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       United States Court of Appeals
                  FOR THE DISTRICT OF COLUMBIA CIRCUIT




                       Filed November 19, 2004


                               No. 02-5228

                         THADDEUS FLETCHER,
                             APPELLANT

                                     v.

                     DISTRICT OF COLUMBIA, ET AL.,
                              APPELLEES



                      On Petition for Rehearing
                                –————
  Before: GINSBURG, Chief Judge, and RANDOLPH and
ROBERTS, Circuit Judges.
  Opinion for the Court filed by Chief Judge GINSBURG.
   GINSBURG, Chief Judge: In March of 2001, Thaddeus
Fletcher sued the District of Columbia, the D.C. Department
of Corrections, the D.C. Board of Parole, and the United
States Parole Commission pursuant to 42 U.S.C. § 1983,
claiming the Parole Commission ‘‘violated the Ex Post Facto
Clause of the Constitution of the United States by determin-
ing his parole eligibility date on the basis of parole regula-
                                2

tions and guidelines promulgated after the crime for which he
was incarcerated.’’ Fletcher v. District of Columbia, 370 F.3d
1223, 1225 (D.C. Cir. 2004). The district court dismissed
Fletcher’s claim as premature and he appealed. Although we
disagreed with the district court’s procedural disposition, we
went on to hold Fletcher’s claim failed on the merits because
‘‘a parole guideline is not a ‘law’ within the proscription of the
Ex Post Facto Clause.’’ Id. at 1228.
   In his petition for rehearing, Fletcher calls our attention to
Garner v. Jones, 529 U.S. 244 (2000), in which the Supreme
Court considered a challenge to a non-binding parole regula-
tion under the Ex Post Facto Clause. The Court in Garner
reversed the Eleventh Circuit’s decision that a parole board
rule changing the time for reconsideration of parole from
three to eight years necessarily violated the Ex Post Facto
Clause, noting that the board had discretion to shorten the
eight-year period. The Court explained that the ‘‘controlling
inquiry’’ is ‘‘whether retroactive application of the change’’ in
a regulation respecting parole creates ‘‘a sufficient risk of
increasing the measure of punishment attached to the covered
crimes.’’ Id. at 250. Further, ‘‘[w]hen the rule does not by
its own terms show a significant risk, the [claimant] must
demonstrate, by evidence drawn from the rule’s practical
implementation by the agency charged with exercising discre-
tion, that its retroactive application will result in a longer
period of incarceration than under the earlier rule.’’ Id. at
255. That is, the claimant ‘‘must show that as applied to his
own sentence the law created a significant risk of increasing
his punishment.’’ Id. The Supreme Court thus foreclosed
our categorical distinction between a measure with the force
of law and ‘‘guidelines [that] are merely policy statements
from which the Commission may depart in its discretion.’’
370 F.3d at 1228. Rather, the question is one of practical
effect.
  Accordingly, we vacate our previous judgment and remand
this matter to the district court for further proceedings
consistent with Garner. We note, however, that Fletcher
made a related claim in a petition for a writ of habeas corpus,
which the district court denied pursuant to Garner, see
                             3

Fletcher v. Reilly, No. 01cv2058 (D. D.C. November 24, 2003),
and which is now pending in this court, No. 03–5359. On
remand therefore the district court need consider only such
matters, if any, as are not foreclosed by its decision in No.
01–2058 and by principles of claim preclusion.
                                                 So ordered.
