                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 13 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ARTHUR BERRY,

                Plaintiff-Appellant,

    v.                                                   No. 00-3366
                                                   (D.C. No. 97-3438-MLB)
    MARILYN SCAFE, Chairperson,                           (D. Kan.)
    Kansas Parole Board,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
Judge.




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

unanimously that oral argument would not materially assist the determination of

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

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Arthur Berry, a Kansas state prisoner proceeding pro se, appeals

the district court’s grant of summary judgment in favor of defendant on his claim

that the Kansas Parole Board’s application of an amendment to the state parole

statute violates the Ex Post Facto Clause of the United States Constitution. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

       Mr. Berry is serving two consecutive life terms in prison and an additional

consecutive prison term of five to twenty years for crimes committed in 1981. He

was convicted of two counts of first-degree murder and one count of aggravated

assault. In 1996, after serving fifteen years, he was considered for parole. Parole

was denied. Also in 1996, the state statute setting the frequency for considering

an inmate for parole was changed. Formerly, an inmate was to be considered for

parole every three years. The 1996 amendment provides that after being denied

parole, a prisoner in Mr. Berry’s category was to be considered for parole again

       not later than three years after the denial unless the parole board
       finds that it is not reasonable to expect that parole would be granted
       at a hearing if held in the next 10 years or during the interim period
       of a deferral. In such case, the parole board may defer subsequent
       parole hearings for up to 10 years but any such deferral shall require
       the board to state the basis for its findings.

Kan. Stat Ann. § 22-3717(j) (2000 Supp.). Mr. Berry contends that the new

statute, as applied to him, violates the   Ex Post Facto Clause. He requested the

district court to “issue an order declaring the Kansas Parole Board’s action of

passing Plaintiff for ten (10) years for a parole reconsideration hearing

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unconstitutional” and “to issue an order directing the Kansas Parole Board to

rescind its order passing Plaintiff for ten (10) years and reschedule Plaintiff for a

three (3) year deferral parole hearing in accordance with the law in place at the

time of Plaintiff’s conviction.” R. Doc. 1 at 5.

       Mr. Berry filed this suit against Marilyn Scafe, the chairperson of the

Kansas Parole Board, under 42 U.S.C. § 1983. In a prior appeal, this court held

that a § 1983 action, rather than a habeas petition, was the correct framework to

pursue his claims, and remanded.      Berry v. Scafe , No. 98-3194, 1999 WL 89152

(10th Cir. Feb. 23, 1999) (unpublished). On remand, the district court held that

section 22-3717(j) does not violate the     Ex Post Facto Clause and found, in an

alternate ruling, that Ms. Scafe was not the appropriate defendant because she had

not personally participated in the decision to deny parole to Mr. Berry.

       We first address whether this suit can be maintained against defendant, as

the chairperson of the Kansas Parole Board. She was designated chairperson by

the Kansas governor and is authorized to “organize and administer the activities

of the [parole] board.” Kan. Stat Ann. § 22-3709(a). An official may be sued in

her official capacity for injunctive relief under § 1983.   See Will v. Michigan

Dep’t of State Police , 491 U.S. 58, 71 n.10 (1989). Accordingly, we hold that

defendant Scafe, sued in her official capacity as the chairperson of the Kansas




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Parole Board, is an appropriate defendant, and we proceed to the merits of

Mr. Berry’s claims.

       “The States are prohibited from enacting an      ex post facto law. U.S. Const.,

Art. I, § 10, cl. 1. One function of the   Ex Post Facto Clause is to bar enactments

which, by retroactive operation, increase the punishment for a crime after its

commission.” Garner v. Jones , 529 U.S. 244, 249-50 (2000). The question is

whether the amended Kansas parole statute created a sufficient risk of increasing

the punishment for Mr. Berry’s crimes “to fall within the constitutional

prohibition.” Cal. Dep’t of Corr. v. Morales , 514 U.S. 499, 509 (1995). It is

undisputed that the length of his sentence is not affected by the amended statute.

Rather, only the intervals at which he will be considered for parole have changed.

Mr. Berry has the burden to “show that as applied to his own sentence the law

created a significant risk of increasing his punishment.”      Garner , 529 U.S. at 255.

