                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-2002

Lyons v. Mendez
Precedential or Non-Precedential: Precedential

Docket No. 00-2822




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PRECEDENTIAL

       Filed September 9, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2822

JAMES LYONS,

       Appellant

v.

JAKE MENDEZ, Warden; US PAROLE COMMISSION

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civ. No. 98-CV-01828)
District Judge: Honorable Thomas I. Vanaskie

Submitted Under Third Circuit LAR 34.1(a)
March 12, 2002

Before: ALITO, ROTH AND FUENTES, Circuit Judge s.

(Filed: September 9, 2002)

       James Lyons, Pro Se
       Reg. No. 02810-070
       P.O. 2000 Unit 3B
       White Deer, PA 17887




       Martin C. Carlson
       United States Attorney
       Mary Catherine Frye
       Assistant U.S. Attorney
       Federal Building
       228 Walnut Street
       Harrisburg, PA 17108

       Counsel for Appellee

OPINION OF THE COURT

PER CURIAM:

James Lyons appeals pro se from the District Court order
denying his petition for a writ of habeas corpus. He claims
that the Parole Commission improperly postponed his
release date beyond the guideline range by relying on a
1987 amendment to the Sentencing Reform Act ("SRA") that
authorized upward departures but that such departures
were not authorized when Lyons committed his crimes in
1986. Lyons argues that this 1987 amendment operates as
an ex post facto law and is therefore unconstitutional as
applied to him. We agree with Lyons’s ex post facto
argument and therefore reverse.

I.

Lyons committed narcotics-trafficking and related firearm
offenses in 1986. Soon thereafter, he was convicted and
sentenced to an aggregate prison term of 40 years. In 1996,
after serving more than ten years of his sentence, Lyons
had an initial parole hearing. The Parole Commission
determined that under the applicable guideline, Lyons
would normally be eligible for parole after serving 100-148
months, i.e., no later than August 1998. However, the
Commission determined that a parole eligibility date outside
the guideline range was warranted because of Lyons’s
"history of possessing/using weapons and violence."
(Exhibit 4 to the Response to Show Cause Order, filed in
the District Court at Dkt. #18). In postponing Lyons’s
eligibility date, the Commission apparently relied on 18

                                2


U.S.C. S 4206(c), which authorized the Commission to set
release dates outside the guideline range for "good cause."
Finding good cause, the Commission continued Lyons’s
incarceration until a mandatory release date in July 2009,
more than ten years beyond the maximum term in his
parole guideline range. The Commission reaffirmed its
decision after a hearing in 1998.

In 1998, after serving 151 months of his prison term,
Lyons filed a petition for a writ of habeas corpus in federal
district court pursuant to 28 U.S.C. S 2241. He raised two
challenges to the departure from his guideline range
pursuant to the 1987 amendment: first, that application of
this amendment violated the constitutional prohibition
against ex post facto laws and, second, that it exceeded
Congress’s authority under the separation-of-powers
doctrine. The District Court rejected both his ex post facto
and separation-of-powers arguments. It accordingly denied
Lyons’s petition for habeas relief. This appeal followed.

II.

Lyons bases his claim to habeas relief primarily on the ex
post facto clause of the United States Constitution.1 See
U.S. Const. Art. 1, S 9 ("No . . . ex post facto Law shall be
passed."). This clause forbids Congress from enacting any
law "which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes
_________________________________________________________________

1. Lyons also invokes the separation-of-powers doctrine as an alternative
basis for habeas relief. He argues that the 1987 amendment to
S 235(b)(3) violates this doctrine because Congress lacks the authority to
overrule two judicial decisions which Lyons believe support his claim,
Romano v. Luther, 816 F.2d 832 (2d Cir. 1987), and Paris v. Whalen, 666
F. Supp. 715 (M.D. Pa. 1987).

Regardless of whether those two decisions are helpful to Lyons, his
understanding and application of that doctrine are incorrect. The
separation of powers doctrine provides, among other things, that
Congress may not require federal courts to nullify or vacate their
properly rendered final judgments. See Plaut v. Spendthrift Farms, Inc.,
514 U.S. 211, 219 (1995). Congress’s amendment toS 235(b)(3) makes
no such threat to final judgements. Lyons’s alleged separation-of-powers
basis for habeas relief has no foundation in the facts of this case.

