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Changes in Texas Parole Laws Violate Ex Post Facto Clause
by Matt Clarke
On March 29, 2007, a federal court ruled that changes in Texas parole laws, practices and procedures violated the federal ex post facto clause when applied retroactively.
Barry Michael Wion, a Texas state prisoner, was convicted in 1985 of three sex offenses involving children and sentenced to 99 years in prison. In 1997, the Texas Legislature passed SB 45, later codified as Texas Government Code § 508.046, which singled out certain sex offenders and prisoners with capital life sentences for special negative treatment during parole hearings.
After being denied parole in 2004, Wion filed state habeas actions challenging the changes resulting from SB 45 and related changes in parole practices as being ex post facto violations when retroactively applied to his case. His state habeas petitions were dismissed. He then filed a federal habeas action under 28 U.S.C. § 2254.
As a preliminary matter, the district court found that Wion’s habeas petition was timely filed. In so ruling, the court counted his request for a special review by the parole board as an attempt to exhaust state remedies, and the one-year limitations period did not begin until after the special review was denied. Alternately, the court found that the period of time before the denial of the requested special review qualified for equitable tolling of the limitations period.
Wion complained that under § 508.046 he was now required to achieve a two-thirds supermajority vote of the entire statewide parole board instead of a majority of a three-person parole panel, and that the parole board had adopted an informal “serve all” policy for multiple aggravated sex offenders that effectively changed his parole eligibility date from 2004 to 2020. Wion supported his habeas petition with voluminous exhibits.
When he attempted to submit a report by the Texas Criminal Justice Policy Council titled Goal Met: Violent Offenders in Texas are Serving a Higher Percentage of Their Prison Sentences, which stated that a “key goal of the Texas criminal justice reforms of the 1990’s has been to increase the percent of sentences served in prison for violent offenders,” the state objected. However, the district court held that the report merely added conveniently-presented statistics to back up pre-existing claims and previously-submitted data, and did not add a new claim. Wion was thus allowed to introduce the report.
The court held an evidentiary hearing on January 10, 2007, in which Wion was represented by appointed counsel. Witnesses testified that prisoners subject to the provisions of SB 45 were now “flagged for special parole consideration in a manner they were not singled out in 1984.” Wion presented evidence at the hearing that he was unlikely to ever obtain parole under the provisions of SB 45. The state court had only considered the change to the parole board voting count in making its decision, not the other changes wrought by SB 45 that were designed to prevent prisoners like Wion from ever obtaining parole.
Consequently, the federal district court found that the state court had “engaged in an unreasonable application of Supreme Court precedent” in denying Wion relief. The court held that the changes resulting from SB 45 and attendant changes in parole practices constituted an ex post facto violation as they retroactively increased the length of time that Wion would serve. The court ordered that Wion’s next scheduled parole review be conducted under the laws in effect in 1985.
Both the state and Wion have since appealed to the Fifth Circuit, with Wion seeking an immediate parole hearing under the 1985 parole laws. See: Wion v. Dretke, U.S.D.C. (WD TX), Case No. 7:05-cv-00146-RAJ. PLN will report the Fifth circuit ruling when it is issued.
On March 29, 2007, a federal court ruled that changes in Texas parole laws, practices and procedures violated the federal ex post facto clause when applied retroactively.
Barry Michael Wion, a Texas state prisoner, was convicted in 1985 of three sex offenses involving children and sentenced to 99 years in prison. In 1997, the Texas Legislature passed SB 45, later codified as Texas Government Code § 508.046, which singled out certain sex offenders and prisoners with capital life sentences for special negative treatment during parole hearings.
After being denied parole in 2004, Wion filed state habeas actions challenging the changes resulting from SB 45 and related changes in parole practices as being ex post facto violations when retroactively applied to his case. His state habeas petitions were dismissed. He then filed a federal habeas action under 28 U.S.C. § 2254.
As a preliminary matter, the district court found that Wion’s habeas petition was timely filed. In so ruling, the court counted his request for a special review by the parole board as an attempt to exhaust state remedies, and the one-year limitations period did not begin until after the special review was denied. Alternately, the court found that the period of time before the denial of the requested special review qualified for equitable tolling of the limitations period.
Wion complained that under § 508.046 he was now required to achieve a two-thirds supermajority vote of the entire statewide parole board instead of a majority of a three-person parole panel, and that the parole board had adopted an informal “serve all” policy for multiple aggravated sex offenders that effectively changed his parole eligibility date from 2004 to 2020. Wion supported his habeas petition with voluminous exhibits.
When he attempted to submit a report by the Texas Criminal Justice Policy Council titled Goal Met: Violent Offenders in Texas are Serving a Higher Percentage of Their Prison Sentences, which stated that a “key goal of the Texas criminal justice reforms of the 1990’s has been to increase the percent of sentences served in prison for violent offenders,” the state objected. However, the district court held that the report merely added conveniently-presented statistics to back up pre-existing claims and previously-submitted data, and did not add a new claim. Wion was thus allowed to introduce the report.
The court held an evidentiary hearing on January 10, 2007, in which Wion was represented by appointed counsel. Witnesses testified that prisoners subject to the provisions of SB 45 were now “flagged for special parole consideration in a manner they were not singled out in 1984.” Wion presented evidence at the hearing that he was unlikely to ever obtain parole under the provisions of SB 45. The state court had only considered the change to the parole board voting count in making its decision, not the other changes wrought by SB 45 that were designed to prevent prisoners like Wion from ever obtaining parole.
Consequently, the federal district court found that the state court had “engaged in an unreasonable application of Supreme Court precedent” in denying Wion relief. The court held that the changes resulting from SB 45 and attendant changes in parole practices constituted an ex post facto violation as they retroactively increased the length of time that Wion would serve. The court ordered that Wion’s next scheduled parole review be conducted under the laws in effect in 1985.
Both the state and Wion have since appealed to the Fifth Circuit, with Wion seeking an immediate parole hearing under the 1985 parole laws. See: Wion v. Dretke, U.S.D.C. (WD TX), Case No. 7:05-cv-00146-RAJ. PLN will report the Fifth circuit ruling when it is issued.
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Related legal case
Wion v. Dretke
| Year | 2009 |
|---|---|
| Cite | U.S.D.C. (WD TX), Case No. 7:05-cv-00146-RAJ |
| Level | District Court |
| Injunction Status | N/A |