
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1999                                 RALPH C. HAMM, III,                                Petitioner, Appellant,                                          v.                    ARTHUR LATESSA, SUPERINTENDENT OF MCI, ET AL.,                               Respondents, Appellees.          No. 94-2018                                 RALPH C. HAMM, III,                                Petitioner, Appellee,                                          v.                    ARTHUR LATESSA, SUPERINTENDENT OF MCI, ET AL.,                               Respondents, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Walter Jay Skinner, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________               Daniel  S. Tarlow,  with whom  John F.  Tocci and  Glovsky &               _________________              ______________      _________          Associates were on brief, for petitioner.          __________               William  J.  Meade, Assistant  Attorney  General, with  whom               __________________          Scott   Harshbarger,   Attorney  General,   was  on   brief,  for          ___________________          respondents.                                 ____________________                                  December 28, 1995                                 ____________________                    SELYA, Circuit  Judge.  Petitioner Ralph  C. Hamm, III,                    SELYA, Circuit  Judge.                           ______________          is   currently  serving  two   concurrent,  parole-eligible  life          sentences in  a Massachusetts state  penitentiary.   He faces  an          additional twenty-six to forty years in prison from and after the          culmination  of  his life  sentences.   Hamm  solicits a  writ of          habeas corpus,  naming as  respondents the superintendent  of the          state   correctional   facility   where  he   is   confined,  the          Commissioner  of Correction,  and the  Parole Board  (hereinafter          collectively the respondent or  the Commonwealth), and contending          that  a   policy  implemented  by  the   Commonwealth  after  his          incarceration delayed his  eligibility for a parole  hearing.  In          his  estimation,  the  change  in policy  transgressed  both  due          process and  the ban on ex  post facto laws.   The district court          rejected the latter  claim but  granted the writ  on due  process          grounds and ordered, inter alia, a  nunc pro tunc parole hearing.                               _____ ____     ____ ___ ____                    The petitioner  appeals from both the  dismissal of his          ex post  facto claim and from  the limited grant of  relief.  The          Commonwealth cross-appeals  from the  due process ruling  and the          allowance  of  any  relief.    We  hold  that  the Commonwealth's                         ___          implementation  of  the challenged  policy  neither abridged  the          petitioner's rights under the Due Process Clause nor violated the          Ex Post Facto  Clause.   Hence, we reverse  the district  court's          order and dismiss the habeas application.          I.  BACKGROUND          I.  BACKGROUND                    We divide the introductory  section of our opinion into          five segments.                                          2                    A.  The Underlying Convictions and Sentences.                    A.  The Underlying Convictions and Sentences.                        ________________________________________                    These  appeals  have  their   genesis  in  events  that          occurred  over a quarter-century ago.  In 1969, following a bench          trial,  a  Massachusetts court  found  the  petitioner guilty  of          charges stemming from a brutal  attack and robbery that  occurred          the  previous year.    A more  complete  account of  the  crimes,          unnecessary  here,  is available  in  Commonwealth  v. Hamm,  471                                                ____________     ____          N.E.2d 416,  418-19 (Mass. App.  Ct. 1984)  (Hamm I).   The trial                                                       ______          court  sentenced petitioner  to  two concurrent,  parole-eligible          terms of life imprisonment for his convictions on counts of armed          robbery  and  assault with  intent to  rape, and  to a  series of          consecutive sentences  totalling sixty-eight to  eighty years  on          the other counts of conviction (including mayhem and assault with          intent to murder).  These consecutive sentences were to be served          "from and after" the  life sentences.1  The appeals  court, in an          unpublished  rescript,  reduced the  from-and-after  sentences to          twenty-six  to  forty  years   but  upheld  the  convictions  and          sentences in all other respects.                           B.  The Parole-Eligibility Statute.                         B.  The Parole-Eligibility Statute.                             ______________________________                    The   Massachusetts   statute   governing  the   parole          eligibility  of  convicts  serving  terms  of  life  imprisonment          provides (and substantially provided in 1968) that:                         Every prisoner who is serving a sentence                    for life in a correctional institution of the                    commonwealth  [with specified  exceptions not                    relevant here] shall be eligible  for parole,                                        ____________________               1Sacrificing  originality for  clarity,  we refer  herein to          this group of sentences as the "from-and-after sentences."                                          3                    and the parole board shall, within sixty days                    before  the expiration  of  fifteen years  of                    such  sentence,  conduct  a   public  hearing                    before the full membership.                    . . . .                         After such hearing the parole board may,                    by a vote of a majority of its members, grant                    to  such prisoner  a parole  permit to  be at                    liberty upon such terms and conditions as  it                    may prescribe  for the unexpired term  of his                    sentence.  If such permit is not granted, the                    parole  board  shall, at  least once  in each                    ensuing three year period, consider carefully                    and thoroughly the merits of each such case .                    . . .          Mass.  Gen. L.  ch. 127,    133A.   Until 1977,  the Commonwealth          considered inmates  who were not only serving  life sentences but          also  facing  the  grim  prospect  of overhanging  from-and-after          sentences as coming within the purview of section 133A.  Based on          that interpretation of the statute, the Commonwealth granted such          inmates  parole hearings  (for  possible parole  from their  life          sentences  into their  from-and-after  sentences)  once they  had          served  close  to fifteen  years.   Accordingly, after  the state          court sentenced Hamm, correctional officials advised him that the          parole-eligibility date referable to  his life sentences would be          November 28, 1983.2                           C.  The 1977 Aggregation Policy.                           C.  The 1977 Aggregation Policy.                               ___________________________                    In 1977,  the Commonwealth recast its interpretation of          section 133A.   The impetus for  change was  the decision of  the          Massachusetts  Supreme  Judicial  Court   (SJC)  in  Henschel  v.                                                               ________                                        ____________________               2The respondent  fixed the  parole-eligibility date in  1969          and informed the  petitioner of it  at that time.   It should  be          noted,  however, that,  giving  credit for  time served  awaiting          trial and  sentencing, the Commonwealth  deemed the  petitioner's          effective date of sentence to be November 29, 1968.                                          4          Commissioner  of   Correction,  330  N.E.2d  480   (Mass.  1975).          _____________________________          Henschel required the aggregation for parole-eligibility purposes          ________          of a prisoner's consecutive county house of correction  and state          institution  sentences.  See id.  at 483-85.   The SJC advanced a                                   ___ ___          thoughtful justification in support of aggregation:                    To  follow the  defendant's [non-aggregation]                    approach would require  the board  to make  a                    series  of decisions granting parole from one                    sentence to  the  next rather  than a  single                    decision  on   the   basis  of   one   parole                    eligibility  date for  all  sentences.    The                    former procedure makes little sense since the                    decision to  grant parole  is to be  based on                    whether the board  believes the prisoner  can                    live   freely   outside  of   prison  without                    violating the law.          Id. at 484.  The Commonwealth found this rationale to be  equally          ___          convincing in the context of making decisions to parole prisoners          serving life sentences into overhanging from-and-after sentences.          Consequently, it rethought its  earlier interpretation of section          133A and  revised its  policies regarding parole  eligibility for          certain classes of inmates,  including lifers who faced impending          from-and-after  sentences.    Under  the  neoteric  policy,  such          inmates were not regarded as falling under section 133A and would          no  longer  receive parole  hearings  at  the fifteen-year  mark;          instead,  the parole-ineligible  portion of  the  prisoner's life          sentence  (fifteen years)  would be  aggregated with  the parole-          ineligible portion of his from-and-after sentences to arrive at a          "real"  parole-eligibility date, that is to say, a single date at          which a favorable parole decision would  result in the prisoner's          actual release from  incarceration, not just his parole  from one                                          5          sentence into another.3   While this  paradigm was not  compelled          by the  holding in Henschel  (which did not  specifically address                             ________          the aggregation of life sentences with from-and-after sentences),          the   respondent  determined  that   the  new   arrangement  more          faithfully mirrored the tenets undergirding Henschel.                                                      ________                    In  1982   the year before Hamm would have received his          initial  section  133A  hearing under  the  former  policy    the          Commonwealth applied the  new policy to him and  recalculated his          parole-eligibility date.4  The  aggregation resulted in a single,                                        ____________________               3The document  explaining the new policy,  issued jointly by          the Department of Correction and the Parole Board, bore the title          "New Policies  and Practices  Regarding Aggregation of  `From and          After'  Sentences (Henschel  Decision)."  It states  in  relevant          part:                    [I]t has become  necessary to revise existing                    procedures and  policies covering aggregation                    of  "from  and   after"  (i.e.   consecutive)                    sentences  for  purposes of  computing parole                    eligibility and good conduct deductions.                    . . . .                    Life Sentences                    ______________                    Life sentences  on which  there is no  parole                    eligibility  . . .  cannot be aggregated with                    any  other  sentences for  parole eligibility                    purposes.   