                                3


additional punishment to that then prescribed." Weaver v.
Graham, 450 U.S. 24, 28 (1981) (emphasis added). The test
for finding a criminal law to be ex post facto contains two
elements.2 First, the law must be retrospective, applying to
events prior to its enactment; and second, it must
disadvantage the offender affected by it. See id. at 29.

As to the first element, the 1987 amendment
to S 235(b)(3) is clearly retrospective. The parole
transition sections to which S 235(b)(3) belongs apply
to offenses committed before the SRA’s effective date. See
Tripati v. U.S. Parole Commission, 872 F.2d 328, 330
(9th Cir. 1988) (1987 amendment is retrospective); Lightsey
v. Kastner, 846 F.2d 329, 333 (5th Cir. 1988) (same). The
second element -- whether Lyons was disadvantaged
by the 1987 amendment -- depends upon a determination
of the law in effect in 1986, when Lyons committed
his crimes. The original S 235(b)(3) required that parole
release dates be set within the guideline range,3 whereas
_________________________________________________________________

2. Of course, to pursue an ex post facto challenge, Lyons must also show
that S 235(b)(3) applied to him, i.e. that he was in the Parole
Commission’s jurisdiction the day before the expiration of the five-year
period referred to in S 235(b)(3). See supra, note 3. Courts have
consistently held that the start date of the five-year period referred to in
S 235(b)(3) was November 1, 1987. See Lightsey v. Kastner, 846 F.2d
329, 331-32 (5th Cir. 1988); Romano, 816 F.3d at 837; Tripati v. U.S.
Parole Commission, 872 F.2d 328, 330 (9th Cir. 1988) (Section 235(b)(3)
does not apply to prisoner who will be out on parole before November 1,
1992).

Because Lyons had not been released on parole, we find that he was
clearly still in the Parole Commission’s jurisdiction when the five-year
period ended on the day before November 1, 1992.
3. Section 235(b)(3), as originally enacted in 1984 as part of the SRA,
provided:

       The United States Parole Commission shall set a release date, for an
       individual who will be in its jurisdiction the day before the
       expiration of five years after the effective date of this Act, that is
       within the range that applies to the prisoner under the applicable
       parole guideline. A release date set pursuant to this paragraph shall
       be set early enough to permit consideration of an appeal of the
       release date, in accordance with Parole Commission procedures,
       before the expiration of five years following the effective date of this
       Act.

Pub. L. 98-473, 98 Stat. 2032 (1984) (prior to 1987 amendment)
(emphasis added).

                                4


both before4 and after5 this original provision was in effect,
the Commission was authorized to set dates outside of the
guideline range. This determination, in turn, depends upon
the answer to the following deceptively simple question: on
what date did the SRA’s original S 235(b)(3) take effect?

Lyons argues that the original S 235(b)(3) took effect upon
enactment in 1984. The government argues that it did not
take effect until November 1, 1987. If, as Lyons argues, the
law in effect in 1986 was the original S 235(b)(3), requiring
dates within the guideline range, then Lyons was clearly
disadvantaged when the Commission relied on the 1987
amendment to postpone his release over ten years beyond
the guideline’s maximum of 148 months. But if, as the
government argues, the original S 235(b)(3) was not yet in
effect when Lyons committed his crimes, then the
Commission was still authorized to go outside the range.
Thus, when the 1987 amendment simply restored that
authority, Lyons’s punishment was no greater than when
he committed his crimes, and therefore he was not
"disadvantaged."

We agree with Lyons that the original S 235(b)(3) took
effect upon enactment and thus the 1987 amendment
operated as an ex post facto law when it was applied to
postpone his release date beyond his maximum guideline
range of 148 months. We therefore find the amended
S 235(b)(3) unconstitutional as applied to Lyons.

A.

