule for determining commutation eligibility in which prisoners were
first interviewed after ten years, with reviews every five years after that. Id.
The court ultimately noted
       The decision to commute a prisoner’s sentence includes two layers
       of discretion: first, the parole board has discretion in its decision to
       recommend commutation; and second, the governor has discretion
       in his or her decision to commute the sentence. Lewis-El . . . failed
       to set forth any facts tending to show that he faces a significant risk
       of increased punishment because of Michigan’s changed
       commutation provisions, or, specifically, because Michigan no longer
       adheres to the grid. In fact, this would be almost impossible to
       demonstrate considering the decision to commute a prisoner’s
       sentence is so tied to the personal predilections of the person
       occupying the governor’s office.
Id. at 427.
       Similarly, the Third Circuit addressed alleged ex post facto violations
deriving from an amendment to Pennsylvania law requiring that the Board of
Pardons unanimously approve an applicant for commutation before the
Governor be allowed to consider the applicant.5 Pa. Prison Soc’y v. Cortes, 622
F.3d 215, 244 (3d Cir. 2010). The court concluded there was no viable claim that


       5
        Pennsylvania voters voted to limit the Governor’s clemency authority in this way. 622
F.3d at 244.

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this amendment “raise[d] a ‘significant risk’ that commutations will be denied
that otherwise would have been received,” noting “the power to grant or deny
commutations, as prescribed by the Commonwealth’s voters, rests solely with
the executive branch which may ‘deny the requested relief for any
constitutionally permissible reason or for no reason at all.’” Id. (quoting Conn.
Bd. of Pardons v. Dumschat, 452 U.S. 458, 467 (Brennan, J., concurring))).
      Finally, the Eighth Circuit analyzed a case in which the parole board
regulations initially required interviewing felons to determine commutation
eligibility five years after incarceration, then at ten, thirteen, and fifteen years
post-confinement, and annually thereafter, but were altered during the
prisoner’s incarceration to allow prisoners to apply for commutation not more
than once every ten years. Snodgrass v. Robinson, 512 F.3d 999, 1001 (8th Cir.
2008). Again, the Eighth Circuit concluded “[t]he unpredictability of a wholly
discretionary grant of commutation . . . precludes Snodgrass from demonstrating
that the changes in Iowa’s law raise a ‘significant risk’ that she will be denied
a commutation she otherwise would have received.” Id. at 1002. We find the
analysis of these three circuits to be persuasive, and similarly conclude that, in
this case, Howard has insufficiently demonstrated a “significant risk” that he
will endure a “longer period of incarceration” as a result of the amendments to
Louisiana’s commutation process. Garner, 529 U.S. at 255.
                                        III.
      Because the ultimate decision of the Louisiana governor as to whether to
grant or deny commutation remains entirely discretionary, Howard cannot
establish an ex post facto violation by identifying alterations to the State’s
commutation procedure increasing the amount of time between when
commutation applications may be filed and granting the Board authority to deny
a full hearing to an applicant. Accordingly, the judgment of the district court is
                                                                      AFFIRMED.

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