Life  sentences  which  do  carry                    parole eligibility  . . . will  be aggregated                                              ____                    with other sentences  for parole  eligibility                    purposes . . . .                4For much of  the life of this litigation,  the Commonwealth          stubbornly insisted that it  aggregated Hamm's sentences pursuant          to  a  different, long-established  policy,  and  that its  newly          contrived  1977  policy  did  not  effect  any  change  regarding          prisoners such as  Hamm.   Dissatisfied with the  record on  this          point,  we  retained  appellate  jurisdiction  and  remanded  for          factfinding.  The district court conducted an evidentiary hearing          and  found, on the basis  of the petitioner's  prison records and          testimony from  former and current  counsel to the  Parole Board,          that prior to 1977  the respondent did in fact  follow a practice          of  providing  fifteen-year  parole hearings  to  life  prisoners                                          6          "real" parole-eligibility  date of  November 2001.5   Though this          structural change obviated the need  for the petitioner to obtain          two parole permits to secure his release in  2001, he claims that          it also impermissibly  deprived him of an opportunity for release          at an earlier date.                    The petitioner's thesis runs along the following lines.          Massachusetts law affords  prisoners serving indeterminate  terms          of  years various  ways to  reduce their  sentences.   These same          options,  Hamm claims,  are not  available to  prisoners who  are          serving life sentences.   Thus, if he  had been paroled  into his          (indeterminate)  from-and-after sentences in  1983, he could have          availed himself  of these  opportunities and possibly  could have          gained his freedom  earlier than  2001.  Under  the 1977  policy,          however, he effectively remains  on "life sentence status" during          the  full term  of  his immurement  and,  therefore, cannot  take          advantage of these early-release opportunities, which include:                    (1) Establishing  a "Wrap-up" Date.   Once paroled into                        ______________________________          his  from-and-after sentences,  the petitioner  would immediately                                        ____________________          facing  from-and-after sentences.   The Commonwealth  now accepts          this  finding  and has  recanted its  assertion  that it  did not          retroactively subject the petitioner to a new policy.               5The exact manner  in which the  respondent arrived at  this          date is inscrutable.  The  underlying calculation is not revealed          in the court papers  and  Hamm's post-1982 prison  records (which          from time to time have indicated various parole-eligibility dates          ranging from  1999 to 2001) are  little help.  We  need not probe          the point too  deeply, however, inasmuch as  the Commonwealth has          not  disputed  the  petitioner's  contention  that   his  parole-          eligibility date under the 1977 aggregation policy is in November          of 2001.  Like the district court,  we will assume that to be the          correct date.                                          7          acquire, subject  to divestiture  for misconduct,  statutory good          time  under Mass. Gen. L. ch. 127,   129.  This "good time" would          be based on  the top  end of his  indeterminate sentences  (forty          years) and would,  the petitioner claims,  amount to sixteen  and          one-half years.  He could  earn additional good-time credits  (up          to  seven and  one-half  days  per  month)  by  participating  in          educational  and  vocational programs.6   See  Mass. Gen.  L. ch.                                                    ___          127,    129D.  Moreover, the sentencing court (both initially and          on  resentencing) gave the petitioner 210 days credit on his four          from-and-after  sentences for  pre-sentence incarceration.   Hamm          theorizes that this credit applies separately to each of his four          from-and-after  sentences, yielding  an  aggregate credit  of two          years and four months for jail time.                    We  assume arguendo  the accuracy  of  the petitioner's                               ________          figures without  independently verifying them.7   These potential          reductions, totalling twenty-three years and one month, would, if          garnered,  enable him to leave prison without undergoing a second          parole hearing after serving just sixteen years and eleven months                                        ____________________               6Good-time credits that a convict earns while serving a life          sentence  apparently  do not  reduce  his  life  sentence or  his          parole-ineligible term; we are told that they are simply "banked"          and only become useful to him in the event that his life sentence          is  commuted to a  term of years.   Upon parole  into a from-and-          after  sentence, the  convict would  lose his  "banked" good-time          credits.               7The  record is tenebrous as  to many of  Hamm's claims, and          some of them,  e.g., the claim  of an entitlement  to an  840-day          credit    for   pre-sentence   incarceration,    strike   us   as          counterintuitive.                                          8          on his  from-and-after sentences.8  Hence, if  the petitioner had          been  paroled into  his from-and-after  sentences in  November of          1983, he might have  established a wrap-up date in  October 2000,          thus bringing about his release more than a year earlier than his          current aggregated parole-eligibility date.                    (2)   Early  Parole.   Once paroled into  his from-and-                          _____________          after  sentences, the  petitioner could  also reduce  the parole-          ineligibility period  of these  sentences, which  otherwise would          remain at seventeen  years and  four months.   First, he  asserts          that he would be  credited automatically with the same  two years          and four  months  of jail  time.   But  see  note 7,  supra,  and                                             ___  ___           _____          accompanying  text.     Second,   his  earned  good   time  would          effectively count  as time  served  toward his  parole-ineligible          term.  On this basis, he argues that if he had gained parole from          his life sentences in  1983 and earned section 129D  credits from          then on  at the  maximum rate,  he might  have been  eligible for          "real" parole as early as November of 1995.9                    (3)     Special   Parole.     The  petitioner's   final                            ________________                                        ____________________               8This optimistic calculation assumes,  inter alia, that Hamm                                                      _____ ____          would  earn section 129D good  time at the  maximum possible rate          over  the  duration of  his  from-and-after sentences.    If Hamm          serves  sixteen years  and  eleven months  of his  from-and-after          sentences on his best behavior, he could theoretically accumulate          1,522.5 days of earned good time.               9The petitioner arrives at this date by taking the following          route:  208 months (Hamm's statutory parole-ineligible term) less          28  months (pre-sentence  jail credits)  less 36  months (maximum          possible section 129D credits during  first twelve years of from-          and-after sentences) = 144 months.  If Hamm had begun serving his          from-and-after sentences  in November of  1983, and if  his other          assumptions proved  true,  he had  a  possibility of  securing  a          parole hearing in November, 1995.                                          9          opportunity-related  theory suggests that aggregation has already          deprived   him   of   the  possibility   of   obtaining   special          consideration parole  as early as  1989, after serving  just one-          third of his from-and-after minimum sentences, less jail credits.          See   Hamm v. Commissioner  of Correction, 564  N.E.2d 1032, 1033          ___   ____    ___________________________          n.5  (Mass. App.  Ct.) (Hamm  II), rev.  denied, 566  N.E.2d 1131                                  ________   ____  ______          (Mass. 1991).   The  respondent effectively parries  this thrust,          stating that Hamm may apply for this type of parole consideration          even under the 1977  aggregation policy.  Finding no  evidence in          the record that  the petitioner has made  an effort to  apply for          special consideration parole, or that  the Parole Board would not          consider  his request,  we cannot  conclude that  aggregation has          deprived the petitioner of  this benefit.  See  id.  Accordingly,                                                     ___ ____          we do not further discuss this aspect of Hamm's claim of harm.                                 D.  The 1988 Policy.                                 D.  The 1988 Policy.                                     _______________                    The   Commonwealth  revisited   its  parole-eligibility          policy anent life  prisoners facing  from-and-after sentences  in          1988,  and resumed  the practice  of providing  them with  parole          hearings  at  or near  the fifteen-year  mark.   A  1990 document          prepared   by  the   respondent,  entitled   "Parole  Eligibility          Regulations, Policies, Procedures," explains that parole-eligible          life sentences are an exception to the general aggregation policy          "because  of the statutory  requirement that a  parole hearing be          held after a definite  period of time."   The about-face did  not          ameliorate  the petitioner's  professed  plight;  the  respondent          declined  to  apply this  policy  retroactively  because such  an                                          10          application, it  feared, might  hurt prisoners  approaching their          aggregated  parole-eligibility  dates.    Thus,   Hamm's  parole-          eligibility   date   was  not   recalculated,   and   he  remains          incarcerated with no parole hearing on the horizon until November          of 2001.                             E.  The Habeas Proceedings.                             E.  The Habeas Proceedings.                                 ______________________                    The  petitioner initiated  state habeas  proceedings in          1990,  arguing,  among  other  things,  that  the  Commonwealth's          failure to provide him with a parole hearing in 1983 deprived him          of his right  to due process of law, and that the 1977 policy, as          applied to him, violated  the prohibition on ex post  facto laws.          A  state superior  court  judge dismissed  the petition,  and the          Massachusetts   Appeals  Court  upheld  the  aggregation  of  the          petitioner's   sentences  for  purposes   of  determining  parole          eligibility.10  See  Hamm II, 564 N.E. 2d at  1033-34.  After the                          ___  _______          SJC  denied further  appellate review,  the petitioner  initiated          federal habeas proceedings.                                        ____________________               10The court appeared to misconstrue the petitioner's ex post          facto argument; rather than focusing on whether the 1977  policy,          as applied,  differed materially  from the  policy  in effect  in          1968, the court  focused on the  1988 policy and ruled  that Hamm          was not entitled to enjoy its benefits.  On this point, the court          wrote:                    The plaintiff's situation does not present an                    ex post facto issue.  The rules have not been                    changed  adversely  to  him.     