                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                      No. 07-1463
                                     ___________
Sherryl Ann Snodgrass,                      *
                                            *
              Plaintiff-Appellant,          *
                                            *
Juliann Lawrence,                           *
                                            *
              Plaintiff,                    *
                                            *   Appeal from the United States
       v.                                   *   District Court for the
                                            *   Southern District of Iowa.
Elizabeth Robinson, Chair of the Iowa *
Board of Parole, in her individual and      *
official capacity; Karen Muelhaupt,         *
Vice Chair of the Iowa Board of Parole, *
in her individual and official capacity; *
Richard S. Boardwell, Member, Iowa          *
Board of Parole, in his individual and      *
official capacity; Curtis S. Jenkins,       *
Member, Iowa Board of Parole, in his        *
individual and official capacity; Barbara *
Binnie, Member, Iowa Board of Parole, *
in her individual and official capacity; *
Iowa Board of Parole; and Chester J.        *
Culver, Governor of Iowa,                   *
                                            *
              Defendants-Appellees.         *
                                     ___________

                            Submitted: November 1, 2007
                               Filed: January 11, 2008
                                ___________

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
                          ___________
MELLOY, Circuit Judge.

        State prisoner Sherryl Ann Snodgrass filed suit alleging that the Iowa Board of
Parole (“the Board”), the Board’s members, and the governor of Iowa violated her
constitutional rights by applying laws and regulations governing sentence
commutation requests even though the laws were passed after her conviction. She
alleges these acts violated the ex post facto clause of the United States Constitution
and caused a deprivation of her Fifth and Fourteenth Amendment due process rights.
U.S. Const. Art. I, § 10, cl. 1; Amend. V; Amend. XIV, § 1. The district court1
granted a motion to dismiss, finding commutation by the governor in Iowa to be an
act of grace unrestricted by substantive laws or rules. The district court concluded that
the speculative possibility of a lost opportunity for a commutation could not serve as
the basis for a state’s ex post facto violation and that Snodgrass had no liberty interest
in an act of grace by the governor. Accordingly, the district court held Snodgrass had
not stated a cause of action for any constitutional violations. We affirm.

I. Background

       Snodgrass and her lover were convicted of first degree murder for the 1981
slaying of Snodgrass’s husband. The details of the offense and the state court
proceedings are described in State v. Snodgrass, 346 N.W.2d 472 (Iowa 1984). First
degree murder is a class A felony in Iowa, Iowa Code § 707.2 (1981 and 2007), and
carries a mandatory life sentence. Id. § 902.1. Now, as it did in 1981, Iowa precludes
a grant of parole to a person serving a life sentence. Id. In other words, a life
sentence in Iowa is a life sentence without the possibility of parole, absent the
governor’s commutation of the sentence to a term of years. Id. (providing that if the
governor commutes a prisoner’s life sentence to a term of years, the prisoner becomes
eligible for parole).

      1
       The Honorable Ross A. Walters, United States Magistrate Judge for the
Southern District of Iowa, sitting by consent of the parties in accordance with 28
U.S.C. § 636(c).

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         The Iowa constitution grants the governor the power to commute sentences,
“subject to such regulations as may be provided by law.” Iowa Const. Art. IV, § 16.
Iowa, however, has passed no substantive restrictions on the governor’s ability to
commute sentences, and, in fact, the Iowa Code provides, “The power of the Governor
. . . to grant a . . . commutation of sentence . . . shall not be impaired.” Iowa Code §
914.1 (2007). For the purpose of our analysis, then, we must view the Iowa
governor’s power to commute sentences as substantively unfettered. Lyon v. State,
404 N.W.2d 580, 583 (Iowa Ct. App. 1987) (“No substantive predicates are placed
upon the governor’s discretion in granting a commutation of sentence.”).

       Although the governor’s authority to commute sentences is not restricted by any
substantive laws, the Iowa Code does provide that the Board shall review certain
prisoners’ files, interview prisoners, and make commutation recommendations to the
governor. Iowa Code § 902.2 (2007). At the time of Snodgrass’s offense and
conviction, the Iowa Code provided that the Board was to interview class A felons
within five years of their incarceration “and regularly thereafter.” Iowa Code § 902.2
(1981). Applicable regulations added detail to this general requirement, providing for
interviews of class A felons at intervals of five, ten, thirteen, and fifteen years post-
confinement, and annually thereafter. Iowa Admin. Code § 205-14.2(1) (902)
(1989).

       In 1995, well after Snodgrass’s 1981 conviction, the Iowa legislature amended
Iowa Code § 902.2 to provide that a Class A felon serving a life sentence could apply
to the governor for commutation “no more frequently than once every ten years.”
Iowa Code § 902.2 (1995). This amended code section also provides that the
governor is to forward such applications to the Board to enable the Board to make
recommendations. Id. Finally, the Board’s recommendations have never been
binding on the governor, and section 902.2 in no way restricts the power of the
Director of the Iowa Department of Corrections, who “may make a request to the
governor that a person’s sentence be commuted to a term of years at any time.” Iowa
Code § 902.2 (2007).

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       In support of her claims, Snodgrass alleges additional facts regarding the
practices of the Board, the history of her applications with the Board, and the
governor’s denial of a recent commutation application from Snodgrass. She argues
on appeal that the district court improperly granted the state’s motion to dismiss and
failed to accept the facts alleged in her complaint and the reasonable inferences from
those facts. We need not delve into her factual allegations. At the end of the day, any
form of relief for Snodgrass depends on a speculative, unpredictable, and wholly
discretionary grant of clemency by the governor. We agree with the district court that
Snodgrass cannot state an ex post facto or due process violation based on the
application of the challenged laws.

