                                                  Filed:   September 7, 2001

                     UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                                No. 00-7173
                              (CA-00-2234-AW)



Thomas Wayne Griggs,

                                                    Petitioner - Appellant,

           versus


State of Maryland, et al.,

                                                   Respondents - Appellees.



                                   O R D E R



     The   court    amends   its   opinion     filed   August   23,   2001,   as

follows:

     On page 7, first paragraph, line 7 -- the cite to Lynce v.

Mathis is corrected to read “519 U.S. 433, 441-43 (1997).”

                                               For the Court - By Direction




                                                /s/ Patricia S. Connor
                                                         Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS WAYNE GRIGGS,
Petitioner-Appellant,

v.
                                                               No. 00-7173
STATE OF MARYLAND; ATTORNEY
GENERAL FOR THE STATE OF
MARYLAND,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-00-2234-AW)

Argued: May 10, 2001

Decided: August 23, 2001

Before WILKINSON, Chief Judge, and WIDENER and
MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Michael wrote the opinion, in
which Chief Judge Wilkinson and Judge Widener joined.

_________________________________________________________________

COUNSEL

ARGUED: Neal Lawrence Walters, Appellate Litigation Clinic,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellant. Gary Eugene Bair, Assistant Attorney Gen-
eral, Criminal Appeals Division, OFFICE OF THE ATTORNEY
GENERAL, Baltimore, Maryland, for Appellees. ON BRIEF: J.
Joseph Curran, Jr., Attorney General of Maryland, Criminal Appeals
Division, OFFICE OF THE ATTORNEY GENERAL, Baltimore,
Maryland, for Appellees.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Thomas Wayne Griggs, who is serving a life sentence for rape in
Maryland, is eligible for parole consideration under Maryland law. He
claims that the Governor of Maryland violated the Ex Post Facto
Clause when he announced in 1995 that he would not grant parole to
any inmate serving a life sentence for murder or rape. A Maryland
state court denied Griggs's application for post-conviction relief, and
the United States District Court denied his petition for a writ of
habeas corpus. Because the Maryland state court's decision denying
Griggs's ex post facto claim is not contrary to, and did not involve
an unreasonable application of, clearly established federal law as
determined by the Supreme Court, we affirm.

I.

In March 1980 Griggs was convicted in Maryland state court of
rape, assault, and perverted practices. He received a life sentence for
the rape and concurrent sentences of ten years for the assault and five
years for the perverted practices. The state trial court eventually
vacated Griggs's assault conviction and sentence, but his other con-
victions and his life sentence with a concurrent five-year term
remained intact. Under Maryland law Griggs became eligible for
parole consideration after serving fifteen years of his life sentence.
See Md. Code Ann., Corr. Serv. § 7-301(d)(1) (amending and
recodifying Md. Ann. Code of 1957, art. 41 § 4-516). When a Mary-
land inmate serving a life sentence becomes eligible for parole con-
sideration, the Maryland Parole Commission "review[s] [the case] and
make[s] recommendations to the Governor . . . concerning parole." Id.
§ 7-206(3). An inmate serving a life term"may only be paroled with
the approval of the Governor." Id. § 7-301(d)(4).

                  2
In September 1995 Maryland's Governor, Parris Glendening, cal-
led a press conference at one of the state prisons. The Governor
announced that he would not grant parole to eight inmates with life
sentences who had been recommended for release by the Parole Com-
mission. The Governor also announced that in the future he would not
grant parole to any inmate serving a life term for murder or rape
unless the inmate was very old or terminally ill. Indeed, the Governor
said that he had directed the Commission "not to even recommend --
to not even send to [his] desk -- a request for parole for murderers
and rapists . . . except for these two areas: very old age, or terminal
illness."

The Governor's press conference prompted a number of Maryland
inmates serving life sentences to file habeas corpus petitions in state
court, claiming that the Governor's press statement illegally con-
verted their life sentences with eligibility for parole to life sentences
without the possibility of parole. One of these petitioners was Walter
Lomax, who was among the eight inmates denied parole by the Gov-
ernor at his September 1995 press conference. Lomax's case made it
all the way to the Court of Appeals of Maryland. See Lomax v. War-
den, 741 A.2d 476 (Md. 1999). We will discuss the Lomax case in
some detail because when Thomas Griggs sought post-conviction
relief as a result of the Governor's statement, the state court relied
exclusively on Lomax to dismiss Griggs's petition.

