                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     October 7, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 CHRISTOPHER E. KOCH,

          Plaintiff-Appellant,
 v.                                                      No. 07-6210
 J. D. DANIELS, Assistant Director of           (D.C. No. 5:07-CV-00015-HE)
 the Oklahoma Pardon and Parole                       (W. D. Oklahoma)
 Board,

          Defendant-Appellee.



                             ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Plaintiff-Appellant Christopher Koch filed this pro se action under 42

U.S.C. § 1983, alleging that 1997 and 1998 amendments to the Oklahoma parole

statutes resulted in ex post facto punishment and violated his due process rights.

The district court dismissed the case for failure to state a claim upon which relief

could be granted. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

                                          I.

      In 1981, Koch was tried for and convicted of Murder in the First Degree in

Oklahoma state court. He received a life sentence with the possibility of parole,

which he is currently serving with the Oklahoma Department of Corrections.

Under the parole system in existence at the time of Koch’s conviction, the Pardon

and Parole Board (“Board”) would annually consider for parole any inmate

serving forty-five years or longer, including a life sentence, after he or she had

served fifteen years. See Shirley v. Chestnut, 603 F.2d 805, 806-07 (10th Cir.

1979) (describing the features of this system). Accordingly, Koch first became

eligible for parole in 1996.

      As a response to prison overcrowding, in 1988 the Oklahoma legislature

created a system known as preparole conditional supervision (“preparole”). See

1988 Okla. Sess. Laws 310, § 8. In Young v. Harper, 520 U.S. 143 (1997), the

Supreme Court described the essential features of preparole:

      [Preparole] was in effect whenever the population of the prison
      system exceeded 95% of its capacity. An inmate could be placed on
      preparole after serving 15% of his sentence, and he was eligible for

                                         -2-
      parole when one-third of his sentence had elapsed. The Pardon and
      Parole Board (Board) had a role in the placement of both parolees
      and preparolees. The Board itself determined who could participate
      in [preparole], while the Governor, based on the Board’s
      recommendation, decided whether a prisoner would be paroled. . . .
      [P]articipants in preparole were released subject to constraints
      similar to those imposed on parolees.

Id. at 145 (citations omitted). According to Koch, he was initially considered for

and denied preparole in 1995. He further alleges that from 1996 to 1998, the

Board considered him for and denied him both parole and preparole annually.

      In 1997, the Oklahoma legislature enacted the Truth in Sentencing Act,

which amended the statute authorizing preparole and replaced preparole with

“specialized parole.” See 1997 Okla. Sess. Laws 133, § 28. The eligibility

requirements for specialized parole differ from the eligibility requirements for

preparole in several key respects. The availability of specialized parole does not

depend on prison capacity. See Okla. Stat. tit. 57, § 365. Under the new regime,

only inmates within one or two years of their projected release dates are eligible

for specialized parole. Id. As a result of this amendment, Koch was no longer

considered for preparole beginning in 1999.

      In 1998, the Oklahoma legislature further amended the parole statutes,

authorizing the Board to defer parole consideration for up to three years for any

individual who had been convicted of a violent crime and who had been denied

parole previously. See Okla. Stat. tit. 57, § 332.7(D)(1). As a result of this

amendment, after being considered for and denied parole in 1998, Koch was

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considered again only in 2001 and 2005, rather than annually, and was denied

parole both times.

      On January 4, 2007, Koch filed this § 1983 action against J.D. Daniels in

his official capacity as Deputy Director of the Oklahoma Pardon and Parole

Board. Koch alleged that the 1997 and 1998 amendments to the parole statutes

constituted ex post facto punishments and violated his due process rights. Koch’s

complaint was referred to a United States magistrate judge for preliminary review

pursuant to 28 U.S.C. § 636(b)(1)(B). Before Daniels had filed an answer to the

complaint, the magistrate judge issued a Report and Recommendation determining

that Koch’s complaint failed to state a claim upon which relief could be granted

and recommending that the complaint be dismissed pursuant to 28 U.S.C. §

1915A(b)(1) 1 and 42 U.S.C. § 1997e(c)(1). 2 Specifically, the Report and

Recommendation concluded that the 1997 and 1998 amendments did not produce

a sufficient risk of increasing Koch’s punishment and thus did not violate the Ex