II.   Ex Post Facto

       “[T]he focus of the ex post facto inquiry is not on whether a legislative change
produces some ambiguous sort of ‘disadvantage,’ nor . . . on whether an amendment
affects a prisoner’s ‘opportunity to take advantage of provisions for early release,’ but
on whether any such change alters the definition of criminal conduct or increases the
penalty by which a crime is punishable.” Cal. Dep't of Corr. v. Morales, 514 U.S.
499, 506 n. 3 (1995) (citation omitted). Simply put, not every change in the law raises
ex post facto concerns. The changed law must create a “significant risk” of increasing
the offender’s punishment. See Garner v. Jones, 529 U.S. 244, 255 (2000)
(announcing the rule that, to prove an ex post facto violation related to changes in
parole procedures, an inmate must, “show that as applied to his own sentence the law
created a significant risk of increasing his punishment”) (emphasis added).

       Here, Snodgrass’s claim does not hinge on the availability of parole, but on the
availability of a commutation—the only means by which she might become eligible
for parole.2 Whereas changes to parole procedures may, in some circumstances raise


      2
     It is difficult to speak generically about differences between parole and
commutation, and it is necessary to focus specifically on the law at issue in a given

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ex post facto concerns, changes to Iowa’s procedures for commutation applications
do not. See id. at 250 (“Retroactive changes in laws governing parole of prisoners,
in some instances, may be violative of [the ex post facto clause].”). This is because
most parole procedures are distinct from the highly personal, policy oriented, and
legislatively unchecked authority of the Iowa governor to grant sentence
commutations.

       The unpredictability of a wholly discretionary grant of commutation in Iowa
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. As such, she cannot demonstrate there is a significant risk her punishment
will be longer than it would have been under former Iowa Code Section 902.2.
Accordingly, she cannot make out an ex post facto claim. Morales, 514 U.S. at 509
(stating that where the changed law gives rise to “only the most speculative and
attenuated possibility of . . . increasing the measure of punishment . . . such
conjectural effects are insufficient under any threshold we might establish under the
ex post facto clause”).



case. This is because each state may have slightly different degrees of discretion or
guidance imposed on its parole board’s or governor’s exercise of power, and the
relative degree of discretion or guidance factors largely into determining whether a
change in a relevant law create a significant risk of increasing a defendant’s
punishment. In Garner, for example, the Court described a Georgia parole board as
holding “broad discretion.” Garner, 529 U.S. at 253. That discretion was not
limitless, however, and the controlling state statute provided guidance for the parole
board’s consideration, repeatedly stating what factors the parole board “‘shall’” and
“‘shall not’” consider. Id. at 252-53 (quoting Ga. Code Ann. § 42-9-42(c)). The
Court ultimately remanded the case for further development because the record was
not sufficient to conduct “a more rigorous analysis of the level of risk [of increased
punishment] created by the change in law.” Id. at 255. In the present case, there are
no statutory “shalls” restricting the Iowa governor’s discretion or providing
benchmarks by which a reviewing court might conduct an analysis of the likelihood
that changes in the law will create a significant risk of increased punishment.

                                         -5-
II. Due Process

       To state a due process violation, Snodgrass must first identify a protected
liberty interest. She asserts a liberty interest in familial association and claims that the
changed law will increase her sentence thereby depriving her of contact with her
family. The proper focus, however, is not on whether Snodgrass has some liberty
interest that is affected by her continued incarceration. Her criminal acts and lawful
conviction caused her incarceration and extinguished or limited countless liberty
interests. Those liberty interests were removed under the myriad procedural
protections attendant to arrest and trial. The proper focus in this case is on whether
she has a liberty interest in the grant of a sentence commutation from the Iowa
governor—the only action that can in any manner shorten her term of incarceration.

        On this question, the law is clear: “no liberty interest . . . is created unless the
state statute or regulation involved uses mandatory language and imposes substantive
limits on the discretion of state officials.” Bagley v. Rogerson, 5 F.3d 325, 328-29
(8th Cir. 1993); see also, Marshall v. Mitchell, 57 F.3d 671, 672-73 (8th Cir. 1995)
(holding that a Missouri parole scheme that gives officials “virtually unlimited
discretion” to grant parole does “not create a liberty interest protected by the due
process clause of the Fourteenth Amendment”). Likewise, the Supreme Court has
refused to recognize a prisoner’s liberty interest in discretionary commutations based
on a statute that has “no definitions, no criteria, and no mandated shalls.” Conn. Bd.
of Pardons v. Dumschat, 452 U.S. 458, 466 (1981) (citations omitted); see id. at 464
(interpreting a Connecticut statute and holding that “an inmate has no constitutional
or inherent right to commutation of his sentence.”). Without a liberty interest in a
commutation, there can be no due process violation related to changes in the
procedure surrounding such a commutation. See id. at 463 (“Plainly, however, the
underlying right must have come into existence before it can trigger due process
protection.”). As we stated in Bagley, “ If a state law gives . . . the right to a certain
outcome in the event of the occurrence of certain facts, [there is] a right, by virtue of
the Fourteenth Amendment, to whatever process is due in connection with the

                                            -6-
determination of whether those facts exist.” Bagley, 5 F.3d at 328. Here, the
unfettered discretion vested in the governor gives no prisoner a “right to a certain
outcome in the event of the occurrence of certain fact.” As such, Iowa prisoners have
no liberty interest in commutations, just like the Missouri prisoners had no liberty
interest in the grants of parole in the scheme examined in Marshall.

       To the extent Snodgrass argues her asserted liberty interest is an absolute right
to interviews with the Board as frequently as was permitted under Iowa law at the time
of her offense, her arguments are misplaced. Such an argument confuses the liberty
interested to be protected with the procedure provided for its protection.

      We affirm the judgment of the district court.
                      ______________________________




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