Case: 13-12738    Date Filed: 06/02/2015   Page: 1 of 15


                                                                     [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12738
                       ________________________

                D.C. Docket No. 6:13-cv-00745-PCF-DAB



BEN E. JONES,

                                                            Plaintiff-Appellant,

                                  versus

STATE OF FLORIDA
PAROLE COMMISSION,
ET AL.,

                                                         Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (June 2, 2015)
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Before MARCUS and JILL PRYOR, Circuit Judges, and HINKLE, * District
Judge.

HINKLE, District Judge:

       In this case a Florida prisoner challenges a statute widening the permissible

gap between parole interviews. The district court dismissed the complaint for

failure to state a claim on which relief can be granted. We affirm.

                                                I

       A Florida state court convicted the appellant Ben E. Jones on two counts of

sexual battery. The crimes occurred in December 1978 and February 1979. The

court sentenced Mr. Jones to life in prison. His offenses were parole eligible.

       At that time Florida law required the Florida Parole Commission to conduct

an initial interview and subsequent interviews at least every two years. Fla. Stat.

§§ 947.172, 947.174(1) (1978); see also Tuff v. State, 

, 462 n.1

(Fla. 3d DCA 1999) (noting the every-two-year requirement).

       In 2001, the Legislature adopted a statute allowing the Parole Commission

to schedule interviews up to five years apart for offenders convicted of specific

serious crimes, including sexual battery. Ch. 2001-124, Laws of Fla. (2001). In

2010, the Legislature adopted a statute allowing the Commission to increase the

interval to seven years. Ch. 2010-95, Laws of Fla. (2010).


       *
          Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
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      Mr. Jones’s most recent interview was in 2012. The complaint alleges that

Mr. Jones’s next interview is scheduled for five years later. Mr. Jones filed this

federal lawsuit in 2013 challenging the Commission’s procedures on various

grounds, including on the ground that the five-year interval between interviews

violates the Ex Post Facto Clause.

      The district court screened the complaint at the outset as required by the

Prison Litigation Reform Act. See 28 U.S.C. § 1915A. The court dismissed the

complaint for failure to state a claim on which relief can be granted. The court

relied on Penoyer v. Briggs, 206 F. App’x 962 (11th Cir. 2006) (unpublished),

which affirmed the dismissal of a complaint challenging on Ex Post Facto grounds

the Florida statute that increased the permissible interval between parole interviews

to five years.

      Mr. Jones moved for reconsideration, asserting, among other things, that it

was error to dismiss the complaint without leave to amend. Mr. Jones did not

tender an amended complaint or suggest what new allegations any amended

complaint would include. The district court denied the motion for reconsideration.

      Mr. Jones appeals. We address the Ex Post Facto claim and reject Mr.

Jones’s other claims without discussion.




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                                           II

      To avoid dismissal for failure to state a claim on which relief can be granted,

a complaint must include “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 

, 678 (2009). The complaint’s factual allegations,

though not its legal conclusions, must be accepted as true. Id.; see also Bell Atl.

Corp. v. Twombly, 

, 555 (2007).

      Mr. Jones is proceeding pro se. A pro se pleading is held to a less stringent

standard than a pleading drafted by an attorney; a pro se pleading is liberally

construed. Hughes v. Lott, 

, 1160 (11th Cir. 2003). Even so, a pro

se pleading must suggest (even if inartfully) that there is at least some factual

support for a claim; it is not enough just to invoke a legal theory devoid of any

factual basis.

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim for relief under 28 U.S.C. § 1915A(b). Harden v. Pataki, 

,

1292 (11th Cir. 2003).

                                          III

      In 1983, Florida abolished parole for most new crimes. Ch. 83-87, Laws of

Fla. (1983). But offenders who, like Mr. Jones, committed crimes before that time

remain eligible for parole. The Florida Parole Commission (now known as the


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“Florida Commission on Offender Review”) is the agency that administers the

parole system.

      The general framework that applied when Mr. Jones committed his crimes

remains in place today. A hearing examiner conducts an initial interview and

determines the offender’s presumptive parole release date (“PPRD”) based on

objective guidelines. Subsequent interviews are “limited to determining whether

or not information has been gathered which might affect the presumptive parole

release date.” Fla. Stat. § 947.174(1) (1978). A PPRD can be modified only (1)

based on new information, (2) based on institutional conduct, or (3) “for good

cause in exceptional circumstances.” Fla. Stat. §§ 947.16(4), 947.172(3),

947.173(3) (1978); McKahn v. Fla. Parole and Prob. Comm’n, 

, 478

(Fla. 1st DCA 1981).

