              IN THE COURT OF APPEALS OF TENNESSEE
                          AT NASHVILLE

                                                              FILED
JIMMY WAYNE WILSON,              )                           September 23, 1998
                                 )
      Plaintiff/Appellant,       )                           Cecil W. Crowson
                                 )                          Appellate Court Clerk
JAMES T. FITE, VIVIEN TROY COOK, )
DEWEY SCOTT FRAZIER, JERRY L. )
CHILTON, PAUL CARRIER, ET AL.,   )
                                 )
      Plaintiffs,                )               Appeal No.
                                 )               01-A-01-9706-CV-00266
VS.                              )
                                 )               Davidson Chancery
STATE OF TENNESSEE, GOVERNOR )                   No. 93C-91
NED RAY McWHERTER, PAROLE        )
ELIGIBILITY REVIEW BOARD &       )
MEMBERS, JIM THRASHER,           )
JOHN S. WILDER, JIMMY NAIFEH,    )
AND CHARLES BURSON, ET AL.,      )
                                 )
      Defendants/Appellees.      )


                     OPINION ON PETITION TO REHEAR


              Jimmy Wayne Wilson has filed a pro se request for a rehearing, claiming

that this court’s opinion of January 16, 1998 is in conflict with well-established

principles of law. While Rule 39 of the Rules of Appellate Procedure provides that an

appeals court may grant a rehearing in situations where “the court’s opinion is in

conflict with a statute, prior decision, or other principle of law,” Mr. Wilson has not

stated any principle of law nor cited any statute that would require us to find that he

is entitled to the relief he seeks.



              Mr. Wilson does cite a recent case of the United States Supreme Court

that was not mentioned in his brief, Lynce v. Mathis, __ U.S. __, 117 S.Ct 891, __

L.Ed.__ (1997), which he claims supports his argument that the legislature and the

Parole Eligibility Review Board violated the constitutional prohibition against ex post

facto laws when they refused to extend to him the accelerated release benefits flowing

from the 1989 Criminal Reform Sentencing Act, Tenn. Code Ann. § 40-35-601 et seq.
              The Lynce case, like the earlier case of Weaver v. Graham, 450 U.S. 24,

101 S.Ct. 960, 67 L.Ed 17 (1981), dealt with Florida statutes that reduced the rate at

which state inmates could accumulate good and honor time.



              Mr. Weaver had been convicted of second-degree murder in 1976. In

1978, the Florida legislature reduced the maximum number of sentence credits that

prisoners could earn each month. The Court found the statute in question violated the

ex post facto prohibition as to Mr. Weaver, because in changing the formula for

sentence reduction credits to his detriment, the statute made the punishment for his

crime more onerous than did the statute that was in effect at the time he was

sentenced.



              Mr. Lynce was convicted of attempted murder in 1986 on a plea of nolo

contendere.     In 1987 the Florida legislature attempted to address the prison

overcrowding problem by creating a new form of overcrowding credit, known as

administrative gain-time. Mr. Lynce earned enough sentence reduction credits,

including administrative gain-time, to be released in 1992. That same year, the

legislature enacted a statute preventing those convicted of murder or attempted

murder from earning any administrative gain-time. After Mr. Lynce was released, the

Florida attorney-general issued an opinion that the legislature intended the statute to

apply retroactively. Mr. Lynce was re-arrested, his administrative gain-time was taken

away from him, and he filed a petition for habeas corpus.



              After the lower federal courts rejected Mr. Lynce’s petition, the Supreme

Court took certiorari. In its opinion, the Court extended its interpretation of the ex post

facto prohibition beyond its holding in Weaver, by rejecting the State’s argument that

the ex post facto clause did not apply to Mr. Lynce because administrative gain-time

was not a part of the law at the time that he was convicted. It appears to us that the

decisive factor for the Court was that Mr. Lynce had been actually awarded 1,860

days of gain-time credits before they were retroactively cancelled. The Court’s

                                            2
decision did not affect the application of the statute to prevent certain classes of

inmates from receiving administrative gain-time in future.



              In reaching its decision the Court specifically distinguished the Lynce

case from its previous decision in California Department of Corrections v. Morales,

514 U.S. 499, 115 S. Ct. 1597, 131 L.Ed 2d 588 (1995). In the Morales case, the

Court held that an amendment to California’s parole procedures that decreased the

frequency of parole hearings for certain offenders did not violate the ex-post facto

prohibition, because it was speculative at best that Mr. Morales’ ultimate date of

release would be affected by the change in the timing of the parole hearings.



              While the situations of Mr. Morales and Mr. Wilson are not the same (Mr.

Morales is a notorious multiple murderer, while nobody is claiming that Mr. Wilson has

ever killed anyone), the ex post facto issue argued in the present case is similar to

that in the Morales case, and not nearly as close to that in the Lynce case.



              As we stated in our opinion in this case, Tenn. Code Ann. § 40-35-601,

et seq. placed the decision to amend or not to amend a habitual criminal’s parole

eligibility date within the discretion of the Parole Eligibility Review Board. Thus, Mr.

Wilson was not deprived of an entitlement to release when the statute was amended

to exclude from its provisions those whose triggering offense was an offense against

the person. Like Mr. Morales, Mr. Wilson only enjoyed a speculative possibility that

he would have been released earlier if not for the change in the law.



              Unlike both Mr. Morales and Mr. Wilson, Mr. Lynce had earned enough

sentence reduction credits to be entitled to release before the State of Florida took

away those credits. Far from enjoying a merely speculative possibility of release, Mr.

Lynce had actually been freed upon the completion of his sentence when he was re-

arrested. It thus appears to this court that despite the Lynce case, Mr. Wilson is not

entitled to the relief he seeks.

                                           3
The petition is denied.




                          _________________________________
                          HENRY F. TODD, PRESIDING JUDGE
                          MIDDLE SECTION




                          _________________________________
                          BEN H. CANTRELL, JUDGE




                          _________________________________
                          WILLIAM C. KOCH, JR., JUDGE




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