Our analysis of the effective date begins with the text of
the statute. The Sentencing Reform Act ("SRA") was enacted
_________________________________________________________________

4. Before enactment of the SRA, the Parole Commission was permitted to
go beyond the guideline range in those cases with"good cause for so
doing." 18 U.S.C. S 4206(c) (1982).

5. The amended version of S 235(b)(3), enacted on December 7, 1987,
instructed the Commission to set a release date"pursuant to Section
4206 of Title 18 United States Code," and deleted the words, "that is
within the range that applies to the prisoner under the applicable parole
guideline." See Sentencing Act of 1987,S 2, Pub. L. 100-182, 101 Stat.
1266 (1987). Once again, upward departures from the guideline range
were authorized for "good cause." 18 U.S.C.S 4206.

                                5


as Chapter II of the multi-faceted Comprehensive Crime
Control Act ("CCCA"). See Pub. L. 98-473, 98 Stat. 1837,
1987 (1984). The SRA’s purpose was to replace "a system of
indeterminate sentences and the possibility of parole with
determinate sentencing and no parole." Walden v. U.S.
Parole Commission, 114 F.3d 1136, 1138 (11th Cir. 1997).
Because the CCCA contained no effective-date provision
governing the entire statute, the CCCA itself became
effective upon enactment on October 12, 1984. See United
States v. Shaffer, 789 F.2d 682, 686-87 (9th Cir. 1986).
Section 235 of the CCCA, located within the SRA chapter,
bore the title "Effective Date." It provided a uniform effective
date for most provisions of the SRA, specified certain
exceptions to that uniform date, and contained special
provisions concerning the transition to the new sentencing
system. See Romano v. Luther, 816 F.3d 832, 835 (2d Cir.
1987). Under S 235(a)(1), this uniform effective date was
governed by a time-delay mechanism, triggered by the
CCCA’s date of enactment. See Pub. L. No. 99-217, S 4, 99
Stat. 1728 (1985) (amending the mechanism from a 24-
month delay to a 36-month delay). In short, because the
CCCA was enacted on October 12, 1984, at least most of
the SRA became effective on November 1, 1987.
Unfortunately, S 235 made no mention of the effective date
of that entire section or of its subsection 5(b)(3).

B.

With this framework in mind, we turn to the
interpretations of the courts. In this circuit, the contention
that S 235(b)(3) took effect upon enactment of the SRA is a
matter of first impression.6 We have not yet faced a
petitioner like Lyons: his release date hinges on our
determination of when S 235(b)(3) went into effect, because
he committed his crimes after the provision’s enactment in
_________________________________________________________________

6. In Madonna v. U.S. Parole Commission, 900 F.2d 24 (3d Cir. 1990), the
petitioner challenged the amended version of S 235(b)(3) under the ex
post facto and due process clauses. However, this Court found it
"unnecessary to address these questions" because the Commission had
not departed from the guideline range. Id. at 25. Furthermore, unlike
Lyons, Madonna committed his crime before the SRA was enacted.

                                6


1984 but before its amendment in 1987, and he was still in
the Commission’s jurisdiction when the statute’s five-year
transition period ended. The petitioner in United States ex
rel. D’Agostino v. Keohane, 877 F.2d 1167 (3d Cir. 1989),
claimed the benefit of the original S 235(b)(3); but unlike
Lyons, D’Agostino committed his crimes in the 1970’s, long
before the SRA was even enacted, so our holding against
D’Agostino could not have implicated the issue before us,
i.e., whether S 235(b)(3) took effect in 1984 or 1987.

We acknowledge that in United States v. Martinez-Zayas,
857 F.2d 122 (3d Cir. 1988), in discussing whether we had
appellate jurisdiction under 18 U.S.C. S 3742 (1986 Supp.),
we stated that "Congress determined that S 3742 and the
other provisions in its new sentencing law would be effective
November 1, 1987." Id. at 126 (emphasis added). We do not
construe this statement as binding upon our inquiry into
the effective date of S 235(b)(3). As we noted above, most of
the SRA provisions took effect on November 1, 1987, but
S 235 contained explicit exceptions, so our phrase "and the
other provisions" in Martinez-Zayas was both overbroad and
dictum. The only SRA provision before us then wasS 3742
(conferring appellate jurisdiction over sentences imposed in
violation of law) and its effective date. No other provisions
of the SRA, including S 235(b)(3), related to that decision.

