Willis L. METHENY, on behalf of himself and all other members of his class, Edward Lang, on behalf of
himself and all other members of his class, et al., Plaintiffs-Appellees,

                                                      v.

   Garfield HAMMONDS, Jr., Chairman of the Georgia State Board of Pardons and Paroles and in his
official capacity, Defendant-Appellant.

                                               No. 99-10646.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                                July 7, 2000.

Appeal from the United States District Court for the Middle District of Georgia. (No. 96-00278-5-CV-
1CWH), Claude W. Hicks,Jr., Magistrate Judge.

Before EDMONDSON and MARCUS, Circuit Judges, and STROM*, District Judge.

        EDMONDSON, Circuit Judge:

        Plaintiffs, inmates sentenced under Georgia's recidivist statute, O.C.G.A. § 17-10-7(c), brought a

section 1983 suit alleging that the Georgia parole board's decision to eliminate Plaintiffs' parole eligibility

violated the Ex Post Facto Clause, and alternatively, the Due Process Clause. The magistrate judge granted

summary judgment for Plaintiffs. We vacate and remand.

                                              BACKGROUND

         Plaintiffs are four Georgia state inmates who were convicted under the Georgia recidivist statute.1

That statute, which was enacted originally in 1953, provides:

        [a]ny person who, after having been convicted under the laws of this state for three felonies or having
        been convicted under the laws of any other state or of the United States of three crimes which if
        committed within this state would be felonies, commits a felony within this state other than a capital
        felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum
        time provided in the sentence of the judge based upon such conviction and shall not be eligible for
        parole until the maximum sentence has been served.




   *
    Honorable Lyle E. Strom, U.S. District Judge for the District of Nebraska, sitting by designation.
   1
   Only four plaintiffs are in this case: Willis Metheny, Edward Lang, Paul Ivey, and Charlie Pritchett.
Even though their complaint alleged a class action, no class action has been certified by the district court.
O.C.G.A. § 17-10-7(c) (emphasis added).2 For many years, this statute was not applied by the Georgia Board

of Pardons and Paroles (the "Board"). Two Georgia Attorneys General had issued advisory opinions stating

that the statute was an unconstitutional infringement on the Board's power under the Georgia Constitution

and informing the Board that it was authorized to grant parole to recidivists convicted under the statute.3

           Then in 1994, an appellate court spoke to the issue of the statute's validity for the first time. The

Georgia Supreme Court decided Freeman v. State, 264 Ga. 27, 440 S.E.2d 181 (1994), which held that a

similar statute—which declared that certain crimes carry a life sentence without parole—does not violate the

constitutional authority of the Board because the statute "renders the defendant ineligible for parole in the first

instance." Id. at 184.4 In the wake of the Georgia Supreme Court opinion, Georgia Attorney General Michael

Bowers issued an official opinion to the Chairman of the Board stating that the Board's authority to grant

parole to recidivists was limited by the statute: the legislature could constitutionally enact statutes denying

parole for certain crimes.5



       2
     When plaintiffs were convicted the recidivist statute was codified at O.C.G.A. § 17-10-7(b). An
amendment to the statute recodified it, without any changes to the language, in subsection (c). We shall
hereinafter refer to the statute by its current codification at O.C.G.A. § 17-10-7(c).
   3
    The advisory opinions stated, in part: "[I]nsofar as it would affect the granting of pardons and paroles,
[§ 17-10-7(c) ] is unconstitutional, void, and of no effect, and you would be authorized to ignore it in the
consideration of applicants for parol[e].... It is generally recognized that when the Constitution confers
powers of pardon and parole upon a designated board, such powers are not subject to legislative control or
restriction except as provided in the Constitution itself." Ga. Op. Att'y Gen.1954-56, at 591 (Sept. 30, 1955);
accord Ga. Op. Att'y Gen. 69-431 (Oct. 10, 1969). These opinions, however, are not law, but at most
persuasive legal authority. See Campbell v. Poythress, 216 Ga.App. 834, 456 S.E.2d 110, 111 (1995).
       4
      And in January 1995, a constitutional amendment, which ratified previously enacted general laws
restricting the Board's authority, went into effect. Ga. Const. Art. IV, § II, ¶ II(b)(4) ("Any general law
previously enacted by the General Assembly providing for life without parole or for mandatory service of
sentences without suspension, probation, or parole is hereby ratified and approved....").
  5
    A later opinion by the Attorney General stated that the denial of parole eligibility to recidivists convicted
before the state constitutional amendment would not violate the Ex Post Facto Clause: "[S]ince the provisions
of statutes like ... former O.C.G.A. § 17-10-7(b) were validated as constitutional under Freeman prior to the
enactment of the Reform Act [and the constitutional amendment], there is no retroactive application of
maximum sentences in those instances. The General Assembly rendered recidivists 'ineligible for parole in
the first instance.' Thus, the Board's power and authority are not invoked in those cases. This analysis

