Altman, Lewis v. Frank, Matthew , 202 F. App'x 916 ( 2006 )


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  •                            UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted September 27, 2006*
    Decided October 4, 2006
    Before
    Hon. KENNETH F. RIPPLE, Circuit Judge
    Hon. ILANA DIAMOND ROVNER, Circuit Judge
    Hon. DIANE S. SYKES, Circuit Judge
    No. 06-1830
    LEWIS ALTMAN, JR.,                           Appeal from the United States District
    Plaintiff-Appellant,                     Court for the Western District of
    Wisconsin.
    v.
    No. 06 C 100
    MATTHEW J. FRANK,
    Defendant-Appellee.                      Barbara B. Crabb,
    Chief Judge.
    ORDER
    Wisconsin inmate Lewis Altman, Jr., sued the Secretary of the Department of
    Corrections under 
    42 U.S.C. § 1983
     claiming that the Wisconsin Parole Commission
    denied him due process and violated the Ex Post Facto Clause of the United States
    *
    The Attorney General of Wisconsin notified this court that the state was
    never served with process in the district court and would not be filing a brief or
    otherwise participating in this appeal. After examining 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).
    No. 06-1830                                                                       Page 2
    Constitution by deferring his parole date.1 The district court dismissed the suit for
    failure to state a claim upon which relief can be granted. We affirm.
    Mr. Altman began serving a 40-year sentence in 1993 after pleading guilty in
    a Wisconsin court to attempted first-degree homicide and reckless endangerment.
    At the time of his sentencing, a Wisconsin statute instructed that, unless there were
    “overriding considerations not to do so,” the Parole Commission should parole
    prisoners like Mr. Altman who completed their high school equivalency diploma
    while incarcerated. 
    Wis. Stat. § 304.06
    (1r) (1989-90). Effective July 1996, however,
    the Wisconsin legislature repealed this law.
    Mr. Altman first became eligible for parole in 2003, see 
    Wis. Stat. § 304.06
    (1)(b) (1993-94) (precluding parole eligibility until a prisoner has served at
    least 25 percent of his sentence), and was interviewed by the Parole Commission in
    2005. After the interview, the Commission elected to defer his parole eligibility for
    another 24 months. Mr. Altman sued under § 1983, arguing that, because he had
    obtained his high school equivalency diploma while in prison, the Commission
    should have followed former § 304.06(1r) and either granted him parole or
    explained the “overriding considerations” for not doing so. Mr. Altman contended
    that, by failing to follow the repealed statute and deferring his parole, the
    Commission denied him due process and violated the Ex Post Facto Clause, U.S.
    Const. art. 1, § 10, cl. 1. Because Mr. Altman requested declaratory relief for these
    alleged constitutional violations rather than his immediate or speedier release from
    prison, he properly brought suit under § 1983. See Wilkinson v. Dotson, 
    544 U.S. 74
    , 82 (2005).
    The district court dismissed Mr. Altman’s suit under 28 U.S.C. § 1915A for
    failure to state a claim upon which relief could be granted. We review § 1915A
    dismissals de novo and will affirm when it appears beyond doubt that the plaintiff
    cannot prove any set of facts that would entitle him to relief. Marshall v. Knight,
    
    445 F.3d 965
    , 968 (7th Cir. 2006).
    Mr. Altman does not have a protected liberty interest in obtaining parole
    under former § 304.06(1r) even though that statute was in effect at the time of his
    sentencing. Prisoners do not have a constitutional right to parole, and although
    state statutes couched in mandatory language may create a protected liberty
    1
    In its summary disposition of this case, the district court questioned whether
    Matthew Frank, the Secretary of the Department of Corrections, is the appropriate
    defendant. Because the state informed us that it would not be filing a brief due to
    lack of service in the district court, we do not have the benefit of the state’s position
    regarding the appropriate defendant. We thus take no position on the issue.
    No. 06-1830                                                                     Page 3
    interest in release on parole, Greenholtz v. Inmates of the Nebraska Penal &
    Correctional Complex, 
    442 U.S. 1
    , 7-8 (1979); Grennier v. Frank, 
    453 F.3d 442
    , 444
    (7th Cir. 2006), federal courts must defer to the finding of the state’s highest court
    in determining whether a particular state has, by statute, created a protected
    liberty interest, Heidelberg v. Illinois Prisoner Review Board & Kenneth P. Dobucki,
    
    163 F.3d 1025
    , 1026 (7th Cir. 1998). When the state’s highest court has not ruled
    on an issue, federal courts should adhere to the decision of the state’s appellate
    court unless there are “persuasive reasons” to believe the state’s highest court
    would hold otherwise. Allen v. Transamerica Ins. Co., 
    128 F.3d 462
    , 466 (7th Cir.
    1997). The Court of Appeals of Wisconsin has stated unequivocally that
    § 304.06(1r) did not create a liberty interest in parole for inmates who were
    sentenced while the statute was still in effect but became eligible for parole only
    after its repeal. State ex rel. Britt v. Gamble, 
    653 N.W.2d 143
    , 148 (Wis. Ct. App.
    2002). Furthermore, the appellate court explained that even prisoners who became
    eligible for parole while that statute was in effect did not have a liberty interest in
    parole release because the Parole Commission “retained discretion in granting
    release on parole in its subjective determination of whether there were ‘overriding
    considerations’ not to grant it.” 
    Id. at 149
    . We find no reason to believe the
    Supreme Court of Wisconsin would disagree with the view of the appellate court,
    and we thus agree with the district court that Mr. Altman has no cognizable due
    process claim.
    Mr. Altman’s argument that the Commission’s decision violated the Ex Post
    Facto Clause fails for the same reason. In considering an ex post facto challenge,
    our focus is “not on whether a legislative change produces some ambiguous sort of
    'disadvantage,' . . . but on whether any such change . . . increases the penalty by
    which a crime is punishable." Cal. Dep't of Corr. v. Morales, 
    514 U.S. 499
    , 506 n.3
    (1995). The Commission deferred parole for Mr. Altman on the basis of his unmet
    “treatment needs,” the nature of the offense for which he was incarcerated (“a
    relatively unprovoked shooting”), his criminal history and status as a repeat violent
    offender, and the Commission’s concern that releasing Mr. Altman on parole would
    put the public at risk. These factors would have been considered under § 304.06(1r)
    as “overriding considerations” that warranted denying parole even to otherwise
    eligible inmates. See Gamble, 
    653 N.W.2d at 149
    . Because the Commission simply
    exercised the same discretion to deny Mr. Altman parole in 2005 that it could have
    exercised under § 304.06(1r), the Commission’s failure to evaluate Mr. Altman
    under the old statute did not increase the penalty by which Mr. Altman’s claim was
    punishable. See Morales, 
    514 U.S. at 508-09
     (rejecting argument that any
    legislative change that might conceivably affect a prisoner’s punishment violates
    Ex Post Facto Clause); Grennier, 
    453 F.3d at 444
     (explaining that states risk
    violating Ex Post Facto Clause only when they change their laws “in ways that
    increase the punishment for earlier crimes”). Thus, the district court also properly
    concluded that the Commission did not violate the Ex Post Facto clause.
    No. 06-1830      Page 4
    AFFIRMED