Similarly, in another indirectly related matter--
concerning the question whether the SRA also applies to
offenses committed before its effective date-- we noted that
Congress amended S 235(a)(1) of the SRA to clarify that the
SRA applies "only to offenses committed after" November 1,
1987. Gallardo v. Quinlan, 874 F.2d 186, 188 (3d Cir.
1989). However, as the Seventh Circuit has noted, in
making that clarification, Congress cannot have been
referring to those parts of the SRA that concern parole
transition because defendants committing offenses after
November 1, 1987, were not subject to parole. See Norwood
v. Brennan, 891 F.2d 179, 181 (7th Cir. 1989). If the parole
transition provisions were applicable only to offenses
committed after November 1, 1987, they would not apply to
anyone. See id. Thus, our statement in Gallardo cannot be
reasonably construed to encompass the parole transition
provision before us in this case, S 235(b)(3).

                                  7


C.

With no controlling precedent on point to guide us, we
survey the decision of the other courts of appeals. Several
of the courts of appeals have stated that S 235(b)(3) took
effect on November 1, 1987. However, these statements
were typically not grounded in analysis (referring instead to
S 235(a), the SRA’s general effective-date provision) and
rarely central to the holding. See Evenstad v. United States,
978 F.2d 1154, 1158 (9th Cir. 1992); Coleman v. Honsted,
908 F.2d 906, 908 (11th Cir. 1990); Miller v. Story, 814
F.2d 320, 321 (6th Cir. 1987); Kimberlin v. Brewer, 825
F.2d 1157, 1158 (7th Cir. 1987). By contrast, the Second
Circuit in Romano v. Luther, 816 F.3d 832 (2d Cir. 1987),
engaged in analysis and concluded, albeit in dicta, that
S 235(b)(3) took effect upon enactment in 1984.

We are aware of only two court of appeals cases, in the
Ninth and Eleventh Circuits, in which the effective date of
S 235(b)(3) was crucial to the holding.7 See Evenstad v.
_________________________________________________________________

7. A number of cases   have denied relief to petitioners seeking to
challenge the timing   of their release based on the 1987 amendment to
S235(b)(3). However,   with one exception, these petitioners are factually
distinguishable from   Lyons.

In some cases, the petitioner was sentenced before the SRA was
enacted. Thus, the petitioner was sentenced under 18 U.S.C. S 4206 that
authorized the Commission to set release dates outside of the guideline
range for good cause. The 1987 amendment to S 235(b)(3) merely
restored that authority. Thus, those petitioners would not be
disadvantaged by the amendment and could not satisfy the test for an
ex post facto challenge. See Valladares v. Keohane, 871 F.2d 1560, 1563
(11th Cir. 1989); Norwood, 891 F.2d at 182; Kimberlin, 825 F.2d at
1158. By contrast, Lyons was sentenced after the SRA was enacted.

In other cases, the petitioner was scheduled to be released before the
end of the five-year period specified in S 235(b)(3), and the provision did
not apply on its face. Miller, 814 F.2d at 321. By contrast, Lyons was
scheduled to (and did) remain in the jurisdiction of the Parole
Commission at the expiration of the five-year period.

In still other cases, the petitioner was disqualified for relief for both of
these reasons. See Tripati v. United States Parole Commission, 872 F.2d
328, 329 (9th Cir. 1988); Lightsey v. Kastner , 846 F.2d 329, 333-34 (5th
Cir. 1988).

                                8


United States, 978 F.2d 1154 (9th Cir. 1991); Coleman v.
Honsted, 908 F.2d 906 (11th Cir. 1990). The relevant
chronological facts of those petitioners appear identical to
our case.8 However, neither case involved an ex post facto
challenge. Both circuits rejected the petitioners’ argument
that the original S 235(b)(3) should have applied to them.
We find neither circuit’s conclusion persuasive.