Post Facto Clause, and that Koch had no constitutionally-cognizable liberty

      1
        28 U.S.C. § 1915A(b)(1) provides in pertinent part that a court conducting
preliminary review in civil cases in which a prisoner seeks relief from a
governmental entity “shall identify cognizable claims or dismiss the complaint, if
the complaint . . . is frivolous, malicious, or fails to state a claim upon which
relief may be granted . . . .”
      2
        42 U.S.C. § 1997e(c)(1), a part of the Prisoner Litigation Reform Act of
1996, applies to suits by prisoners challenging prison conditions under 42 U.S.C.
§ 1983 and permits a court to dismiss such a suit “if the court is satisfied that the
action is frivolous, malicious, [or] fails to state a claim upon which relief can be
granted . . . .”

                                         -4-
interest in annual consideration for parole or in consideration for preparole. The

Report and Recommendation also concluded that Koch’s claims accrued no later

than 2001, when he should have known that he was no longer being considered

for preparole or for parole on an annual basis, and that the claims were thus

barred by Oklahoma’s two-year statute of limitations.

      Koch filed an objection to this Report and Recommendation. On July 10,

2007, the district court, having considered Koch’s objections, adopted the Report

and Recommendation and dismissed Koch’s claims with prejudice.

                                          II.

A.    Jurisdiction and the Mailbox Rule

      “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional

requirement,” and in the absence of a timely notice of appeal, a case “must be

dismissed for want of jurisdiction.” Bowles v. Russell, — U.S. —, 127 S. Ct.

2360, 2366 (2007) (quotation marks and citation omitted). Pursuant to 28 U.S.C.

§ 2107(a) and Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure,

Koch’s notice of appeal was due within thirty days of entry of judgment. The

final judgment from which Koch appeals was entered on July 10, 2007, and

Koch’s notice of appeal was therefore due by August 9, 2007. His notice of

appeal, however, was not filed in the district court until August 10, 2007.

      Due to the untimely filing of Koch’s notice of appeal, this court issued an

order directing Koch to show cause why his appeal should not be dismissed. In

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response, Koch filed a response stating that he placed his notice of appeal into the

prison’s “legal mail box . . . located within the prison law library” on August 8,

2007. Aplt. Resp. to Show Cause Order at 1 ¶ 1. Attached to the response as

Exhibit B was a document titled “Request to Staff,” which stated that Koch

deposited an envelope addressed to the district court into the prison’s mail system

on August 8. This document was signed by an unidentified person, presumably

an employee of the prison’s mail room.

       As an inmate confined in an institution, Koch’s filings are subject to the

“prison mailbox rule” set forth in Rule 4(c)(1) of the Federal Rules of Appellate

Procedure, which provides that “[i]f an inmate confined in an institution files a

notice of appeal in either a civil or a criminal case, the notice is timely if it is

deposited in the institution’s internal mail system on or before the last day for

filing.” Thus, under this rule, “a notice of appeal filed by a prisoner is deemed

filed on the date the prisoner deposits the notice in the prison mail system, and

not on the date when it is received by the clerk of the court.” Ingram v. Jones,

507 F.3d 640, 643 (7th Cir. 2007) (citing Houston v. Lack, 487 U.S. 266, 275-76

(1988)). Rule 4(c)(1) also provides that

       [i]f an institution has a system designed for legal mail, the inmate
       must use that system to receive the benefit of this rule. Timely filing
       may be shown by a declaration in compliance with 28 U.S.C. § 1746
       or by a notarized statement, either of which must set forth the date of
       deposit and state that first-class postage has been prepaid.