      The Florida Legislature has twice modified § 947.174 to allow the Parole

Commission to extend the interval between subsequent interviews for offenders

convicted of specific serious crimes, including sexual battery. Mr. Jones did not

challenge the first increase, to five years, when it took effect in 2001, and the

statute of limitations has run on any challenge to that increase. See Lovett v. Ray,

, 1182-83 (11th Cir. 2003) (holding that the limitations period for a

challenge to a change in the frequency of parole consideration runs from the date

when the offender learns of the change, not the date of parole consideration, and


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that the continuing-violation doctrine does not apply). But Mr. Jones now

challenges the scheduling of his next interview five years out, and, at least in this

court, Mr. Jones challenges the statutory increase in the permissible interval

between interviews to seven years, which took effect in 2010. His challenge to

that increase is not time barred.

                                            IV

      The United States Constitution prohibits a state from passing an “ex post

facto Law.” U.S. Const. art. I, § 10. The prohibition extends to laws that

“retroactively alter the definition of crimes or increase the punishment for criminal

acts.” Collins v. Youngblood, 

, 43 (1990). This includes an increase

in punishment resulting from a change in a state’s parole system.

                                             A

      The Supreme Court has twice considered—and twice rejected—an Ex Post

Facto challenge to a state’s increase in the interval between parole reviews.

      First, in California Department of Corrections v. Morales, 

(1995), an offender committed a crime while a statute was in effect that required

the state parole board to conduct an initial hearing and subsequent hearings at least

annually. An amendment allowed the parole board to increase the interval between

hearings to two years, upon a finding (on a basis stated by the parole board) that




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the offender was unlikely to be paroled during the interim. 

The

parole board could conduct a hearing sooner if warranted. 

      The Ninth Circuit held that the amendment violated the Ex Post Facto

Clause. Morales v. Cal. Dep’t of Corr., 

(9th Cir. 1994). The

Supreme Court reversed, concluding that a change in parole procedures violates

the Ex Post Facto Clause only if it creates a sufficient risk that offenders will

actually serve more time in prison. See 

514. The Court explicitly

declined to adopt a test for determining when a risk is sufficient, but the Court said

not every conceivable risk is enough. 

And the Court said the

amendment at issue did not create a sufficient risk; it created “only the most

speculative and attenuated possibility of producing the prohibited effect”—that is,

of increasing offenders’ punishment. 

      Similarly, in Garner v. Jones, 

(2000), an offender committed a

crime in Georgia while the state parole board’s policies called for consideration of

parole every three years. The board changed the policies to increase the interval to

eight years. 

The policies vested the board with discretion to set an

earlier date and allowed an offender to seek expedited review upon a change in

circumstances. 

      We held that the change in policies violated the Ex Post Facto Clause. Jones

v. Garner, 

(11th Cir. 1999). But again the Supreme Court disagreed.


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The Court said the issue was whether the new policies created a significant risk of

prolonging the offender’s time in prison and that nothing inherent in the new

policies created such a 

. The Court remanded for this court or

the district court to consider whether the offender should be allowed discovery into

the actual effect of the new policies in operation.

                                           B

         Together Morales and Jones compel rejection of the claim that the Florida

statutory change at issue here is facially unconstitutional. Here, as in Morales and

Jones, the interval between parole assessments has increased. But here, as in

Morales and Jones, the substantive policies that govern parole have remained the

same. And here the risk that the change will increase an offender’s actual

punishment is no greater than—indeed, probably less than—the risk in Morales or

Jones.

         This is so because here, as in Morales, the Commission can delay a periodic

review only upon finding, on grounds set out in writing, that an offender is

unlikely to be paroled in the interim. Here, as in Morales and Jones, an earlier

periodic review can be scheduled, as a matter of discretion, if circumstances

change. And here, much more than in Morales or Jones, the scope of a periodic

review is limited. In Florida each offender has an objectively determined PPRD

that can be changed only on specified grounds. The subject of subsequent


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interviews is not a freewheeling consideration of factors that might impact a

discretionary parole decision; the subject of subsequent interviews is limited to

whether there are grounds to change the PPRD. At least on its face, this suggests

that the determination to delay an interview can be made more reliably, and the

chance that the delay will impact the actual parole date is less, than in California or

Georgia.