In Evenstad, the petitioner argued that his guilty plea
was involuntary because he had relied on the parole
provisions of the original S 235(b)(3), which was later
amended to his disadvantage. The Court stated, without
analysis, that S 235(b)(3) did not take effect until November
1, 1987, and therefore held that the petitioner could not
have relied on that provision when pleading guilty in 1986.
See Evenstad, 978 F.2d at 1158. The Ninth Circuit also
stated that S 235(b)(3) is "a transition provision, which
controls the timing of the Parole Commission’s decisions,
but does not change the parole eligibility of prisoners." Id.
We disagree with this statement. Section 235(b)(3), as
originally enacted, did affect parole eligibility for those
prisoners to whom it applied, as it mandated a release date
within, rather than beyond, the guideline range. If it had
not affected the parole eligibility of that group, then it is
difficult to conceive why Congress amended that provision
in 1987 to restore the Commission’s former authority to go
beyond the guideline range.
_________________________________________________________________

In one Ninth Circuit case, United States v. Silver, 83 F.3d 289 (9th Cir.
1996), the petitioner’s chronological facts are similar to Lyons, i.e. he
committed his crimes between 1984 and November 1, 1987 and was still
in prison in 1992. The Court held that "the law that existed prior to the
[SRA’s] effective date [of November 1, 1987] applies to this case," but the
issue in that case was 18 U.S.C. S 3564, not parole or S 235(b)(3).

8. Like Lyons, the petitioners in these two cases committed offenses after
the SRA was enacted but before S 235(b)(3) was amended in 1987.
Although there is no discussion of the fact in either case, it appears that
each petitioner would have been in the Parole Commission’s jurisdiction
at the end of the five-year period referred to inS 235(b)(3). See Evenstad,
978 F.2d at 1156 (offense and sentence in 1986; sentenced to twelve
years); Coleman, 908 F.2d at 907 (arrested in 1986 and sentenced to 13
years prison).

                                9


In Coleman, the petitioner argued that a release date
within the guideline range was mandated by S 235(b)(3).
The Court stated that S 235(b)(3) was meant solely as a
"winding up" provision and was not meant to change the
manner in which the Commission determined eligibility
dates. Coleman, 908 F.2d at 908. The Court stated that this
view was supported by the fact that Congress amended the
section to "clarify" its intent "thirty-six days after the
Sentencing Reform Act had taken effect," i.e., in December
of 1987. Id. We cannot read the December 1987
amendment as a "clarification." As originally enacted,
S 235(b)(3) required a release date within the guideline
range. We noted in D’Agostino that Congress realized that,
as originally enacted, S 235(b)(3) provided"an unjustified
windfall to some of the most dangerous prisoners" and that
the 1987 amendment was enacted to return authority to
the Commission to go beyond the guideline range where
warranted. See D’Agostino, 877 F.2d at 1172, n.9 (quoting
132 Cong. Rec. S-7940 (April 17, 1986) (statements of
Senator Thurmond)). While the decision to mandate release
dates within the guideline range may not have been wise, it
is the decision that Congress made in its original
enactment.

We are persuaded by the reasoning of the Second Circuit
in Romano that S 235 took effect upon enactment in 1984.
See 816 F.2d at 839. That Court reasoned that"it would be
highly anomalous for potions of a section creating the
timetable for a statute to have their own effective dates
delayed." Id. The Court observed that if another subsection
of the same provision, S 235(b)(5), was construed as not
taking effect until November 1, 1987, an absurd result
would follow:

       the Chairman of the Parole Commission, who becomes
       an ex officio member of the Sentencing Commission by
       virtue of subsection 235(b)(5), could not join the
       Sentencing Commission until November 1, 1987,
       almost six months after the Commission must submit
       its guidelines to Congress.

Id. at 839.9 CertainlyS 235(b)(5), although located within
_________________________________________________________________

9. The Romano court nevertheless held that the petitioner was not
eligible for relief under S 235(b)(3), because he would not be within the
Commission’s jurisdiction on November 1, 1992. See Romano, 816 F.2d
at 840.
                                10


the SRA chapter and not explicitly excepted from the
uniform Effective Date, must be construed as taking effect
upon enactment.

