Ellason v. Owens et al
Filing
18
ORDER denying 15 Motion to Alter Judgment.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, )
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
THOMAS ELLASON,
Plaintiff,
VS.
RISSIE OWENS, et al,
Defendants.
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§ CIVIL ACTION NO. C-11-378
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ORDER
Before the Court is Plaintiff’s “Motion to Alter or Amend Judgment With Brief
and Affidavit in Support” (D.E. 15). For the reasons set out below, the Motion is
DENIED.
Plaintiff is serving a life sentence for a Texas conviction for capital murder. He
seeks a determination that a change in the Parole Board’s policies necessitated by Ex
parte Franks, 71 S.W.3d 327 (Tex. Cr. App. 2001) violates the United States
Constitution, Article 1, section 10 (the Ex Post Facto clause) as applied to him. This
Court has been called upon to review this claim pursuant to the Prison Litigation Reform
Act. In screening his Complaint (D.E. 1), the Court accepts all allegations of fact as true.
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
According to Plaintiff, his crime took place in 1986, at a time when the Parole
Board interpreted a life sentence in Texas as if it were a sixty-year sentence for purposes
of determining eligibility for release to mandatory supervision. See Franks, supra at 329
(Johnson, J., dissenting). Under that calculation, some life-sentenced prisoners were
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actually released to mandatory supervision prior to Franks.
The Franks opinion
determined that calculations under the mandatory supervision statute could never provide
for the release of a prisoner serving a life sentence. It thus eliminated any prospect of
release for any life-sentenced prisoner.
In particular, the Texas Court of Criminal
Appeals held that its ruling applied to the statute as it existed from 1981 on, as the
substantive language had not appreciably changed. Franks, supra at 327-28.
In his Motion, Plaintiff re-urges his ex post facto claim, which the court distills as
follows:
Does a life-sentenced prisoner have a liberty interest in a
parole board policy that is violative of statutory language, but
was in place at the time he committed his crime sufficient to
warrant protection under the Ex Post Facto clause?
The Fifth Circuit has ruled that a prisoner does not have a liberty interest in parole
in Texas. Creel v. Keene, 928 F.2d 707, 712 (5th Cir.), cert. denied, 501 U.S. 1210, 111
S.Ct. 2809, 115 L.Ed.2d 982 (1991); Gilbertson v. Texas Bd. of Pardons & Paroles, 993
F.2d 74, 75 (5th Cir. 1993). However, he does have a liberty interest in good time credits
toward mandatory release. Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000).
The Court, in Malchi, did not state that the prisoner was serving a term of years
rather than a life sentence, although the facts of the case indicate a term of years. So it is
notable that the Court, seven years later, stated that prisoners “who are eligible” have a
liberty interest in good time credits toward mandatory release. Walters v. Quarterman,
258 Fed. Appx. 697, 698, 2007 WL 4372930, 1 (5th Cir. 2007). This would appear to
exclude life-sentenced prisoners. Furthermore, according to the Fifth Circuit, an ex post
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facto review is concerned with the “law” in place at the time of the conviction. See
generally, Pohl v. Livingston, 241 Fed. Appx. 180, 181, 2007 WL 2012904, 1 (5th Cir.
2007). This would appear to treat the statute as trumping any expectancy created by
agency or board policy that was not mandated by law. Id.
At the time of Plaintiff’s conviction, the relevant statute did not give the Parole
Board the discretion to substitute sixty years for a life sentence for purposes of
calculating mandatory release eligibility. The fact that the Parole Board misconstrued the
statute—until a court case corrected it—does not, in this Court’s opinion, implicate the
Ex Post Facto Clause. Very simply, according to Franks, the law did not change. A
prisoner given a sentence of “life” was never statutorily eligible for release to mandatory
supervision. This Court will not perpetuate the Parole Board’s mistake by granting it
constitutional proportions.
Plaintiff’s Motion (D.E. 15) is DENIED.
ORDERED this 6th day of March, 2012.
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Nelva Gonzales Ramos
United States District Judge
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