Rather,  the                    reverse has occurred:  after his offenses and                    sentencing, a rule  has changed  in a  manner                    that, if  applied to  him, would work  to his                    advantage    or  so the  plaintiff  seems  to                    think.          Hamm II, 564 N.E.2d at 1034-35.          _______                                          11                    The district  court found that the  Commonwealth had in          fact applied a change  in the law to petitioner, but it concluded          that the change  did not harm him and therefore  posed no ex post          facto  problem.  On the due process  claim, the court took a more          receptive stance.  It interpreted section 133A  as mandating that          petitioner receive a parole  hearing on his life sentences  after          fifteen  years,  and ruled  that  the  Commonwealth's failure  to          provide him  a hearing  in that  time frame  deprived him  of due          process.   The court ordered the state  to convene such a hearing          nunc  pro tunc, and to continue convening such hearings at three-          ____  ___ ____          year intervals should parole be denied.  See Hamm v. Latessa, No.                                                   ___ ____    _______          91-10667-WJS, slip op. at 14 (D. Mass. May 18, 1994) (Hamm  III).                                                                _________          The  court  also decreed  that  if,  despite  the  serial  parole          hearings, the petitioner remained in custody beyond 2001, then in          such event, the 1977  policy should be applied to  him as written          from that date forward.  See id.                                   ___ ___          II.  ANALYSIS          II.  ANALYSIS                    We  bifurcate  our  analysis,  examining  each  of  the          petitioner's constitutional claims under a separate heading.                              A.  The Due Process Claim.                              A.  The Due Process Claim.                                  _____________________                    The district  court found that section  133A applied to          the  petitioner  and afforded  him  a  liberty  interest  in  the          convening of a parole hearing in 1983 (as he neared the  fifteen-          year  mark of his life sentences).   The court based this finding          on  its  interpretation of  section  133A,  emphasizing that  the          statute  is written in  mandatory and unequivocal  terms   "Every                                          12          prisoner who  is serving  a  sentence for  life .  .  . shall  be                                                                  _____          eligible for  parole, and  the parole  board shall,  within sixty                                                       _____          days before  the expiration of  fifteen years  of such  sentence,          conduct a public hearing . . . ." (emphasis supplied)   and makes          no exception on  its face for life prisoners who  also have from-          and-after sentences  in prospect.   To  buttress  this view,  the          court noted that the aggregation policy expressed in section 133A          could not apply to  the petitioner because his life  sentences by          definition contain no "minimum" sentence, and therefore cannot be          aggregated with his from-and-after sentences  to determine parole          eligibility.   Building on this  foundation, the court  held that          the  petitioner   had  an  unequivocal  statutory   right  to  be          considered for  parole into his from-and-after  sentences once he          had  served fifteen  years of  his life  sentences, and  that the          Commonwealth  unconstitutionally  deprived  him of  this  liberty          interest  by aggregating  his life  sentences with  his from-and-          after sentences and  by failing  to grant him  an initial  parole          hearing in 1983.                    We  cannot accept  the lower court's  analysis.   It is          settled  that a  statute  providing for  early  release or  other          benefits under  stipulated conditions  may sometimes confer  upon          prison inmates a  liberty interest protected  by the Due  Process          Clause.11  See Board  of Pardons v.  Allen, 482 U.S. 369,  373-81                     ___ _________________     _____                                        ____________________               11This is so  even though, as a general rule,  a convict has          "no  constitutional or inherent right  . . .  to be conditionally          released before the expiration of a valid sentence."   Greenholtz                                                                 __________          v.  Nebraska Penal Inmates, 442 U.S. 1, 7 (1979).  The Greenholtz              ______________________                             __________          generality    like virtually  all generalities    admits of  some                                          13          (1987); Greenholtz  v. Nebraska  Penal  Inmates, 442  U.S. 1,  12                  __________     ________________________          (1979);  Wolff v. McDonnel, 418 U.S. 539, 556-72 (1974); see also                   _____    ________                               ___ ____          Kentucky  Dept. of Corrections v. Thompson,  490 U.S. 454, 461-62          ______________________________    ________          (1989)  (restating  principle and  citing  cases  but finding  no          liberty  interest   created   by  state   regulations   governing          visitation).   At the time  the district court  issued its order,          constitutional  doctrine suggested  that a  state creates  such a          liberty interest  "by  establishing `substantive  predicates'  to          govern official decision-making . .  . and, further, by mandating          the  outcome to  be  reached upon  a  finding that  the  relevant          criteria  have been  met."   Thompson, 490  U.S. at  462 (quoting                                       ________          Hewitt  v.  Helms,  459  U.S.  460,  472  (1983),   and  omitting          ______      _____          citation).   The  statute at  issue in  Allen, for  example, used                                                  _____          "mandatory  language (`shall')  to `creat[e]  a  presumption that          parole release  will be granted' when the designated findings are          made."  Allen, 482  U.S. at 377-78 (quoting Greenholtz,  442 U.S.                  _____                               __________          at 12) (alterations in original).                    In recent years, the tectonic  plates have shifted.  In          Sandin  v. Conner, 115 S. Ct. 2293 (1995), the Justices explained          ______     ______          that, rather than relying on the presence or absence of mandatory          language in determining whether a statute or regulation confers a          liberty interest, courts should focus their inquiry on the nature          of the interest allegedly created by the state.  See id. at 2297-                                                           ___ ___          3000.  State-created liberty interests "will be generally limited          to freedom from restraint which, while not exceeding the sentence                                        ____________________          exceptions.                                          14          in such an unexpected manner as to give rise to protection by the          Due Process Clause  of its  own force .  . . nonetheless  imposes          atypical and  significant hardship on  the inmate in  relation to          the ordinary incidents of  prison life."  Id. at  2300 (citations                                                    ___          omitted).                    While  the question  of whether  a state law  creates a          liberty interest protected by  the Due Process Clause  is clearly          one of  federal constitutional  law, the preliminary  question of          parsing  the state law to  determine its substance  is not within          the primary  domain of  a federal habeas  court.  See  Estelle v.                                                            ___  _______          McGuire, 502 U.S. 62, 67-68 (1991).  Federal courts "are bound by          _______          a  State's  interpretation  of  its  own  statute."    Garner  v.                                                                 ______          Louisiana, 368 U.S.  157, 166 (1961).  Particularly relevant here          _________          is Hebert  v.  Louisiana, 272  U.S.  312 (1926).   In  Hebert,  a             ______      _________                               ______          convicted  defendant  claimed  that  a  state  court's  incorrect          construction of state law led to the imposition of a more onerous          sentence  and thereby violated the Due Process Clause.  The Court          rejected that claim, stating:                    Whether state statutes shall be construed one                    way or another is a state question, the final                    decision  of which  rests with the  courts of                    the State.  The due process  of law clause in                    the Fourteenth Amendment does not take up the                    statutes of the several States and  make them                    the  test of  what it  requires; nor  does it                    enable this Court to revise the decisions  of                    the state courts on questions of state law.          Id. at 316.  The rule, then, is that a federal habeas court  will          ___          not  disturb the  state  courts' construction  or application  of          state  law unless  it  can be  shown  that such  construction  or                                          15          application offends the Constitution or some (applicable) federal          statute.   See Bowser  v. Boggs,  20 F.3d  1060, 1065 (10th  Cir.                     ___ ______     _____          1994); Smith v. McCotter, 786 F.2d 697, 700  (5th Cir. 1986); cf.                 _____    ________                                      ___          Martinez v. California, 444 U.S. 277, 282 (1980) (explaining that          ________    __________          a state's  interest in fashioning its  own rules of state  law is          paramount to any  federal interest except  protecting individuals                                             ______          from state action that is wholly arbitrary and irrational).                    Given  the  clearly  demarcated  boundaries  of federal          habeas review, the proper function of the court below was  not to          second-guess the  state court  as to what  substantive guarantees          the Commonwealth's statutory and regulatory mosaic provided under          the particular  circumstances, but, rather,  simply to  determine          whether the respondent's application of its parole scheme, deemed          lawful  by the state's  courts, violated the  Due Process Clause.          The  district court set out to accomplish the former task instead          of the latter.  In so doing, it erred.                    Here,  a  Massachusetts state  court has  already ruled          that section 133A, as it read  both in 1968 and 1983, conveyed no          right  to  a  fifteen-year   hearing,  and,  moreover,  that  the          respondent's  aggregation of  Hamm's sentences was  a permissible          policy notwithstanding any contrary signposts in the text  of the          state  statute.  See Hamm II, 564  N.E.2d at 1033-34.  We believe                           ___ _______          that we are duty bound to follow this authoritative exposition of          state  law and,  concomitantly,  to reject  the district  court's                                          16          impromptu interpretation  of state law.12  See  McGuire, 502 U.S.                                                     ___  _______          at 67-68; Garner, 368 U.S. at 166.                    ______                    We  have  considered   and  rejected  the  petitioner's          argument  that  the  state  appellate  court's  decision  is  "so          inconsistent  with the  statute's language  and history  that the          state court  decision itself  [comprises] a wholly  arbitrary and          irrational  action  in  violation of  due  process."   Ellard  v.                                                                 ______          Alabama Bd. of  Pardons and Paroles, 824 F.2d 937,  944 n.7 (11th          ___________________________________          Cir. 1987) (citation and internal quotation marks omitted), cert.                                                                      _____          denied, 485 U.S. 981 (1988).   A federal court must not  exercise          ______          the  raw  power to  strike down  state laws  in  the name  of the          Constitution with too much gusto.  Section 133A is silent on  the          parole   eligibility  of  life  prisoners  facing  from-and-after                                        ____________________               12We  reach this  conclusion cognizant that  what we  deem a          controlling state court interpretation of state law emanated from          an intermediate  appellate court.   Intermediate appellate  court          decisions  "are trustworthy  data  for  ascertaining state  law,"          Losacco v. F.D. Rich  Constr. Co., 992 F.2d 382, 384  (1st Cir.),          _______    ______________________          cert. denied, 114 S. Ct. 324 (1993), and, in the absence of other          _____ ______          telltales indicating that the state's highest tribunal would have          ruled otherwise, we believe  it is prudent to accept  the appeals          court's  interpretation as  authoritative.   See, e.g.,  Fidelity                                                       ___  ____   ________          Union  Trust Co.  v.  Field, 311  U.S.  169, 177-78  (1940)  ("An          ________________      _____          intermediate state  court in declaring and applying the state law          is acting  as an organ of the State and its determination, in the          absence of more  convincing evidence  of what the  state law  is,          should  be  followed  by a  federal  court  in  deciding a  state          question.").                    The respondent's  1988 about-face  and its return  to a          non-aggregation  policy  for  life  inmates does  not  suggest  a          different outcome.   Given the  language of the  statute and  the          discretion reposed in the Parole Board, it is entirely  plausible          that   both  the   1977   and  1988   policies  are   permissible          interpretations of  state law.   Cf. Strickland  v. Commissioner,                                           ___ __________     _____________          Me. Dept. of Human Servs., 48 F.3d 12,  17-18 (1st Cir.) (holding          _________________________          that an agency's rule  may receive the usual degree  of deference          even  when it represents  a "sharp departure  from a longstanding          prior interpretation"), cert. denied, 116 S. Ct. 145 (1995).                                  _____ ______                                          17          sentences; a Massachusetts  court had never  before ruled on  the          issue: and the appeals court based its holding on Henschel, which                                                            ________          provided  a  defensible rationale  for  an  aggregation policy.13          Under these circumstances, it 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.          See Lerner v. Gill, 751  F.2d 450, 459 (1st Cir.),  cert. denied,          ___ ______    ____                                  _____ ______          472 U.S. 1010 (1985).                    The  petitioner has  also  asserted  that his  fourteen          years  of state-induced  reliance  on a  prospective 1983  parole          hearing, followed by the state's abrupt shift in policy, deprived          him of due process.  In mounting this challenge, he embraces  our          decisions  in Lerner and in DeWitt v.  Ventetuolo, 6 F.3d 32 (1st                        ______        ______     __________          Cir. 1993), cert. denied, 114  S. Ct. 1542 (1994).  Hamm's  ardor                      _____ ______          is mislaid.   Those cases  addressed the power  of a state  court          retroactively  to correct  an  erroneous sentence  or a  mistaken          interpretation  of state  law.   See  DeWitt,  6 F.3d  at  34-35;                                           ___  ______          Lerner,  751 F.2d  at 458-59.   However,  the calculation  of the          ______          petitioner's   original   parole-eligibility    date   was    not          "incorrect,"  so  he arguably  possessed  a  greater interest  in          seeing  it  carried  out  than  would  a  prisoner  who  was  the          beneficiary  of   a  botched  calculation.     Nevertheless,  the                                        ____________________               13Henschel supports the  view that,  since parole  decisions                 ________          are premised on whether  the Parole Board believes a  convict can          live outside prison without behaving in an antisocial manner, the          Parole Board should not normally be required to make a  series of          decisions paroling a convict  from one sentence to another.   See                                                                        ___          Henschel, 330 N.E.2d at 484.          ________                                          18          Lerner/DeWitt   line  of      cases  does   not  invalidate   the          ______ ______          Commonwealth's actions.  We explain briefly.                    Though we  observed in Lerner,  751 F.2d  at 458,  that                                           ______          "unforeseeable  changes .  .  .  made  after  the  passage  of  a          substantial  period  of  time  may, in  some  presumably  extreme          circumstances, be fundamentally unfair and hence violative of due          process even if  designed to correct  an illegal sentence,"  this          observation is  inapposite here.  In  the first place, we  do not          think  that   the  Massachusetts   Appeals  Court   decision  was          unforeseeable;  as stated  above, the statute  was silent  on the          precise situation,  there was no  decisional law directly  on the                                        __          point, and Henschel adumbrated the result reached in Hamm II.  In                     ________                                  _______          the second place,  a convict must show special prejudice stemming          from a changed interpretation.   See DeWitt, 6 F.3d at 35.   This                                           ___ ______          requisite showing  must consist  of something more  tangible than          merely demonstrating that "hopes were raised  only to be dashed."          Lerner, 751  F.2d at 459.   Hamm has not  suffered prejudice even          ______          remotely approaching  that  sustained by  Lerner,  whose  parole-          ineligibility period was extended from ten years to twenty  years          after he had (1) undergone two parole hearings, (2) moved  into a          minimum-security facility  and accepted other privileges, and (3)          transported his family to another state and caused them to invest          in  a business to create  an employment opportunity  for him, see                                                                        ___          id.  at 453    to  whom we  denied relief  under the  Due Process          ___          Clause, see id. at 459.                  ___ ___                    In this case, all roads lead to Rome.  We hold that the                                          19          Commonwealth did  not infract  the petitioner's rights  under the          Due Process Clause when it failed to provide him a parole hearing          in  1983.   The  administrative scheme  in  force at  that  time,          approved  as lawful by a  state appellate court,  did not mandate          that petitioner receive a parole hearing after fifteen years.  In          ruling to the contrary, the district court erred.                             B.  The Ex Post Facto Claim.                             B.  The Ex Post Facto Claim.                                 _______________________                    Article  1,   10 of the Constitution ("No State shall .          . . pass  any . . .  ex post facto Law") has  been interpreted to          forbid the enactment of                     any statute which punishes  as a crime an act                    previously committed, which was innocent when                    done;   which   makes  more   burdensome  the                    punishment for a crime, after its commission,                    or which deprives  one charged with  crime of                    any defense available according to law at the                    time when the act was committed . . . .          Beazell v. Ohio, 269 U.S. 167, 169-70 (1925); see also California          _______    ____                               ___ ____ __________          Dept. of Corrections  v. Morales,  115 S. Ct.  1597, 1601  (1995)          ____________________     _______          (stating that  "the Clause  is aimed at  laws that  retroactively          alter the  definition of  crimes or  increase the  punishment for          criminal acts") (citation and internal quotation marks  omitted);          Collins v. Youngblood, 497 U.S.  37, 42 (1990) (quoting Beazell).          _______    __________                                   _______          Petitioner asseverates that, by depriving him of opportunities to          obtain his  release  earlier  than November  of  2001,  the  1977          aggregation policy  made his  punishment more burdensome  and is,          therefore, an  impermissible ex post facto law.  The Commonwealth          demurs.  In its view, the 1977  policy is not a "law" subject  to          the  ex post facto proscription, and in all events, the resultant                                          20          aggregation  did  not   increase  the  petitioner's   punishment.          Because we  agree with  the Commonwealth's second  contention, we          need  not decide the thorny  question of whether  the 1977 policy          comprised a "law" subject to ex post facto analysis.14                    In line  with the  foregoing, we assume  for argument's          sake,  but do  not  decide,  that  the  1977  aggregation  policy          constituted a regulation possessing the full  force and effect of          law, and  that it is therefore  subject to analysis under  the Ex          Post Facto Clause.   This  assumption brings us  to the  decisive          question:   Does the 1977  policy, as applied  to the petitioner,          infringe  the constitutional proscription  against ex  post facto          laws?                                        ____________________               14We  note in passing  that, although the  Supreme Court has          not addressed the question of whether an administrative policy or          regulation can be  an ex post facto law, a  number of courts have          held that binding administrative regulations, as opposed to those          that serve merely as guidelines for discretionary decisionmaking,          are laws subject to ex post  facto analysis.  See, e.g., Akins v.                                                        ___  ____  _____          Snow,  922 F.2d 1558, 1561 (11th Cir. 1991) (holding that Georgia          ____          parole board's new regulation  promulgated pursuant to  delegated          legislative power  that  changed period  between inmate's  parole          hearings  from one year  to eight years  was a law  subject to ex          post  facto  analysis),  cert.  denied,  501  U.S.  1260  (1991);                                   _____  ______          Rodriguez  v. United States Parole Comm'n, 594 F.2d 170, 174 (7th          _________     ___________________________          Cir. 1979)  (deeming a  new regulation  that eliminated  a parole          hearing after one-third of a prisoner's sentence "tantamount to a          statute" for  ex post facto  purposes); Love  v. Fitzharris,  460                                                  ____     __________          F.2d   382,  385  (9th   Cir.  1972)  (holding   that  a  state's          recalculation of a prisoner's parole-eligibility date under a new          interpretation  of the  governing statutes  violated the  Ex Post          Facto  Clause because  the state  had changed  its interpretation          midstream), vacated as moot, 409 U.S. 1100 (1973).  There are, of                      _______ __ ____          course, cases   mostly  involving the federal Parole Commission's          guidelines    that can  be read as  holding the other  way.  