Robert D. Freeman, Petitioner-appellant, v. State of Idaho Commission of Pardons & Paroles, Respondent-appellee, 999 F.2d 542 (9th Cir. 1993)

MEMORANDUM^** 

Robert Freeman, an Idaho prisoner, appeals from the district court's judgment denying his habeas petition under 28 U.S.C. § 2254. Freeman raises procedural due process and ex post facto objections to the state's refusal to grant him parole. We review de novo, Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir. 1991), and we affirm.

BACKGROUND

Freeman pleaded guilty in 1982 to two counts of lewd and lascivious conduct with a minor, in violation of Idaho Code Section 18-6607. He received consecutive sentences of 20 and 10 years on those counts, subject to that state's indeterminate sentencing scheme. See Idaho Code § 20-223 (1987). The state court of appeals affirmed Freeman's convictions and sentences on direct appeal. State v. Freeman, 714 P.2d 86 (Idaho Ct.App.1986). The Idaho Supreme Court denied review.

After pursuing an unsuccessful application for post-conviction relief, see Freeman v. State, 757 P.2d 1240 (Idaho Ct.App.1988), Freeman brought a habeas petition in state court. The state court of appeals, after remanding to correct a technical defect in the petition, see Freeman v. State Dep't of Corrections, 783 P.2d 324 (Idaho Ct.App.1989), affirmed the denial of habeas relief. Freeman v. State Comm'n of Pardons and Paroles, 809 P.2d 1171 (Idaho Ct.App.1991). The Idaho Supreme Court denied review.

Freeman argued in his state habeas petition that he had been denied meaningful parole consideration. He further alleged the existence of specific procedural due process violations, and the ex post facto application to him of an amended parole regulation. The Idaho Commission of Pardons and Paroles twice had denied him parole, in 1987 and in 1989. He raises essentially the same arguments in his second federal habeas petition.¹ 

A federal magistrate recommended after a hearing that the second federal petition be denied. The district court adopted the recommendation, and Freeman appealed. We have jurisdiction under 28 U.S.C. §§ 2253 and 2254.

DISCUSSION

Due Process

Freeman contends that the Commission denied him his federal due process rights by not providing him a more meaningful parole hearing.²  We affirm the district court's findings that the Idaho parole statute does not create a federally protected liberty interest. Therefore no constitutional due process guarantees attach to Idaho parole hearings.

A statute that merely creates the possibility of parole does not create a constitutionally protected liberty interest. Compare Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) with Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979). The Idaho parole statute does not set forth criteria, which once met, entitle an inmate to parole. See Idaho Code § 20-233 (Supp. 1993); cf. Neb. Rev. Stat. § 83-1, 114(1) (1976) (reproduced in Greenholtz, 442 U.S. at 11, and specifying that the Nebraska Board of Parole shall release an eligible inmate unless any of several listed circumstances exist(. Accordingly, Freeman's claim that the federal constitution entitled him to a more meaningful parole hearing must fail.

Ex Post Facto Objection

When Freeman committed his crimes, Commission regulations provided that each prisoner receive a live parole hearing at least once every 30 months. The Commission amended its regulation in April, 1982, to guarantee only a file review at 30 month intervals. Izatt, 661 P.2d at 765 & n. 2. The amended regulation apparently applied to all Idaho prisoners.⁴ 

Freeman maintains that the amended regulation is ex post facto as applied to him.⁵  The district court rejected the argument on the ground that the Commission's regulations are not "laws" within the language of the federal constitution's Ex Post Facto Clause. We agree.

We have never held that a state's parole regulations are insulated from ex post facto attack. On the contrary, we accepted long ago the idea that an administrative regulation can be a "law" within the meaning of the Ex Post Facto Clause. See, e.g., Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir.) (" [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"), vacated as moot, 409 U.S. 1100 (1972). Not every administrative pronouncement is a law. See, e.g., Wallace v. Christensen, 802 F.2d 1539, 1553-54 (9th Cir. 1986) (en banc) (guidelines promulgated by the United States Parole Commission are not laws for ex post facto purposes). In recent years we have identified "the operative factor in assessing whether a directive constitutes a 'law' for ex post facto purposes [as] the discretion that [a parole commission] retains to modify that directive or to ignore it altogether as the circumstances may require." Smith v. United States Parole Comm'n, 875 F.2d 1361, 1367 (9th Cir. 1989) (involving federal parole commission regulations).

Applying the operative factor here, we conclude that the Commission's amended regulation is not a law within the meaning of the Ex Post Facto Clause. The amended regulation allows the Commission, at its discretion, to determine the length between Freeman's live parole hearings on the basis of a nonexclusive list of considerations. Furthermore, the Commission has authority to amend the regulation again as it wishes, for Idaho Code Section 20-223 places no apparent restraint upon the Commission's discretion to extend or to restrict opportunities for a live parole hearing.⁶  Ex post facto concerns are absent when, as here, "a regulation serves not as a binding constraint on the administrative decisionmaking process, but merely as a guide to the proper exercise of discretion." Id. at 1367.

CONCLUSION

Freeman had no due process right to a more meaningful parole hearing under the Idaho parole statute. The amended parole regulation, which guides the Commission in determining when Freeman will receive his next live parole hearing, is not a law ex post facto as applied to him.

AFFIRMED.