       We have read Rule 4(c)(1) to provide two ways for an inmate to establish

                                            -6-
timely filing under the prison mailbox rule. Price v. Philpot, 420 F.3d 1158, 1165

(10th Cir. 2005). An inmate can show timely filing

      by either (1) alleging and proving that he or she made timely use of
      the prison’s legal mail system if a satisfactory system is available, or
      (2) if a legal system is not available, then by timely use of the
      prison’s regular mail system in combination with a notarized
      statement or a declaration under penalty of perjury of the date on
      which the documents were given to prison authorities and attesting
      that postage was prepaid.

Id. at 1166 (citing United States v. Ceballos-Martinez, 387 F.3d 1140, 1144-45

(10th Cir. 2004)). The appellant bears the burden of proving compliance with the

rule. Id. at 1165.

      After Koch filed his response to the show cause order, this court appointed

counsel to represent him on appeal. Appointed counsel subsequently filed, and

this court granted, a motion to supplement the record with (a) a “joint stipulation

of jurisdictional facts” wherein the parties agreed that Koch had deposited his

notice of appeal in the prison’s legal mail system on August 8, 2007; (b) a copy

of the prison’s legal mail log showing that Koch deposited his notice of appeal on

August 8; and (c) a description of the prison’s legal mail procedures. In addition,

Koch filed a “supplemental declaration of compliance” in this court. In this

declaration, which is notarized, Koch swears “under penalty of perjury” that his

notice of appeal was placed in the prison’s legal mail system on August 8, 2007

“with first-class postage prepaid.” See Aplt. Br., Attach. A. These documents,

taken together, are sufficient to establish that Koch used the legal mail system

                                         -7-
under the first test. Thus, Koch has proven that his notice of appeal was timely

filed in accordance with the “prison mailbox rule,” and that we have jurisdiction

to consider this appeal.

B.    The District Court’s Dismissal

      We review de novo the dismissal of a complaint for failure to state a claim

pursuant to 28 U.S.C. § 1915A and/or 42 U.S.C. § 1997e(c)(1). McBride v. Deer,

240 F.3d 1287, 1289 (10th Cir. 2001). “[I]n reviewing the dismissal of a

complaint, all well-pleaded facts, as distinguished from conclusory allegations,

must be taken as true. In addition, we will take the allegations in the plaintiff’s

objections to the magistrate’s report and recommendation as true.” Id. (citation,

quotations, and alterations omitted).

1.    Alleged Ex Post Facto Violation

      The United States Constitution prohibits states from passing any “ex post

facto Law.” U.S. Const. art. I, § 10, cl. 1. As the Supreme Court explained, this

clause “forbids the imposition of punishment more severe than the punishment

assigned by law when the act to be punished occurred.” Weaver v. Graham, 450

U.S. 24, 30 (1981). “Retroactive changes in laws governing parole of prisoners,

in some instances, may be violative of this precept.” Garner v. Jones, 529 U.S.

244, 250 (2000). A retroactive change to a parole law violates the Ex Post Facto

Clause if it creates “a sufficient risk of increasing the measure of punishment

attached to the covered crimes.” Id. (quoting California Dep’t of Corr. v.

                                         -8-
Morales, 514 U.S. 499, 509 (1995)).

      A retroactive law may not violate the Ex Post Facto Clause on its face, yet

may still be applied in a way that increases a convict’s punishment and therefore

violates the Clause. Id. at 255-57. Where, however, “the rule does not by its own

terms show a significant risk” of heightened punishment, to succeed on an as-

applied challenge, “the petitioner must demonstrate, by evidence drawn from the

rule’s practical implementation, that its retroactive application will result in a

longer period of incarceration than under the earlier rule.” Henderson v. Scott,

260 F.3d 1213, 1216 (10th Cir. 2001) (citation, quotation marks, and alterations

omitted). In prior decisions, this court has concluded that the amendments to the

Oklahoma parole system that are at issue in Koch’s appeal do not violate the Ex

Post Facto Clause. While these cases do not address the specific circumstances of

Koch’s case, they provide a starting point for addressing his contentions.