There were two main issues in Lomax. The first was whether the
Governor's statement, that he would not approve parole for any
inmate serving a life sentence unless he was very old or terminally ill,
is an ex post facto law prohibited by the Constitutions of the United
States and Maryland. This statement, the Court of Appeals of Mary-
land held, "does not constitute a `law' within the meaning of the ex
post facto prohibition." Lomax, 741 A.2d at 481. The court viewed the
Governor's statement as nothing more than a policy guideline
explaining how he would exercise his discretion under the Maryland
parole laws. Id. "The Governor's announcement did not bind him,"
the court said, "and he can employ different guidelines whenever he
desires to do so." Id. The second issue in Lomax was whether the
Governor's other statement, that he had directed the Parole Commis-
sion not to recommend parole for any inmate serving a life sentence
for murder or rape, meant that the Commission and the Governor

                  3
were failing in their duties to exercise the discretion vested in them
by the parole laws. The state conceded in the Court of Appeals that
the Governor cannot direct the Commission to ignore its statutory
responsibilities and that the Commission "`has the statutory obligation
to submit to the Governor for approval the names of any inmates
[serving life sentences] that the Commission finds suitable for
parole.'" Id. at 482 (quoting Brief for Respondent at 17, Lomax v.
Warden, 741 A.2d 476 (Md. 1999) (No. 45)). The court agreed with
the state's concession, emphasizing that "the Parole Commission and
the Governor must exercise the discretion which the law vests in
them." Id. Because the Commission (after applying the relevant statu-
tory factors) recommended to the Governor that Lomax be paroled,
and the Governor declined to approve the recommendation, the court
held that the Commission and the Governor had exercised their statu-
tory discretion. Lomax, in other words, "received the parole consider-
ation to which he was entitled under the applicable statutes." Id. at
483.

We return to Griggs's case. On May 4, 1999, several years after the
Governor's press statement about parole, Griggs appeared before the
Parole Commission for a hearing on whether he should be recom-
mended for parole under his life sentence. The Commission declined
to recommend parole for Griggs and scheduled him for a rehearing in
May 2005. The Commission considered the statutory factors for
parole consideration, see Md. Code Ann., Corr. Ser. at § 7-305, and
offered several reasons for its decision. These included the nature and
circumstances of Griggs's offenses, the vulnerability of his victim (a
woman of sixty-eight), and problems in the area of "institutional
adjustment." With a view toward his eventual rehearing, the Commis-
sion recommended that Griggs enroll in the Alternative to Violence
Program and that he avoid disciplinary infractions.

Griggs's dissatisfaction with the Parole Commission's decision led
him to file a petition for post-conviction relief in the Maryland trial
court on September 29, 1999. Griggs alleged that he was denied
parole because of the Governor's statement of September 1995 that
there would be no parole for prisoners serving life sentences for mur-
der or rape. The Governor's statement, Griggs argued, violated the Ex
Post Facto Clause. The state trial court denied relief, relying entirely
upon Lomax v. Warden, 741 A.2d 476 (Md. 1999). On the basis of

                  4
Lomax the trial court concluded that "[t]he Parole Commission and
the Governor are fulfilling their statutory duty and exercising the dis-
cretion and responsibility mandated under the law." Griggs appealed
the decision to the Court of Special Appeals of Maryland, and his
appeal was dismissed. Later, the Court of Appeals of Maryland
denied his petition for a writ of certiorari. Griggs next filed a petition
for a writ of habeas corpus in U.S. District Court, asserting verbatim
the claim for post-conviction relief that he had filed in the state trial
court. The district court denied his petition, and his appeal is now
before us.

II.

Griggs's ex post facto claim focuses on the Governor's press state-
ment that he would deny parole to inmates serving life sentences for
murder or rape unless they were very old or terminally ill. The Gover-
nor's pronouncement, Griggs argues, constitutes a "law" that violates
the Ex Post Facto Clause because it retroactively eliminates his eligi-
bility for parole.11 Because the Maryland state court adjudicated
Griggs's claim on the merits, we apply the standard of review set
forth in 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal
writ of habeas corpus "shall not be granted . . . unless [the state
court's] adjudication of the claim resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States."