                                                        2
              Therefore, in 1995, the Board began applying the statute, redetermining the parole eligibility of

inmates sentenced under O.C.G.A. § 17-10-7(c), and denying parole to recidivists.6 And in 1998, the Georgia

Supreme Court ruled that the application of O.C.G.A. § 17-10-7(c) to recidivists sentenced in 1990—that is,

pre-Freeman—was constitutional. See Moore v. Ray, 269 Ga. 457, 499 S.E.2d 636, 637 (1998).

              When all four Plaintiffs committed their crimes, the Board was still not applying the statute and was

granting parole to persons convicted under the recidivist statute. Plaintiffs have since been notified that they

are ineligible for parole.7 They brought this 42 U.S.C. § 1983 suit alleging (1) that the Board's elimination

of Plaintiffs' parole eligibility violates the Ex Post Facto Clause, U.S. Const. Art. I, § 10, and, in the

alternative, (2) that the Due Process Clause, U.S. Const. Amend. 14, has been violated through the Georgia

Supreme Court's unforeseeable and retroactive interpretation of state law penalizing Plaintiffs. The parties

filed cross motions for summary judgment. The magistrate judge concluded that the Board's retroactive

application of its rules on parole violated the Ex Post Facto Clause and granted Plaintiffs' motion for summary

judgment.8

                                                     DISCUSSION

                                             EX POST FACTO CLAUSE




confirms the advice rendered by this Office in [1995].' " Ga. Op. Att'y Gen. 97-10 (Mar. 18, 1997).
      6
     The Board has amended its rules and regulations to limit parole eligibility to those for whom parole is
authorized by law. See Ga. Comp. R. & Regs. r. 475-3-.06. Since ineligibility for parole is now codified in
the regulations, we do not address whether a mere policy of the Board would be "law" subject to the Ex Post
Facto Clause.
  7
   In 1995, all four Plaintiffs received letters informing them that, due to the opinion of the Attorney General
concluding that inmates sentenced pursuant to O.C.G.A. 17-10-7(c) could not be paroled, Plaintiffs would
no longer be considered eligible for parole. For example, Plaintiff Metheny had received a tentative parole
date of April 1995. Then, in March 1995, Plaintiff was notified that he was no longer eligible for parole and
must serve his entire sentence.
      8
          The final disposition of this case was decided by a magistrate judge by express consent of the parties.

                                                           3
         Plaintiffs argue the retroactive change in the Board's rules and regulations—applying the bar to

Plaintiffs' parole eligibility—violates the Ex Post Facto Clause. We disagree.9

         The Ex Post Facto Clause prohibits States from enacting laws that, by their retroactive application,

increase the punishment for a crime after it has been committed. See Garner v. Jones, --- U.S. ----, ----, 120

S.Ct. 1362, 1367, 146 L.Ed.2d 236 (2000). And a retroactive change in the laws about parole of inmates has

been held to violate this prohibition when the law created "a sufficient risk of increasing the measure of

punishment attached to the covered crimes." California Dep't of Corrections v. Morales, 514 U.S. 499, 115

S.Ct. 1597, 1603, 131 L.Ed.2d 588 (1995); accord Garner, 120 S.Ct. at 1368 (stating inquiry is whether new

rule "creates a significant risk of prolonging respondent's incarceration"). We will suppose that the Board's

change in position on parole creates such a risk: inmates sentenced pursuant to the statute will not be eligible

for parole.

         In another context, we have written that the Board's rules and regulations constitute laws subject to

the Ex Post Facto Clause. See Akins v. Snow, 922 F.2d 1558, 1561 (11th Cir.1991). In Akins, however, we

reasoned that the then pertinent rules and regulations of the Board were "laws" because they were the product

of a legislative delegation of power and thus had the force and effect of law. See id. (noting the Georgia

legislature delegated by statute to the Board the authority to enact rules and regulations about parole

reconsideration). This reasoning does not fit the parole regulation at issue in this case: the 1953 statute

expressly took away from the Board the ability to grant parole to recidivists. The statute was clear: the Board

had no authority to grant parole to recidivists. The Board's regulation about granting parole, when such

regulation was clearly in conflict with the statute, was legally void: without any authorization in the law.10




  9
   We review a grant of summary judgment de novo. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117
(11th Cir.1993).
  10
     The Georgia Supreme Court has held that the pertinent statute is constitutional. See Moore, 499 S.E.2d
at 636. And agencies by interpretation cannot enlarge the scope of or change a properly enacted statute. See
North Fulton Med. Ctr. v. Stephenson, 269 Ga. 540, 501 S.E.2d 798, 801 (1998).