See,                                                                       ___          e.g., Kelly v.  Southerland, 967  F.2d 1531,  1532-33 (11th  Cir.          ____  _____     ___________          1992);  Inglese v. United States Parole Comm'n, 768 F.2d 932, 936                  _______    ___________________________          (7th Cir.  1985).  We see nothing to be gained from entering this          thicket without a compelling need to do so.                                           21                    It is a  universal truth that, for a  law to offend the          Ex Post Facto  Clause, it  must be "more  onerous than the  prior          law."   Dobbert  v. Florida,  432  U.S.  282, 294  (1977).    The                  _______     _______          prescribed inquiry demands that  we compare the new law  with the          old  in its  totality  to ascertain  "if the  new  may be  fairly          characterized as more onerous."  Id.  The inquiry must be carried                                           ___          out in practical, as opposed to purely theoretical, terms; the ex          post facto prohibition does not foreclose every change in the law          that  possesses some  imaginable risk  of adversely  affecting an          inmate's punishment.   See Morales, 115  S. Ct. at 1602.   In the                                 ___ _______          last analysis, "the question of what legislative adjustments will          be  held   to  be  of   sufficient  moment   to  transgress   the          constitutional prohibition must be  a matter of degree."   Id. at                                                                     ___          1603.                    There is  no mechanical  formula for  identifying which          legislative  changes  have  a  sufficiently  profound  impact  on          substantive  crimes  or punishments  to cross  the constitutional          line and which do not.  Consequently, courts must determine, case          by  case,  whether  a  particular  change  in  the  governing law          "produces  a  sufficient  risk   of  increasing  the  measure  of          punishment attached to  the covered crimes."  Id.   If so, the Ex                                                        ___          Post Facto Clause comes into play.  See Hill v.  Jackson, 64 F.3d                                              ___ ____     _______          163, 167-170 (4th Cir. 1995).                    Morales  is  the touchstone  of  modern  ex post  facto                    _______          jurisprudence.  There, the Justices examined a state statute that          permitted parole boards to  defer parole suitability hearings for                                          22          up  to  three  years  for  double  murderers  and  certain  other          prisoners   if  the   board  specifically   found  that   it  was          unreasonable to  expect that parole  would be granted  during the          intervening years.   The Court concluded that the statute created          "only  the   most  speculative  and   attenuated  possibility  of          producing  the prohibited  effect  of increasing  the measure  of          punishment for covered crimes,"  and held that these "conjectural          effects" were insufficient  to animate the Ex Post  Facto Clause.          Morales,  115 S.  Ct. at  1603 (footnote  and internal  citations          _______          omitted).                    Buttressing  its  conclusion,   the  Court   identified          several  aspects of  the  statute that  neutralized  the risk  of          increasing the measure of punishment.  First, the statute applied          only to "a class of prisoners for whom  the likelihood of release          on parole  is quite remote."   Id. at 1603.   Second, the statute                                         ___          cabined the parole board's  discretion by requiring it to  make a          specific  finding that a  particular prisoner was  unlikely to be          paroled.  See  id.  Third, the statute only  applied to those who                    ___  ___          were  denied  parole  eligibility  the first  time  around,  thus          restricting  the affected class to those least likely to be found          suitable  for parole.    See id.    Finally, though  the  statute                                   ___ ___          addressed the frequency of suitability hearings, it empowered the          board to "tailor the frequency of subsequent suitability hearings          to the particular circumstances of the individual prisoner."  Id.                                                                        ___          The Court also noted  that "the possibility of  immediate release          after a finding of suitability for parole is largely theoretical;                                          23          in  many cases, the prisoner's parole release date comes at least          several  years  after a  finding  of  suitability," and  so  "the          practical effect  of a hearing postponement  is not significant."          Id. (citation and internal quotation marks omitted).          ___                    At bottom, Morales is about  the risk or likelihood  of                               _______          harm:  the Court upheld the California statute largely because it          found the risk of increased punishment posed by the new law to be          speculative and,  at any  rate, to fall  within acceptably  small          boundaries.15     Viewed  against  this  backdrop,   Hamm's  case          founders.  Though  the parole scheme in  effect in 1968  may have          afforded him the possibility  of terminating his incarceration as          early as 1995 if a series of events materialized, it seems highly          unlikely  that these  events  would  have  come  to  pass.    The          likelihood of harm, therefore, is tiny.  And,  moreover, it is at          least   equally  possible   that,  because   of  the   structural          differences  imposed  by the  two  policies, Hamm  may  well have          languished in prison longer  under the old scheme than  under the          new.     On  balance,  then,   it  is  virtually   impossible  to                                        ____________________               15The dissent strongly suggests  that Morales stands for the                                                     _______          bright-line  proposition  that  any  action  which  substantially          delays,  or  deprives a  prisoner of,  an initial  parole hearing          works  a per  se violation  of  the Ex  Post Facto  Clause.   The                   ___  __          Morales Court rejected a  similar argument, emphasizing that such          _______          an  "arbitrary line has absolutely  no basis in the Constitution.          If  a delay in parole hearings  raises ex post facto concerns, it                                                 __ ____ _____          is because that delay effectively increases a  prisoner's term of          confinement, and  not because the hearing  itself has independent          constitutional significance."  Morales,  115 S. Ct. at 1603  n.4.                                         _______          The  dissent's   mechanical  approach   not  only  ignores   this          admonition but also overlooks Morales's central  holding, namely,                                        _______          that a proper  ex post facto inquiry must focus  on the risk that          the   prisoner  will  be  subject  to  an  increased  measure  of          punishment.                                          24          prognosticate the risk that  the petitioner may be released  at a          later date because  the 1977 policy rather  than its predecessor,          controls in his case.                      Under   the  original  policy,  unless  the  petitioner          managed to  obtain  parole in  1983  and thereafter  amassed  all          possible credits, he would still have to be paroled a second time          in order to be released  as early as 1995, or,  alternatively, to          garner every conceivable credit in order to attain a wrap-up date          in  October  of 2000.    The record  is  bereft  of any  evidence          suggesting that  Hamm would  probably achieve prompt  parole into          his from-and-after sentences,  become a model prisoner,  go on to          earn  all available  credits,  and then  be  paroled out  of,  or          otherwise released from, his from-and-after sentences at any time          before  2001.16   In fine,  this case,  like Morales,  involves a                                                       _______          situation  in   which  the   possibility  of  harm   is  entirely          speculative.17                                        ____________________               16If past is  prologue, cf. W. Shakespeare, The Tempest, act                                       ___                 ___________          II,  sc. i (1612), all of these prospects seem extremely dubious.          Hamm's  disciplinary record  reveals a  cavalcade of  misconduct,          including episodes of inciting a prison riot, arson, assaulting a          guard,  attempting  an  escape,  conspiring to  take  a  hostage,          organizing a work stoppage, and possessing controlled substances.          These are not the emblemata of an inmate who is  likely either to          inspire a  parole board  to act  favorably on  his  behalf or  to          accumulate good-time credits at a rapid rate.               17There are, of  course, other similarities to  Morales.  We                                                               _______          mention two of them.   First, the  challenged policy here    like          the statute at issue in Morales, 115 S. Ct at 1603   applies only                                  _______          to a limited class  of prisoners (here, life inmates who face the          overhanging prospect  of from-and-after  sentences) for whom  the          likelihood of release on  parole is considerably below  the norm.          Second,  the  availability  of  special parole,  see  supra  Part                                                           ___  _____          I(C)(3), offers the Parole Board the flexibility that the Morales                                                                    _______          Court deemed important.  See id. at 1604.                                   ___ ___                                          25                    This  case  also  possesses a  further  dimension  that          weighs against the petitioner's position.  Whereas the new law in          Morales  could  not  conceivably  have  inured  to  a  prisoner's          _______          benefit, the new aggregation policy that the Commonwealth adopted          in  1977 might very  well redound to  the petitioner's advantage.          After all, the  1977 policy  eliminates the need  for two  parole          permits  and  ensures that  the petitioner  will be  eligible for          parole from all his sentences  at one fell swoop.  Under  the old                      ___          policy, if the  respondent denied the petitioner  parole into his          from-and-after  sentences  in  1983,  1986,  and  1989     not an          unlikely  eventuality in  light of  Hamm's mottled  record    his          wrap-up  date,  even  assuming  the accrual  of  all  conceivable          credits, would not occur until sometime in 2006.  This  is a full          five years after the date  on which he could be paroled  from all                     _____          his sentences under the 1977 policy.                    This scenario  prompted the district court  to conclude          that   "[i]n   1982,  when   the   respondent   recalculated  the          petitioner's  parole eligibility,  it was  not clear  whether the          petitioner would be helped or harmed by aggregation; the  balance          sheet  is  unclear even  today."   Hamm  III,  slip op.  at 10.18                                             _________                                        ____________________               18The Morales  Court pointed  out that the  relevant inquiry                     _______          must not  focus "on  whether a  legislative change produces  some          ambiguous  sort of `disadvantage,' . .  . but on whether any such          change  .  .  .  increases  the  penalty  by  which  a  crime  is          punishable."  Morales, 115 S. Ct. at 1602 n.3.   Despite the fact                        _______          that the district court issued its opinion without the benefit of          Morales and framed  the corresponding  part of its  ruling as  an          _______          inquiry   into   whether   the   1977  policy   resulted   in   a          "[d]isadvantage  to  the  petitioner,"   it  nonetheless  made  a          thoroughgoing   examination  of   the  uncertainty   inherent  in          comparing potential results under the old and new policies.                                           26          This statement  is unarguably accurate, and  the uncertainty that          it  portends   strips  the   veneer  of  plausibility   from  the          petitioner's ex post facto initiative.  Morales makes  it crystal                                                  _______          clear that  such  uncertainty militates  against  the  petitioner          because  any other  approach  would "effectively  shift[] to  the          State the burden  of persuasion  as to [the  prisoner's] ex  post          facto claim."   Id. at 1603 n.6.  A  party who asserts an ex post                          ___          facto  claim must show a real possibility of cognizable harm, not          a  theoretical  possibility  bound  up  in  gossamer  strands  of          speculation and surmise.                    We find illuminating a recent decision of another court          that needed to construct the ex post facto balance of prospective          benefits and burdens.   In United States v.  McGee, 60 F.3d  1266                                     _____________     _____          (7th Cir. 1995), the court addressed an amendment that became law          following the defendant's conviction but before the imposition of          sentence.    The  amendment  eliminated  a  twelve-month  minimum          sentence for the  offense of  conviction and replaced  it with  a          range of  twenty-one to twenty-four  months.  The  district court          imposed the  maximum twenty-four-month sentence.   The  defendant          appealed, claiming that the amendment  violated the ex post facto          prohibition  because  it removed  the  possibility  of a  shorter          sentence,  i.e.,  a sentence  of  between  twelve and  twenty-one          months.   The Seventh Circuit disagreed.  It noted that, although          the amendment eliminated an opportunity for a milder sentence, it          also placed a  ceiling on  the maximum  available sentence,  thus          narrowing "the range of punishment to [the defendant's] benefit."                                          27          Id.  at 1271.  This potential benefit  made an evaluation  of the          ___          risk  that  the new  law might  subject  the prisoner  to harsher          punishment  too  speculative  to  constitute  an  ex  post  facto          violation.  See id.                      ___ ___                    The Seventh  Circuit's  rationale is  persuasive  here.          Due to  the peculiar concatenation of  circumstances   especially          the profound uncertainty over how the petitioner would have fared          under the old system  and the potential benefits that  may accrue          to  him under  the  new  regime    the  potential  risk  of  more          Draconian  punishment  under  the  1977  policy  defies  reliable          measurement.  As  a result, we hold  that the application of  the          new  policy to the  petitioner did not  insult the Ex  Post Facto          Clause.          III.  CONCLUSION          III.  CONCLUSION                    We need go no  further.  For the foregoing  reasons, we          reverse the  district court's  order and dismiss  the application          for a writ of habeas corpus.          It is so ordered.          It is so ordered.          ________________                           Separate Opinion Follows                      STAHL, Circuit Judge (concurring in part and                      STAHL, Circuit Judge (concurring in part and                             _____________            dissenting in part).  I agree that the Commonwealth did not            dissenting in part).            violate Hamm's rights under the Due Process Clause when it            failed to provide him a parole hearing in 1983.  Unlike my                                          28            colleagues, however, I am persuaded that, as applied to Hamm            and other similarly-situated prisoners, the 1977 aggregation            policy is an unconstitutional ex post facto law.  First, I            believe that the 1977 aggregation policy, which effectively            altered the date of Hamm's initial parole hearing, is a "law"            subject to ex post facto limitations.  Second, contrary to my            colleagues, I believe that the 1977 policy, as applied to            Hamm and other similarly-situated prisoners, clearly produces            a risk of increasing the measure of punishment sufficient to            violate the Ex Post Facto Clause.  Hence, I respectfully            dissent from parts II.B.-III.                                          I.                                          I.                      Article 1,   10 of the Constitution clearly            proscribes the authority of a state to enact any ex post            facto law.  As the majority explains, it is long settled that            the Clause forbids                       any statute which punishes as a crime an                      act previously committed, which was                      innocent when done; which makes more                      burdensome the punishment for a crime,                      after its commission, or which deprives                      one charged with crime of any defense                      available according to law at the time                      when the act was committed.            Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting            _______    __________            Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)); see also            _______    ____                                ___ ____            California Dep't of Corrections v. Morales, 115 S. Ct. 1597,            _______________________________    _______            1601 (1995) ("the Clause is aimed at laws that retroactively            alter the definition of crimes or increase the punishment for                                         -29-                                          29            criminal acts") (internal quotation omitted).  In general, an            ex post facto inquiry requires a two-step analysis.  See                                                                 ___            Miller v. Florida, 482 U.S. 423, 430 (1987).  A court should            ______    _______            ask (1) whether the challenged provision is a "law" that acts            retrospectively, and (2) whether the burden the law            retrospectively imposes is of sufficient type and degree to            violate the Constitution.                       In this case, Hamm argues that the 1977 aggregation            policy violated the Ex Post Facto Clause by retroactively            depriving him of opportunities to obtain his release earlier            than November 2001.  In response, the Commonwealth contends            that the 1977 aggregation policy was not a "law" subject to            ex post facto limitation, and that, in any event, the            aggregation did not increase Hamm's punishment.  My            colleagues agree with the second contention, and therefore            find it unnecessary to consider the first.  Because, as I            explain more fully infra at 35-43, I believe that the 1977                               _____            aggregation policy engendered a sufficient risk of increasing            Hamm's punishment, I cannot avoid the first prong of the            Commonwealth's argument.  Accordingly, I proceed first to            explore fully whether the 1977 aggregation policy is a "law"            subject to ex post facto proscription, and, second, to            discuss my disagreement with the majority over whether the                                         -30-                                          30            new policy produces a risk of increasing the measure of            punishment sufficient to violate the Constitution.19            A.  Is the 1977 Aggregation Policy a "Law"?            ___________________________________________                      I agree with the district court that the 1977            aggregation policy was a "law" for purposes of ex post facto            analysis.  Although the aggregation policy was not formally            promulgated as a regulation governing the Parole Board, it            was as binding on the Parole Board, on a case-by-case basis,            as an act passed by the legislature would have been.             Moreover, the Commonwealth does not argue that, once the            policy had been promulgated, the Parole Board had any            discretion to deviate from the policy in any particular            instance.                      The Supreme Court has not addressed the question of            whether an administrative policy or regulation can be an ex            post facto law.  A number of circuit courts, however, have            held that binding administrative regulations, as opposed to            those that serve merely as guidelines for discretionary            decisionmaking, are laws subject to ex post facto limitation.             For example, in a case factually similar to this one, the            Ninth Circuit held that the California Department of            Corrections's recalculation of a prisoner's parole-            eligibility date under its new interpretation of the                                            ____________________            19.  I  do  not  restate  the  facts  or  outline  the  prior            proceedings.  For a complete discussion of these matters, see            Majority Opinion at 2-12.            ________________                                         -31-                                          31            governing statutes violated the Ex Post Facto Clause because            "the Department has changed its interpretation of the            authority itself."  Love v. Fitzharris, 460 F.2d 382, 385                                ____    __________            (9th Cir. 1972), vacated as moot, 409 U.S. 1100 (1973).  The                             _______ __ ____            Love court stated that:            ____                      the interpretation of the relationship                      between the statutes . . . by the                      administrative agency charged with their                      enforcement has the force and effect of                      law. . . . [N]ot only defendants, in                      contemplating their pleas, but also trial                      courts, in imposing sentences, are                      entitled to rely on such administrative                      interpretations. . . . A new                      administrative interpretation which                      subjects the prisoner already sentenced                      to more severe punishment has the same                      effect as a new statute lengthening his                      present term . . . .            Id. (citations omitted).  The Eleventh Circuit similarly            ___            concluded that a regulation, promulgated pursuant to the            Georgia parole board's delegated legislative power, that            changed the period between inmate's parole hearings from one            to eight years was a "law" subject to ex post facto            limitation.  Akins v. Snow, 922 F.2d 1558, 1561 (11th Cir.),                         _____    ____            cert. denied, 501 U.S. 1260 (1991); see also Rodriguez v.            _____ ______                        ___ ____ _________            United States Parole Comm'n, 594 F.2d 170, 174 (7th Cir.            ___________________________            1979) (new regulation eliminating parole hearing after one-            third of sentence is "tantamount to a statute" for ex post            facto purposes).                      