We agree that, absent a clear contrary intention in the
text, "an effective date provision becomes effective the date
of enactment." Id. Seeing no clear contrary intention in the
text, we hold that S 235(b)(3) took effect upon enactment on
October 12, 1984. Therefore, this original provision--
requiring the Commission to stay within the guideline range
-- was in effect when Lyons committed his crimes in 1986,
and thus the retroactive application of the 1987
amendment to lengthen his punishment was
unconstitutional under the ex post facto clause.

The District Court here, after noting that implicit repeals
are disfavored, concluded that, under the reasoning in
Romano, S 235(b)(3) would have implicitly repealed 18
U.S.C. S 4206(c). We think that adopting the conclusion in
Romano would work no such repeal. The Supreme Court
recently reiterated its rule that "when two statutes are
capable of coexistence, it is the duty of the courts, absent
a clearly expressed congressional intention to the contrary,
to regard each as effective." J.E.M. Ag Supply, Inc. v. Pioneer
Hi-Bred Int’l, Inc., 534 U.S. 124, __, 122 S. Ct. 593, 605
(2001) (citation omitted). Section 235(b)(3) applies to the
small class of persons (of which Mr. Lyons is a member)
who committed crimes between October 12, 1984 and
December 7, 1987 and who were scheduled to be in the
Parole Commission’s jurisdiction on November 1, 1992.
Even after S 235(b)(3) took effect, S 4206(c) still applied to
two other classes of criminals: (1) those who committed
their crimes before October 12, 1984 and (2) those who
would no longer be in the Commission’s jurisdiction on
November 1, 1992. Thus, both statutes can coexist and
therefore both should be regarded as effective.

The District Court found that the statutory framework
and legislative history supported its conclusion that
S 235(b)(3) did not take effect until November 1, 1987. It
viewed it as a winding-up provision, intended to ensure
that the Parole Commission take action regarding those
inmates who were sentenced under pre-SRA law and would
still be in prison after the Commission was phased out.

                                11


Because the Commission was to continue its business for
five years after the SRA took effect, "there was no need for
the S 235(b)(3) to go into effect before" the SRA’s effective
date. App. at 31 (District Court’s Memorandum). The
Senate Report did indicate an intent to distinguish between
pre-SRA era and SRA-era offenses, to create a seamless
phasing out of the Commission as the SRA took effect. The
report stated that a "sentence imposed before the effective
date of the [Sentencing] guidelines . . . would not be
affected by this title. As to an offense committed prior to
the effective date, the preexisting law will apply as to all
substantive matters including the imposable sentence." S.
Rep. No. 98-225, reprinted at 1984 U.S.C.C.A.N. 3182,
3372 (1985).

It may be true that, considering the mechanics of the
transition, "there was no need" for S 235(b)(3) to go into
effect before the rest of the SRA. It is also possible that
Congress wished to design a transition without the window
of opportunity through which Lyons sees his freedom.
However, the text of the statute is the best expression of
the intent of Congress. Using standard tools of statutory
interpretation, we have carefully considered both the text
and context of S 235(b)(3) and conclude that it took effect
upon enactment.

III.

We hold that S 235(b)(3) took effect on October 12, 1984,
and, as originally enacted, applied to Lyons. Thus, he was
a member of the class of individuals (who committed crimes
between the enactment of the SRA in 1984 and the
amendment of S 235(b)(3) in 1987) who are entitled to a
parole release date within the guideline range. The
application of the 1987 amendment to Lyons disadvantaged
him because it permitted the Commission to set his release
date beyond -- rather than within -- the guideline range.
By imposing additional, retrospective punishment on Lyons,
the amended S 235(b)(3) operated as an ex post facto law. It
is unconstitutional as applied to Lyons.

We will therefore reverse the District Court’s holding that
S 235(b)(3) does not constitute an ex post facto violation

                                12


against Lyons. We remand so that the District Court may
issue the writ of habeas corpus.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                13