                                                       4
        In this case, the state law—the statute—has remained unchanged. The new Board regulation denying

parole opportunities did not change the law. The new regulation was a correction. The new regulation

corrected an erroneous interpretation by the Board of a statute which clearly and without ambiguity had

always precluded the grant of parole to recidivists.

         A new regulation which just corrects an erroneous interpretation (even if the error was a reasonable

one)11 by an agency of a clear pre-existing statute does not violate the Ex Post Facto Clause. The Clause

"does not prohibit ... the correction of a misapplied existing law which disadvantages one in reliance on its

continued misapplication." Stephens v. Thomas, 19 F.3d 498, 500 (10th Cir.1994) (concluding no ex post

facto violation when department of corrections stopped applying good-time-credit statute to prisoners with

life sentences after state attorney general informed department that this application was clearly prohibited by

statute); accord Cortinas v. United States Parole Comm'n, 938 F.2d 43, 46 (5th Cir.1991) (determining new

regulation reflecting proper interpretation of statute did not violate Clause, and agreeing with Second Circuit

that agency's misinterpretation cannot support an ex post facto claim); Glenn v. Johnson, 761 F.2d 192, 194-

95 (4th Cir.1985) (concluding that parole commission's change of regulation to conform with opinion of the

state attorney general was no change in the law but merely a correction of an erroneous interpretation of the

law: the statute unambiguously precluded the old regulation); Caballery v. United States Parole Comm'n,

673 F.2d 43, 47 (2d Cir.1982) (holding no ex post facto claim where new regulation merely corrected a

practice by parole commission that was contrary to a preexisting statutory provision).

        The retroactive application of a new parole regulation to correct a prior erroneous interpretation of

a duly-enacted statute cannot support Plaintiffs' ex post facto claim. Therefore, the district court's grant of

summary judgment, determining that application of the new policy to Plaintiffs violated the Clause, was error.




  11
     Plaintiffs claim that a new interpretation of a statute by an agency can violate the Ex Post Facto Clause
if the previous interpretation was reasonable. See Knuck v. Wainwright, 759 F.2d 856, 858-59 (11th
Cir.1985). Again, Knuck is materially different: it concerned an interpretation of an ambiguous statutory
provision made under interpretive authority expressly delegated to the agency, which is not the case here.

                                                       5
                                          DUE PROCESS CLAUSE

         Plaintiffs also argue that the Georgia Supreme Court's decision in Freeman v. State, 264 Ga. 27, 440

S.E.2d 181 (1994)—limiting the Board's authority to grant parole—ultimately resulted in the Board's

elimination of Plaintiffs' parole eligibility and therefore penalizes individuals through an unforeseeable and

retroactive interpretation of state law in violation of the Due Process Clause. We do not think so.12

        Plaintiffs argue that the holding in Freeman was unforeseeable because it contravened prior legal

authority, including the Georgia constitutional provision on the power of the Board, prior judicial decisions

affirming the independent power of the Board, the prior opinions of the Attorney General, and the prior Board

rules and regulations. Plaintiffs argue this preexisting authority conclusively established that the Board had

independent power and the sole authority to grant parole; power and authority which could not be interfered

with by the legislative and judicial branches. Therefore, Plaintiffs say that the decision in Freeman was

unforeseeable in that it allowed a limitation on the Board's parole powers.

        The Supreme Court has said that an "unforeseeable state-court construction of a criminal statute"

applied retroactively can violate the Due Process Clause. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct.

1697, 1703, 12 L.Ed.2d 894 (1964); accord United States v. McQueen, 86 F.3d 180, 183 (11th Cir.1996) ("A

new judicial doctrine cannot be applied retroactively if it was an 'unexpected and indefensible' break from

the existing case law ....") (citation omitted).13 The Supreme Court has held judicial decisions to be

unforeseeable in two contexts: (1) if a criminal statute is narrow and precise on its face, a judicial expansion

of the criminal statute may be considered unforeseeable, see Bouie, 84 S.Ct. at 1701-02, and (2) a court


   12
     Though the court below did not reach this issue, it is a question of law, fully briefed and argued by the
parties in the district court and on appeal; so we can address it here. See Calloway v. Partners Nat'l Health
Plans, 986 F.2d 446, 449 n. 1 (11th Cir.1993).
   13
     We assume, without deciding, that the due process limitation applies in this case. But we see that the
circuits are not unanimous in this conclusion. See United States v. Newman, 203 F.3d 700, 702 (9th Cir.2000)
(noting that while some circuits have held that due process concerns are implicated by both after-the-fact
increases in punishment and ex post facto construction of substantive criminal statutes, the Ninth Circuit has
limited the due process application to the latter situation).