In those cases holding that particular            administrative regulations or guidelines were not laws                                                          ___                                         -32-                                          32            subject to the Ex Post Facto Clause, courts have often            premised their holdings, at least in part, on the advisory            nature of the regulation or guidelines in question.  See,                                                                 ___            e.g., Kelly v. Southerland, 967 F.2d 1531, 1532-33 (11th Cir.            ____  _____    ___________            1992) (rescission guidelines promulgated by federal Parole            Commission did not violate Ex Post Facto Clause because they            both were subject to amendment by the Commission and merely            guided, but did not dictate, actual parole decisions); Smith                                                                   _____            v. United States Parole Comm'n, 875 F.2d 1361, 1367 (9th Cir.               ___________________________            1988) (finding parole "regulation" was not an ex post facto            law and noting that "the operative factor in assessing            whether a directive constitutes a `law' for ex post facto            purposes is the discretion that the Parole Commission retains            to modify that directive or to ignore it altogether as the            circumstances may require"); Inglese v. United States Parole                                         _______    ____________________            Comm'n, 768 F.2d 932, 936 (7th Cir. 1985) ("The power to            ______            exercise discretion indicates that the [parole] guidelines            are merely guides, and not law:  guides may be discarded when            circumstances require; laws may not.").  Moreover, these            cases involve the federal Parole Commission's guidelines,            which are "truly advisory" because the Commission possesses            the authority to disregard them in the appropriate            circumstances.  Bailey v. Gardebring, 940 F.2d 1150, 1158                            ______    __________            (8th Cir. 1991) (Lay, C.J., dissenting), cert. denied, 112 S.                                                     _____ ______            Ct. 1516 (1992).  The Commonwealth makes no claim that its                                         -33-                                          33            aggregation policy was merely "advisory" or that it was free            to disregard the policy in a particular case.                      The Commonwealth does postulate, however, that            because it had discretion to adopt the 1977 aggregation            policy in the first place and to modify the policy            subsequently, as it did in 1988, the policy should not be            considered a law.  Although a number of the federal Parole            Commission cases have relied in part on this reasoning,20            see, e.g., Smith, 875 F.2d at 1367, I would reject it here.             ___  ____  _____            The argument not only exalts form over substance but its            logic suggests that even legislative acts, because they too            may be modified, should be immune to challenge under the Ex            Post Facto Clause.  See Bailey, 940 F.2d at 1158 (Lay, C.J.,                                ___ ______            dissenting).  A binding policy or regulation, promulgated            pursuant to delegated legislative authority by an            administrative body that implicitly retains authority to            amend it in the future, is no different in its force and            effect than a law passed by a legislature that retains            authority to amend or revoke that law.  The Commonwealth's                                            ____________________            20.  The Commonwealth claims that the Eighth  Circuit adopted            this  reasoning  in Bailey,  which  held  that  a  change  in                                ______            Minnesota parole  board regulations abolishing  annual review            of  prospective  release  dates   and  limiting  the  board's            discretion in changing  such dates did  not constitute a  law            for ex  post facto  purposes, even  though  the board  lacked            discretion to  disregard its  regulations in any  given case.            However, the relevant  section of Bailey,  940 F.2d at  1156,                                              ______            drew  the  concurrence of  a second  panel  member as  to the            result  only, and not its reasoning, id. at 1157 (Stuart, J.,                                                 ___            concurring).                                         -34-                                          34            Parole Board possessed delegated legislative authority to            promulgate the aggregation policy:  "The parole board shall .            . . make rules relative to the performance of its duties."             Mass. Gen. L. ch. 27,   5(e).  Furthermore, under            Massachusetts law, an agency regulation21 "promulgated            pursuant to a legislative grant of power generally [has] the            force of law."  Kenney v. Commissioner of Correction, 468                            ______    __________________________            N.E.2d 616, 619 (Mass. 1984).  Thus, because the 1977            aggregation policy was effectively a regulation having the            full force and effect of law, I would hold that it is subject            to limitation under the Ex Post Facto Clause.                                            ____________________            21.  That  the   1977  policy  was  not   formally  deemed  a            "regulation"   also   does   not   seem   to  matter:   Under            Massachusetts law, a "regulation"                      includes the  whole or any part  of every                                                          _____                      rule,   regulation,  standard   or  other                      ____    __________   ________   __  _____                      requirement  of  general application  and                      ___________  __  _______ ___________  ___                      future effect . .  . adopted by an agency                      ______ ______                      to   implement   or  interpret   the  law                      enforced or administered by it.            Mass. Gen. L. ch. 30A,   1(5) (emphasis added).                                         -35-                                          35            B.  Does the 1977 Aggregation Policy Produce a Sufficient            _________________________________________________________            Risk of Increasing the Measure of Punishment?            _____________________________________________                      I now turn to the issue at the heart of my            disagreement with the majority:  Whether, as applied to Hamm            and other similarly-situated prisoners, the 1977 aggregation            policy produces a risk of increased punishment sufficient to            violate the Ex Post Facto Clause?  My colleagues answer this            question in the negative, basing their conclusion on two            premises.  First they deem it highly unlikely that, under the            prior policy, Hamm would have won early parole from his life            sentence and acquired the necessary good-time credits to            advance the date of his ultimate parole hearing to a point            earlier than 2001.  Hence, they conclude that any harm to            Hamm ensuing from the 1977 aggregation policy is highly            speculative.  Second, they posit that, due to structural            differences between the two policies, a "real" benefit            accrues to Hamm under the new policy.  Then, combining these            two premises, my colleagues ultimately conclude that, on            balance, the 1977 aggregation policy does not violate the Ex            Post Facto Clause.  I strongly disagree.                      My colleagues favorably compare the risk of            increased punishment occasioned by the 1977 aggregation            policy with the risk of increased punishment recently            examined by the Supreme Court in California Dep't of                                             ___________________            Corrections v. Morales, 115 S. Ct. 1597 (1995).  In Morales,            ___________    _______                              _______                                         -36-                                          36            the Court considered an amendment permitting the California            state parole board to defer annual parole-suitability            hearings for up to three years for prisoners at least twice            convicted of murder.  Id. at 1600.  In upholding the                                  ___            amendment, the Court rejected the contention that it violated            the Ex Post Facto Clause simply because the deferral of            subsequent suitability hearings deprived affected prisoners            of an opportunity to gain an earlier release from prison.             Id. at 1602 n.3.  The Court explained that just because the            ___            amendment caused the loss of some theoretical opportunity to            gain an earlier release did not mean that it necessarily            violates the Constitution.  Id.  Instead, the Court held                                        ___            that, for ex post facto purposes, the test is whether the            loss of that opportunity actually produces a "sufficient risk            of increasing the measure of punishment for the attached            crimes."  Id. at 1603.                        ___                      In applying this test, the Court focused on several            factors that significantly minimized the California            amendment's risk of harm.  Morales, 115 S. Ct. at 1603-05.                                        _______            First, the Court noted the amendment's limited application.             Id. at 1603.  The amendment had no effect on any prisoner            ___            unless the California parole board first found that the            prisoner was both unsuitable for parole and unlikely to be            found suitable at subsequent hearings during the deferral            period.  Id. at 1604.  Moreover, the Court noted that the                     ___                                         -37-                                          37            amendment did not affect "the date of any prisoner's initial            parole suitability hearing:  it affected the timing only of            subsequent hearings."  Id. at 1605.                                   ___                      Next, the Court observed, inter alia, that, even                                                _____ ____            with respect to a prisoner who might have actually received a            favorable recommendation at an omitted hearing, the practical            effect of the amendment on that prisoner's ultimate release            date was only slight.  Morales, 115 S. Ct. 1605.  At the                                   _______            deferred hearings, the parole board determined only a            prisoner's "suitability" for parole but did not set actual            parole dates.  Id.  The Court noted that, significantly, in                           ___            many cases, an actual parole date comes several years after a            finding of suitability.  Id.  Moreover, under California law,                                     ___            evidence that a prisoner in fact had been "suitable" for a            year or two prior to the date of the prisoner's delayed            hearing would be relevant in setting the prisoner's actual            parole date.  Id.  Hence, the Court concluded that, in most                          ___            cases, any delay resulting from the amendment could be            corrected by the parole board when it set the prisoner's            ultimate release date.  Id.                                    ___                        In short, the Court recognized that the            amendment's built-in limitations, severely restricting both            its application and potential effect, effectively minimized            any risk of increased punishment caused by the elimination of            subsequent suitability hearings.  