The Constitution of the United States provides that "No State shall
. . . pass any . . . ex post facto Law." U.S. Const. art. I, § 10, cl. 1.
The overarching question in this case is whether the Governor's state-
ment constitutes a "law" for purposes of the Ex Post Facto Clause. In
_________________________________________________________________

1 Griggs does not have a claim that the Governor's other statement, that
he had directed the Parole Commission not to recommend parole for any
inmate serving a life sentence for murder or rape, violates the Ex Post
Facto Clause. Notwithstanding this statement by the Governor, the Com-
mission continues to review cases and make parole recommendations to
the Governor on inmates serving life sentences. Indeed, the Commission
granted Griggs a parole hearing after the Governor's statement, although
it decided not to recommend parole.

                   5
rejecting Griggs's ex post facto claim, the Maryland trial court
adopted the reasoning of Lomax v. Warden, 741 A.2d 476 (Md.
1999), which held that the Governor's statement was not a law within
the meaning of the Ex Post Facto Clause. We must therefore analyze
Lomax to determine whether it is a decision that was contrary to, or
involved an unreasonable application of, clearly established federal
law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
In deciding that the Governor's press statement was not a law, the
Court of Appeals of Maryland began its analysis by quoting two
Supreme Court cases, Collins v. Youngblood, 497 U.S. 37 (1990), and
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), which discuss "what is
prohibited" by the Ex Post Facto Clause. Lomax, 741 A.2d at 480.
The Maryland court then focused on the plain language of the clause
itself, observing that "the ex post facto prohibition applies only to a
`law.'" Id. (emphasis added). Citing Fourth Circuit and state law pre-
cedent, the court noted that the concept of an ex post facto "law" is
broader than a statute enacted by a legislature,"and may include some
administrative regulations." Id. "Nevertheless," the court said, "the ex
post facto prohibition does not apply to a `change in guidelines assist-
ing [a government agency] in the exercise of its discretion.'" Id.
(quoting Portley v. Grossman, 444 U.S. 1311, 1313 (1980) (Rehn-
quist, J., chambers op.) (alteration in original)). Finally, the court
stated that under its own precedent, which is consistent with that of
lower federal courts, parole guidelines that are merely policy state-
ments describing how discretion will be exercised do not have the
force of law. Id. Drawing on these principles, the Court of Appeals
of Maryland concluded that the Governor's statement, that he would
not approve parole for any inmate serving a life sentence for murder
or rape (unless the inmate was very old or terminally ill), "was simply
an announcement of [nonbinding policy] guidelines as to how the
Governor would exercise the discretion which he has under the law."
Id. As a result, the court held that the Governor's statement "does not
constitute a `law' within the meaning of the ex post facto prohibi-
tion." Id.

As Griggs candidly acknowledges in his reply brief, he has been
"unable to identify any Supreme Court precedent" that would have
required the Court of Appeals of Maryland to hold that the Gover-
nor's policy statement to the press is a "law" for purposes of the Ex
Post Facto Clause. This concession is unavoidable because the

                  6
Supreme Court's application of the Ex Post Facto Clause has been
limited to statutes and administrative regulations with the force of
law. See Rogers v. Tennessee, 121 S. Ct. 1693, 1697 (2001) (noting
that "[a]s the text of the Clause makes clear, it `is a limitation upon
the powers of the Legislature'" (quoting Marks v. United States, 430
U.S. 188, 191 (1977))); see also Johnson v. United States, 529 U.S.
694, 696 (2000); Lynce v. Mathis, 519 U.S. 433, 441-43 (1997). Accord-
ingly, the Court of Appeals of Maryland could reasonably decide in
Lomax that the Governor's statement is not a law for ex post facto
purposes. The Lomax decision, in other words, does not run afoul of
clearly established federal law as determined by the Supreme Court.
Neither does the state court decision in Griggs's case, because that
decision followed Lomax. We therefore affirm the district court's dis-
missal of Griggs's petition for a writ of habeas corpus.2 2

AFFIRMED
_________________________________________________________________

2 Griggs also asserts in his brief to us that the Governor's statement
violates the Due Process Clause because it effectively deprives him of a
protected liberty interest in being considered for parole. Griggs failed,
however, to raise the due process issue in either state court or in the dis-
trict court. As a result, our certificate of appealability was limited to the
one issue Griggs raised, that is, "whether the Governor of Maryland's
pronouncement regarding parole eligibility for prisoners serving life sen-
tences violates the Ex Post Facto Clause." Because the due process issue
has been procedurally defaulted or waived, we decline to amend the cer-
tificate of appealability to include this issue. See Rose v. Lee, 252 F.3d
676, 687-88 (4th Cir. 2001); 28 U.S.C. § 2253(c)(2).

                  7