                                                       6
significantly departing from its own precedent may be unforeseeable. See Marks v. United States, 430 U.S.

188, 97 S.Ct. 990, 993-95, 51 L.Ed.2d 260 (1977).

            Plaintiffs rely on Bouie for their proposition that the Georgia Supreme Court's decision in Freeman

and the application of that decision in Moore—unduly and retroactively expanded the criminal law by

declaring laws limiting parole, like the one at issue in this case, to be constitutional—violates due process.

Bouie concerned a situation in which a court, by interpretation, had expanded a criminal statute beyond its

plain language.14 84 S.Ct. at 1700-01. But in the present case, the state court decided that a statute was

constitutional and meant what the express words said; the Georgia Supreme Court did not "interpret" the

statute to expand its criminal scope.15 See Thompson v. Nagle, 118 F.3d 1442, 1449 (11th Cir.1997) ("When


  14
    Bouie involved a South Carolina criminal trespass statute and the racial desegregation of the South. The
statute on its face prohibited "entry upon the lands of another ... after notice from the owner or tenant
prohibiting such entry." Bouie, 84 S.Ct. at 1700. Protestors, who were staging a sit-in at a restaurant—and
who, both parties agreed, had not received notice before entry or before they seated themselves in the
restaurant—were convicted under this statute. See id. The South Carolina Supreme Court upheld the
convictions, construing the statute to encompass "not only the act of entry ... after receiving notice not to
enter, but also the act of remaining ... after receiving notice to leave." Id. at 1701. The United States
Supreme Court reversed the convictions, stating that, because this reading was an unforeseeable and
retroactive expansion of a clear statute (and inconsistent with prior state supreme court readings of the
statute), its application to the protestors violated due process. See id. at 1703-04 ("Petitioners did not violate
the statute as it was written....").
       15
        In Moore, the Georgia Supreme Court reasoned this way: "[t]here has been no unforeseeable
enlargement of a criminal statute in the enforcement of O.C.G.A. § 17-10-7(c): the language of the statute
is clear and unmistakable in its command, and as noted above, it has never been found unconstitutional by
this court." Moore, 499 S.E.2d at 637.

                    The Georgia Supreme Court did not think its Freeman decision revolutionary:

                    The State argues that [the statute providing for life without parole] is unconstitutional and
                    violative of [the Georgia Constitution] because it imposes legislative restrictions on the
                    power of the Board of Pardons and Paroles to grant parole and thus violates the separation
                    of powers. This argument, too, is without merit. "The power to create crimes and to
                    prescribe punishment therefor is legislative." Johnson v. State, 169 Ga. 814, 817, 152 S.E.
                    76 (1930). The passage by the legislature of a statute providing for a sentence of life without
                    parole, like the passage of legislation establishing the death penalty, does not impinge on the
                    authority of the Board but, rather, renders the defendant ineligible for parole in the first
                    instance.


                                                         7
a court clarifies but does not alter the meaning of a criminal statute, the Ex Post Facto Clause is not

implicated."); see also Aponte v. Gomez, 993 F.2d 705, 708 (9th Cir.1993) ("[the state court] construed the

sentencing scheme in accordance with the principles of statutory construction and its conclusion is certainly

not 'unexpected' or 'indefensible.' "); Lustgarden v. Gunter, 966 F.2d 552, 554 (10th Cir.1992) (concluding

interpretation foreseeable because dictated by plain language of statute).

         Nor did the Georgia Supreme Court change or expand a law it had previously announced, or break

with its own precedent in declaring such laws to be constitutional limits on the Board's power.16 That lower

state courts had struck down a few other attempts to limit the Board's power17 or that the Attorney General

had issued an opinion stating that the statute was unconstitutional is not decisive.18 These opinions of others

do not deprive a state supreme court of its power to construe a statute finally.