       The Supreme Court has declined to “adopt a single formula for identifying

which legislative adjustments, in matters bearing on parole, would survive an       ex

post facto challenge.” Id. at 252 (citing Morales , 514 U.S. at 509). The

following factors identified by the Supreme Court as relevant to an      ex post facto

inquiry are germane to our inquiry: (1) whether a parole board has discretion to

determine if an inmate is eligible for release,    id. at 253; (2) whether the parole

board has the authority to tailor the frequency of the parole hearings to a


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particular inmate’s circumstances,     Morales , 514 U.S. at 511; (3) whether the

challenged statute permits an expedited parole review in the event the inmate’s

circumstances change or the parole board receives information to warrant an

earlier review, Garner , 529 U.S. at 254; (4) whether an administrative appeal is

available, Morales at 513; and (5) the likelihood that the plaintiff would be

released on parole if he received a hearing sooner than his next scheduled parole

hearing, see id. at 510-11.

       Applying those factors to this case, the first one is fulfilled because the

amended Kansas parole statute requires an exercise of discretion if the parole

board decides to set a future parole hearing beyond three years.

Section 22-3717(j); see Foy v. Taylor , 985 P.2d 1172, 1175 (Kan. Ct. App. 1999)

(noting parole board’s discretion). Moreover, it requires the parole board to state

the basis for its finding that an inmate is not reasonably expected to be granted

parole sooner than ten years. Section 22-3717(j).

       The second factor is satisfied by the amended statute’s provision for a

hearing in three years unless the parole board finds that it is not reasonable to

expect that the inmate will be granted parole at that time.   Id. Furthermore, the

parole board is granted discretion to defer the next hearing for as long as ten

years and may set the next hearing for sooner than ten years, depending on the

circumstances of the particular inmate.     See id.


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       Factors four and five are also met. Kansas parole regulations provide for

an expedited parole review. Kan. Admin. Reg. § 45-6-2;           see Branson v. McKune ,

3 P.3d 572, 574 (Kan. Ct. App. 2000) (holding Kansas law does not preclude

expedited parole hearing and express statutory language allowing such hearing

not required). The regulations also provide for appeal or reconsideration of the

parole board’s decision. Kan. Admin. Reg. § 45-4-6.

       Finally, we consider the last factor to determine whether Mr. Berry can

“reasonably expect that [his] prospects for early release on parole would be

enhanced by the opportunity” of a parole hearing every three years.         Morales , 514

U.S. at 512. He is serving two consecutive life sentences and another consecutive

sentence for five to twenty years. He, like the petitioners in     Morales and Garner ,

committed two murders. The parole board made the finding required by section

22-3717(j) that Mr. Berry’s next “parole hearing should be deferred for 10 years,

because it is not reasonable to expect that parole would be granted at a hearing if

held before then.” R. Doc. 21, ex. 5. The decision was based on the serious and

violent nature and circumstances of the crimes.      1
                                                         “Strong public opposition” and

“objections regarding parole” were additional reasons for denying parole.          Id.




1
      Mr. Berry shot to death his former wife at a restaurant shortly after their
divorce hearing. During the shooting, two other women were also shot, one of
whom died. R. Doc. 21, ex. 5.

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       Mr. Berry argues that the longer intervals between parole hearings will

restrict his opportunities for release on parole, and thereby increase the length of

his incarceration. His argument relies only on speculation that the more often he

is considered for parole, the higher his chances of release. Speculation and

conjecture that the punishment will be increased by a change lengthening parole

hearing intervals are insufficient to invoke the    Ex Post Facto Clause. Morales ,

514 U.S. at 509-10.

       Under the circumstances, we hold that extending Mr. Berry’s parole

consideration from three years to ten does not present “a sufficient risk that his

effective punishment is more onerous under the new [Kansas] statute.”         Raymer v.

Enright , 113 F.3d 172, 176 (10th Cir. 1997). Rather, “the amendment simply

allows the [parole board] to avoid the futility of going through the motions of

reannouncing its denial of parole suitability [every three years].”     Morales , at 512.

Accordingly, the amended statute, as applied to Mr. Berry, does not violate the       Ex

Post Facto Clause.

       AFFIRMED.



                                                         Entered for the Court


                                                         Monroe G. McKay
                                                         Circuit Judge


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