      In Powell v. Ray, 301 F.3d 1200 (10th Cir. 2002), this court considered

whether the 1997 amendment that eliminated preparole violated the Ex Post Facto

Clause. “[T]he controlling inquiry” for this purpose was whether “the elimination

of [preparole] created more than a speculative risk that [an inmate’s] prison term

would be increased.” Id. at 1203. We noted that under the pre-1997 statute, “the

determination of whether a prisoner would be entitled to [preparole] was wholly

discretionary” on the part of the Board. Id. at 1204. As a result, it was “pure

speculation” for Powell to argue that the elimination of preparole increased the

                                          -9-
term of his incarceration or prolonged his punishment, particularly where he had

been denied parole just over a year after he would have been considered for

preparole. Id.

      Similarly, in Henderson, 260 F.3d at 1216-17, this court rejected an ex post

facto challenge to the 1998 amendment lengthening for violent criminals the

period between parole reviews from one to three years. Noting that the Supreme

Court had previously rebuffed similar challenges to California and Georgia

statutory amendments, see Garner, 529 U.S. at 254; Morales, 514 U.S. at 510-11,

this court concluded that the Oklahoma amendment also passed constitutional

muster. In reaching this conclusion, we specifically noted that the amendment:

(1) “does not change the length of the sentence in any way”; (2) “does not affect

the timing of the initial parole consideration, only of subsequent parole

consideration dates”; (3) “reserves the Board’s discretion to reconsider parole

before the three-year period has expired”; and (4) permits the Board to “modify

parole consideration dates if the Board receives new information.” Henderson,

260 F.3d at 1216-17; see also Seegars v. Ward, 124 F. App’x 637, 638-39 (10th

Cir. 2005) (affirming dismissal of plaintiff’s complaint for failure to state a claim;

change to plaintiff’s parole eligibility dates “could not have altered the definition

of criminal conduct nor increased punishment for a crime”).

      Koch acknowledges these cases. He argues, however, that they do not

foreclose relief in the present case because these prior cases considered the

                                         -10-
elimination of preparole and the lengthening of parole consideration periods from

one to three years in isolation, and did not consider “the cumulative impact” of

the 1997 and 1998 amendments. Aplt. Br. at 36. He argues that even if the 1997

and 1998 amendments, taken alone, do not give rise to an ex post facto violation

(either facially or as applied to the facts of his case), when they are taken together

they create a risk of increased punishment.

      Even assuming that the cumulative impact of otherwise enforceable laws

can constitute an ex post facto violation, this theory does not aid Koch. As

stated, the Ex Post Facto Clause “forbids the imposition of punishment more

severe than the punishment assigned by law when the act to be punished

occurred.” Weaver, 450 U.S. at 30 (emphasis added). Preparole did not exist

until it was created by statute in 1988, long after Koch’s 1981 conviction. By

later eliminating preparole, the legislature did not increase Koch’s potential

punishment beyond what it had been when he committed his crime in 1981, but at

most returned it to what it was in 1981. Thus, even under Koch’s “cumulative

impact” theory, the only impact that matters for ex post facto purposes is the

impact of the 1998 amendment, which lengthened the period between parole

reviews from one year, as was the practice at the time of Koch’s crime and

conviction, to three years. As discussed, this court held in Henderson that the

1998 amendment does not constitute a facial ex post facto violation.




                                         -11-
2.    Alleged Due Process Violation

      The district court, adopting the magistrate judge’s Report and

Recommendation, concluded that Koch’s due process claims should be dismissed

because Koch had no constitutionally-protected liberty interest in either preparole

consideration or in annual consideration for parole. The Due Process Clause

“only applies when government action deprives a person of liberty or property.”

United States v. Hampshire, 95 F.3d 999, 1005 (10th Cir. 1996) (quoting

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)).

Thus, although the Due Process Clause provides both substantive and procedural

protections, as an essential component of any due process analysis under 42

U.S.C. § 1983, we must first address whether the plaintiff has identified a liberty

or property interest of which he or she has been deprived. Nichols v. Bd. of

County Comm’rs, 506 F.3d 962, 969 (10th Cir. 2007).

