Noel, Dennis v. Wells, Lenard , 192 F. App'x 538 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2006*
Decided June 5, 2006
Before
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3938
DENNIS NOEL, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin
v. No. 05-C-496-C
ALFONSO GRAHAM and Barbara B. Crabb,
WISCONSIN PAROLE COMMISSION,** Chief Judge.
Defendants-Appellees.
*
The appellees have notified this court that they will not file a brief in this
appeal due to lack of service in the district court. After an examination of the
appellant’s brief and the record, we have concluded that oral argument is unnecessary.
Thus, the appeal is submitted on the appellant’s brief and the record. See Fed. R. App.
P. 34(a)(2).
**
Pursuant to Fed. R. App. P. 43(c), Alfonso Graham is substituted for his
predecessor, Lenard Wells, as Chair of the Wisconsin Parole Commission.
No. 05-3938 Page 2
ORDER
Wisconsin inmate Dennis Noel is serving a life sentence and has been denied
parole on several occasions. He filed suit under 42 U.S.C. § 1983 claiming that the
Wisconsin Parole Commission and its chairman violated his constitutional rights by
reviewing his parole applications under a system that is structurally and
procedurally different than the system in place when he was convicted. The district
court screened the complaint under 28 U.S.C. § 1915A, and dismissed the suit for
failure to state a claim. Noel appeals and we affirm.
Noel was on parole for another murder when he killed a tavern owner outside
the tavern in 1981. He was sentenced to life in prison. He has been denied parole
several times since he was first turned down in 1992. He was rejected most
recently in 2004 and will not be up for reconsideration again until 2008.
After Noel committed the 1981 murder, Wisconsin restructured the
organization and procedures of the agency responsible for parole determinations.
These changes include making the parole board an independent commission, no
longer under the authority of the Secretary of the Department of Health and Social
Services. And parole applicants are no longer evaluated by a panel comprised of
two or more members; rather, inmates speak to just one of the several members of
the commission. But much like the system in place under the old procedures, the
current regulations authorize the chairman of the parole commission to reconsider
an individual commissioner’s decision any time an inmate demonstrates an
extraordinary situation. Compare Wis. Admin Code § PAC 1.07(5)(b) (2003) with id.
§ HSS 30.06(8) (1981).
As relevant here Noel claims that retrospective application of the new parole
procedures denies him due process and violates the Ex Post Facto Clause of the
Constitution. The district court rejected both of these theories. The court reasoned
that Wisconsin’s discretionary parole scheme does not create a protected liberty
interest, and thus Noel cannot argue that application of the new procedures denies
him due process. The court also reasoned that applying the new procedures to Noel
does not create a “significant risk of prolonging his incarceration,” and thus there is
no ex post facto concern. Our review is de novo. Westefer v. Snyder, 422 F.3d 570,
574 (7th Cir. 2005).
Convicted prisoners have a liberty interest in parole only if the state through
its statutes and regulations creates an expectation, rather than a mere chance, of
being granted parole. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 11-12 (1979); Heidelberg v. Illinois Prisoner Review Bd., 163 F.3d 1025, 1026
(7th Cir. 1998). Noel contends that the statutes and regulations in force in 1981
provided that “discretionary parole shall be granted if certain criteria outlined in
No. 05-3938 Page 3
the body of HSS 30 were deemed to have been met.” But Noel is wrong. The
governing statute in 1981 stated that the Department of Health and Social Services
“may parole an inmate of the Wisconsin state prisons . . . when he or she has served
20 years of a life term less the deduction earned for good conduct.” Wis. Stat.
§ 57.06(1) (1981) (emphasis added). Nowhere does the former statute mandate
release on parole. And as best we can tell, the regulations governing parole that
Noel cites in his brief were not enacted until approximately two months after he
killed the tavern owner; like the statute, those regulations did not create an
expectation of being granted parole. Although the regulations provided that parole
consideration “shall” involve several categories of factors, nowhere did those
regulations suggest that the decision whether to grant or deny parole prior to the
end of a sentence was anything but discretionary. See Wis. Admin. Code §§ HSS
30.01-30.07 (effective May 1, 1981). Similarly, Wisconsin’s current statute does not
create a liberty interest in parole; it merely states that “the parole commission may
parole an inmate serving a life term” after he has served 20 years. Wis. Stat.
§ 304.06(1)(b) (2003) (emphasis added). Because the possibility that Noel might be
paroled has always been wholly within the state’s discretion, he cannot have a
constitutionally protected liberty interest in early release. And without such an
interest, Noel cannot argue that the procedures used in making the discretionary
decision to deny him parole violated his due process rights. See Greenholtz, 442
U.S. at 11-12; Huggins v. Isenbarger, 798 F.2d 203, 206 (7th Cir. 1986).
Nor can Noel establish a violation of the Ex Post Facto Clause given the legal
theory he advances. To prevail Noel would have to demonstrate that the parole
procedures adopted after he committed his most recent murder are facially more
harsh than those they replaced or, barring that, that the new procedures create a
significant risk of prolonging his incarceration. See Garner v. Jones, 529 U.S. 244,
251 (2000); Glascoe v. Bezy, 421 F.3d 543, 547 (7th Cir. 2005). Noel does not make a
facial challenge and instead claims that the new procedures pose a significant risk
that he will serve more time in prison. But on that question Noel has pleaded
himself out of court. See Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir.
1995). As we read his complaint, he simply contends that he faces an increased risk
of prolonged incarceration because application of Wisconsin’s current regulations
allows for his parole application to be evaluated by just one parole commissioner,
whereas the regulations in place in 1981 required such consideration to be made by
at least two members of the parole board. Compare Wis. Admin. Code § PAC
1.06(4) (2003) with id. § HSS 30.05(4) (1981). Noel presumes that a single evaluator
will always be prejudiced against him, but we do not understand why that must be
so. As the district court noted, the prospect that a single commissioner’s bias will
control the outcome is a concern for the state as well as the inmate, if it is a concern
at all. And that is the real problem with Noel’s contention: he speculates that
having fewer evaluators will adversely affect his chances of gaining parole, but that
No. 05-3938 Page 4
speculation could not establish a significant risk that his time in prison will be
prolonged. See Calif. Dep’t of Corrections v. Morales, 514 U.S. 499, 508-09 (1995).
Accordingly, the district court was correct to dismiss this claim as well.
AFFIRMED.