Furthermore, the Court                                         -38-                                          38            carefully limited the breadth of its holding, expressly            disavowing any opinion "as to the constitutionality of any of            a number of statutes that might alter the timing of parole            hearings under circumstances different from those present            here."  Morales, 115 S. Ct. at 1603 n.6.                      _______                      On close analysis, I believe the effect of the 1977            aggregation policy challenged here differs significantly from            the risk of increased harm produced by the Morales amendment.                                                        _______            First, in contrast to the Morales amendment, the adoption of                                      _______            the 1977 aggregation policy potentially affects all            Massachusetts prisoners previously eligible for parole from a            life sentence into consecutive from-and-after sentences.  No            provision in the policy limits the class of affected            prisoners to only those adjudged by the Commonwealth's Parole            Board (or some similar body) to be unlikely to win early            parole or to earn significant good-time credits.  Moreover,            where the Morales amendment affected only subsequent                      _______            hearings, the 1977 aggregation policy essentially delays an            affected prisoner's initial parole hearing.                      Second, also in contrast to Morales, the impact of                                                  _______            the 1977 aggregation policy on those it affects is            substantial.  For example, under the prior policy, Hamm could            have terminated his incarceration as early as 1995, through            the acquisition of earned and statutory good-time credits and                                         -39-                                          39            the application of his jail credits.22  The 1977            aggregation policy extinguished that possibility; Hamm's term            of incarceration cannot end under the 1977 policy before his            first-available parole hearing in 2001.  Thus, in contrast to            the amendment in Morales, which will have little, if any,                             _______            real impact on an affected prisoner's actual time in prison,            the 1977 aggregation policy could potentially increase Hamm's            prison term by up to six years.  See Weaver v. Graham, 450                                             ___ ______    ______            U.S. 24, 26-27, 31-34 (1981) (holding that new state statute            reducing amount of good time that could be earned            prospectively by current inmates violates Ex Post Facto            Clause because it removed existing opportunity for shortened            prison time).                      My colleagues gloss over these clear distinctions            by positing that, whatever the risk might have been at the            outset, given the brutal nature of Hamm's crime and his poor            record as a prisoner, it is highly unlikely that Hamm could            have availed himself of the opportunity to obtain an earlier            release.  Such analysis, however, is more akin to a harmless            error inquiry focusing on the particulars of Hamm's case than            to a proper ex post facto inquiry into whether the new law                                            ____________________            22.  As does the  majority, I assume  the accuracy of  Hamm's            claim  of  entitlement  to 840  days  of  jail  credit.   See                                                                      ___            Majority  at 8.    I note,  however, that  the  claim is  not            ________            critical to my analysis.  Even without the 840 days, the 1977            aggregation  policy  deprives  Hamm  of  the  opportunity  to            advance  his initial ultimate  parole date by  over three and            half years.                                         -40-                                          40            posed a sufficient risk of increasing the measure of            punishment.  Moreover, while it is clear that Hamm bears the            ultimate burden of establishing that the new law changes the            measure of punishment, Morales, 115 at 1603 n.6, this does                                   _______            not mean that he must necessarily show "that he would have            been sentenced to a lesser term under the measure or range of            punishments in place under the previous statutory scheme."             Id. (citing Lindsey v. Washington, 301 U.S. 397, 401 (1937));            ___         _______    __________            see also id. at 1607 (Stevens, Souter, J.J., dissenting);            ___ ____ ___            Miller v. Florida, 482 U.S. 423, 432 (1987) (reaffirming            ______    _______            Lindsey).  Indeed, the proper "inquiry looks to the            _______            challenged provision, and not to any special circumstances            that may mitigate its effect on the particular individual."             Weaver, 450 U.S. at 33.            ______                      In any event, the fact of the matter is that the            1977 aggregation policy completely deprived Hamm of his once-            existing opportunity to gain a release from prison as much as            six years earlier than he can now.  Moreover, notwithstanding            my colleagues' post hoc evaluation of Hamm's chances, because                           ____ ___            Hamm never received a parole hearing, no findings exist to            inform us whether or not the Commonwealth would have found            Hamm to be a likely candidate for early parole from his life            sentence.  Indeed, without such findings or even knowledge            concerning the standards and policies that guide the            Commonwealth's Parole Board in making such recommendations,                                         -41-                                          41            this court can only speculate as to whether the 1977            ____ _____            aggregation policy posed a sufficient risk to Hamm.23                      In Morales, the Court reasoned that the delay in                         _______            parole suitability hearings caused by the challenged            amendment did not produce a sufficient risk of punishment            because, in major part, the amendment affected only a            carefully limited class of prisoners, and the impact of any            delay on an affected prisoner's actual time in prison was            negligible.  Implicit in the Court's holding, however, is the            recognition that delay in a parole hearing produces some                                                                ____            possibility of an increase in punishment.  Where, as here,            the delay is not predicated on a finding that the prisoner is            an unlikely candidate for parole, and the delay may            significantly increase the prisoner's sentence, I believe,            even in Hamm's case, such delay produces a "sufficient risk            of increasing the measure of punishment."  Morales, 115 at                                                       _______            1603.                      As noted, my colleagues also base their conclusion            on the premise that the 1977 aggregation policy arguably            provides a "real" benefit to Hamm and other affected            prisoners.  I believe, however, that it is this putative            "benefit" that is too "speculative" to merit significant                                            ____________________            23.  The fact  that the record  lacks the opinion,  much less            the findings,  of the  Commonwealth's Parole Board  on Hamm's            suitability   for  early   parole  clearly   underscores  the            inappropriateness  of my  colleagues' "harmless  error" style            review.                                            -42-                                          42            weight in the ex post facto inquiry.  Any fair analysis            reveals that the supposed benefit arising from the 1977            aggregation policy assumes several rather contradictory            predicates.  For example, to find that Hamm would benefit            from the 1977 policy, I would need to assume both (1) that,            under the prior policy, the Commonwealth's Parole Board would            have refused to grant Hamm parole from his life sentence at            least three times (in 1983, 1986, and 1989), or that, if the            board did grant him such initial parole, he would have            subsequently failed to accrue good-time credits, and (2)                                                             ___            that, under the new policy, the Parole Board would then grant            him "real" parole into society at large in 2001            (notwithstanding that the board would not even have granted            Hamm parole from his life sentence into his lengthy from-and-            after sentences on at least three prior occasions).  In other            words, the Parole Board would have to deny Hamm's request for            parole from one lengthy sentence into another at least three            times, but then, a short time later, be willing essentially            to grant Hamm a complete release from prison.  The inherent            contradiction in such assumptions discloses the difficulty of            quantifying such a "benefit," or even determining whether one            genuinely exists.  Thus, I believe that any benefit            engendered by the 1977 aggregation policy is much too                                         -43-                                          43            speculative to serve as an effective counterweight to its            real risk of harm.24                                         II.                                         II.                      In sum, I believe that the 1977 aggregation policy            is a "law" subject to ex post facto limitation, and that the            policy produces a risk of increasing the measure of            punishment sufficient to violate the Ex Post Facto Clause of            the Constitution.  Accordingly, I dissent from parts II.B.-            III.                                            ____________________            24.  My  colleagues  find  further  support  in  the  Seventh            Circuit's  recent decision in United States v. McGee, 60 F.3d                                          _____________    _____            1266,  1271 (7th Cir. 1995).   In McGee,  the Seventh Circuit                                              _____            rejected an ex post facto challenge to a sentencing provision            that  substituted a  mandatory range  of 21  to 24  months in            place of  an open-ended  12  month minimum  sentence for  the            offense  of conviction.  Id. I find the analogy inapt because                                     ___            in  McGee  the  district  court had  actually  sentenced  the                _____            defendant to the maximum  24 months under the  new sentencing            range  prior to  the  Seventh Circuit's  review.   Thus,  the            Seventh  Court could fairly quantify both the benefit and the            harm produced  by the  new sentencing range.   Significantly,            the fact that the district  court had sentenced the defendant            to  the  maximum possible  under  the  new sentencing  scheme            clearly suggested that, if anything, it would have given  the            defendant  a  higher,  not  lesser, sentence  under  the  old            scheme.   In our  case, however,  Hamm received  no analogous            treatment.   He received no parole hearing.  Thus, instead of            fairly  quantifying the risk as  the McGee court  did, we can                                                 _____            only speculate as  to the effect the 1977  aggregation policy            will ultimately have on his sentence.                                         -44-                                          44