      “A liberty interest may arise from the Constitution itself, by reason of

guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or

interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209,

221 (2005) (citations omitted). Here, Koch claims that the 1997 and 1998

amendments violated his “liberty interest in parole and in participation in the

parole consideration process.” Aplt. Br. at 38. He admits that “[t]here is no

constitutional or inherent right of a convicted person to be conditionally released

before the expiration of a valid sentence,” and concedes that he therefore has no

                                        -12-
constitutionally-derived interest in the parole and preparole consideration

procedures. Id. (quoting Greenholtz, 442 U.S. at 7). He argues, however, that the

statutes relating to preparole and parole created such an interest. See Sandin v.

Conner, 515 U.S. 472, 483-84 (1995) (“[S]tates may under certain circumstances

create liberty interests which are protected by the Due Process Clause.”). We

disagree with Koch’s characterization of the statutes at issue.

      A statute that “holds out the possibility of parole provides no more than a

mere hope that the benefit will be obtained,” and this hope “is not protected by

due process.” Greenholtz, 442 U.S. at 11 (emphasis in original). A plaintiff may

establish more than “mere hope” in a particular outcome where a decisionmaker’s

discretion is limited by rule or statute, requiring a particular outcome in given

circumstances. Nichols, 506 F.3d at 970. Where, however, the decisionmaker

“retains discretion and the outcome of the proceeding is not determined” in

advance, “no property interest is implicated.” Id. (citation omitted).

      Koch concedes that this court has concluded that the Oklahoma statutes

governing parole and preparole create no liberty or property interest: the decision

whether to grant parole or preparole to an inmate lies firmly within the discretion

of the Board, the Department of Corrections, and/or the governor. See Boutwell

v. Keating, 399 F.3d 1203, 1213-15 (10th Cir. 2005) (holding inmate had no due

process interest in preparole where statute placed no limitations on the Board’s

decision to recommend preparole placement or Department of Corrections’


                                         -13-
decision to grant or deny preparole); Shirley, 603 F.2d at 807 (holding inmate had

no due process interest in parole where statute placed no limitations on Parole

Board’s decision to recommend parole or governor’s decision to grant or deny

parole). Koch responds to these cases by arguing that “the framework which

these cases apply is fundamentally flawed by overreliance on the discretionary

nature of the statutory scheme and thus insufficiently protects rights properly

secured to the inmates by the Due Process Clause.” Aplt. Br. at 39. We are,

however, “bound by the precedent of prior panels absent en banc reconsideration

or a superseding decision by the Supreme Court.” Shubargo v. Astrue, 498 F.3d

1086, 1088 n.1 (10th Cir. 2007) (quoting In re Smith, 10 F.3d 723, 724 (10th Cir.

1993)). Koch suggests that these precedential cases should be overruled, but he

points to no authority upon which we could base such action.

      The result is no different if Koch’s asserted interest is not the grant of

parole or preparole, but merely his annual consideration for those programs. If

Koch has no constitutionally-protected liberty interest in parole or preparole, he

can have no interest in how often he is considered for them, or even whether he is

considered for them at all. See Olim v. Wakinekona, 461 U.S. 238, 251 n.12

(1983) (“[A]n expectation of receiving process is not, without more, a liberty

interest protected by the Due Process Clause.”). Rather, “a liberty interest . . . is

a substantive interest of an individual; it cannot be the right to demand needless

formality. Process is not an end in itself. Its constitutional purpose is to protect a


                                         -14-
substantive interest to which the individual has a legitimate claim of entitlement.”

Id. at 250 (citations omitted); see also Town of Castle Rock v. Gonzales, 545 U.S.

748, 763 (2005) (stating that an entitlement to “nothing but procedure” cannot be

“the basis for a property interest”). Because there are no constitutionally-

protected interests in the process at issue, and because he failed to show an

entitlement to a liberty interest in parole or preparole, Koch’s due process claims

fail.

3.      Statute of Limitations

        Having concluded that there is no merit to Koch’s ex post facto or due

process claims, we need not consider the district court’s application of the statute

of limitations.

                                          III.

        We affirm the district court’s dismissal for failure to state a claim upon

which relief could be granted.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




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