         This principle is particularly true under Georgia law because the Supreme Court has exclusive

appellate jurisdiction to consider the constitutionality of a statute. See Ga. Const. art. VI, § VI, ¶ II; Burson

v. State, 183 Ga.App. 647, 359 S.E.2d 731, 732 (1987) (court of appeals has no authority to determine




         Freeman, 440 S.E.2d at 184.
   16
     Plaintiff argues that Freeman is inconsistent with a prior Georgia Supreme Court decision in Charron
v. State Bd. of Pardons and Paroles, 253 Ga. 274, 319 S.E.2d 453 (1984). That decision, not "disagreeing"
with the lower courts that an "independent" Board is envisioned by the Georgia Constitution, determined that
two statutes were constitutional because they only required the Board to notify counties before it considered
parole but did not affect the Board's consideration of parole. Id. at 455.
  17
     The appellate court decisions, which Plaintiffs cite, concerning the Board's power, did not construe this
statute. And, thus, did not decide the pertinent question. See, e.g., Stephens v. State, 207 Ga.App. 645, 428
S.E.2d 661, 663 (1993) (determining that Board has executive power concerning terms and condition of
paroles, thus judicial attempt to condition parole on waiver of Fourth Amendment rights was nullity).
    18
      As we stated, opinions of the Attorney General are, at most, persuasive authority. See Campbell v.
Poythress, 216 Ga.App. 834, 456 S.E.2d 110, 111 (1995). And the proffered deposition of the Board's
Director of Legal Services, in which he opines that the Freeman decision is "difficult to understand or
interpret and inconsistent with 40 years of practice and law" in Georgia, is not decisive and does not constrain
the Georgia Supreme Court either. Cf. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883, 890 (1947)
(stating that "determining the meaning of the [state] Constitution, which is binding on everyone, was the
exclusive function of the courts").

                                                       8
constitutionality of state statute).19 And these opinions from other entities do not make the Georgia Supreme

Court's decision unforeseeable; the Georgia Supreme Court had not previously ruled on the constitutionality

of this or similar statutes defining the limits of the Board's power.20 See McQueen, 86 F.3d at 184 (noting

that lower courts had rendered decisions later determined to be erroneous by a higher court does not violate

due process); see also Hamm v. Latessa, 72 F.3d 947, 955 (1st Cir.1995) ("[I]t would be unprincipled to

declare by federal fiat that the Due Process Clause broadly nullifies the Commonwealth's power to construe

and apply its laws correctly.").21 The Georgia Supreme Court upheld a statute which had been erroneously

interpreted by the Attorney General; this judicial act does not constitute an ex post facto violation of the Due

Process Clause. See Crowley v. Landon, 780 F.2d 440, 444 (4th Cir.1985).

         The Freeman decision neither expands the statute in question beyond its express terms nor contradicts

preexisting Georgia Supreme Court precedent on the scope of the Board's authority. We conclude that the

retroactive application of the Georgia Supreme Court's decision does not violate Due Process. To conclude

otherwise would, in effect, require us to assume that a state statute was unconstitutional because of a prior




   19
     See also Lerner v. Gill, 751 F.2d 450, 457 (1st Cir.1985) (no ex post facto violation, notwithstanding
contrary attorney general and parole board interpretation, because they could not deprive the state supreme
court of its right to construe a state statute authoritatively and were not exercising powers of their own to
legislate such matters: "the ex post facto clause does not give a prisoner a vested right to a favorable, but
erroneous, interpretation of the law").
    20
     Plaintiffs cite us no cases in which the Georgia Supreme Court held a statute to be unconstitutional
because it limited the Board's authority. And a validly imposed limitation on the Board's granting of parole
was not unheard of; in 1993, before the Freeman decision, the Board enacted a regulation refusing parole
consideration to persons sentenced to life without parole pursuant to a state statute enacted in 1993, which
allowed courts to sentence to life without parole. The Board did not treat this limitation as void.
   21
      Just because the Georgia Supreme Court had not provided a decision on the precise issue earlier (the
State did not pursue a ruling on the issue in the courts and a prisoner would not have challenged a favorable
parole rule) does not make the decision unforeseeable; the legal arguments were available. See Green v.
State, 244 Ga. 755, 262 S.E.2d 68, 69 (1979) (noting that merits of argument that this statute is
unconstitutional limit on the Board's power had never been decided). Nor does the amount of time that the
Board's erroneous interpretation was in place change our conclusion. See Lerner, 751 F.2d at 459 ("It is a
fact of life, ... that new laws are often not challenged and finally interpreted until a number of years go by.").


                                                        9
construction by state governmental bodies without the authority to declare law in this area. That the

erroneous interpretations were later declared invalid and corrected by the state supreme court does not entitle

Plaintiffs to the benefit of those mistaken interpretations.

                                               CONCLUSION

        In this case, the statute and the punishment it imposes have been unchanged since enactment in 1953;

the application of the statute to Plaintiffs does not violate Due Process or the Ex Post Facto Clause. The

district court improperly granted summary judgment for the Plaintiffs. The judgment of the district court is

VACATED and the case is REMANDED for further determinations consistent with this opinion.




                                                      10