      To be sure, Mr. Jones points to other differences in the California, Georgia,

and Florida provisions that he says cut the other way. The California change

applied to those convicted of two or more murders—a category one hopes is quite

small. The Georgia change applied to offenders serving life sentences. The

Florida change applies only to specific offenses, see Fla. Stat. § 947.174(1)(b), but

the category is broader than in California or Georgia. Still, Florida abolished

parole long ago, so the number of affected offenders may not be large. More

importantly, the Ex Post Facto Clause protects all comers; if the California or

Georgia change had violated the Clause, the fact that the change impacted only a

limited category of offenders would not have saved it. The critical issue is whether

a change creates a significant risk of producing the prohibited effect, not whether it

will have the prohibited effect on all of a state’s offenders or only a limited

category.




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      Mr. Jones also complains that Florida law allows the Commission to

schedule an earlier interview based on changed circumstances but does not allow

an offender to initiate the process. Still, nothing in Florida law prohibits an

offender from bringing circumstances to the Commission’s attention and asking for

an earlier interview. That the offender cannot compel an earlier interview is not

surprising and does not meaningfully distinguish the case from Morales or Jones.

In California and Georgia, an offender can request, but cannot compel, earlier

consideration.

      Here, as in Morales and Jones, nothing inherent in the state’s decision to

enlarge the maximum period between parole considerations poses a significant risk

that offenders will serve more time in prison. The Florida change is not facially

unconstitutional.

                                           C

      That leaves for consideration Mr. Jones’s claim that the Florida change is

unconstitutional as applied to him. The easiest answer may be that according to

Mr. Jones’s own complaint, he is scheduled for an interview just five years after

his last interview in 2012. The statutory increase in the maximum authorized

interval to seven years apparently has not affected Mr. Jones at all; if this is

correct, the change cannot yet have been unconstitutional as applied to him.




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      More importantly, Mr. Jones has alleged no facts suggesting that an earlier

interview would make any difference in his case at all. In 2012, when the

Commission set Mr. Jones’s next interview five years out, the Commission was

required to find that he was unlikely to be paroled prior to that time. The

Commission was required to state the grounds for that determination in writing.

An earlier interview could make a difference only if Mr. Jones could qualify for a

change in his PPRD based on new information, based on institutional conduct, or

“for good cause in exceptional circumstances.” See Fla. Stat. §§ 947.16(4),

947.172(3), 947.173(3) (1978). Mr. Jones has not alleged facts showing any of

these prerequisites to a change in his PPRD. And although Mr. Jones says he

should have been given leave to amend his complaint, he did not proffer in the

district court, and he has not proffered even now, any facts showing any of the

prerequisites to a change in his PPRD.

      In short, Mr. Jones has alleged no facts suggesting his parole prospects will

be different in 2017, or even in 2019, than they were in 2012. We have recognized

that in the absence of a showing that an earlier interview would have made a

difference, a delayed interview does not violate the Ex Post Facto Clause. See

Jones v. Ray, 

, 946 (11th Cir. 2001).

      Mr. Jones cites statistics showing a precipitous decline in the number of

offenders paroled in Florida. But the primary explanation for that decline is clear


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and unrelated to the change in the frequency of parole interviews. Florida

abolished parole in 1983. With every passing year—with every release of a

parole-eligible offender who has served an entire sentence or been paroled—the

number of parole-eligible inmates decreases. Florida would have had a precipitous

decline in the number of offenders released on parole with or without a change in

the interview schedule.

      Mr. Jones also says he must participate in a transitional program to be

approved for parole but cannot enroll in the program until he nears release—a

catch-22 that denies him (and others) an opportunity for earlier-than-projected

release. The argument seems to confuse the cause with the effect. Completion of

the program does not cause parole eligibility. Instead, the program is provided

near a projected release date because that is when an offender will transition out of

prison and thus needs to participate in the program. In any event, there is no

apparent connection between any of this and the change in the interview schedule.

If, as seems unlikely, there is really a catch-22, then it exists whether interviews

are conducted every two or five or seven years.

      Finally, Mr. Jones notes that he has already served more than 30 years on his

sentence and is 77 years old. The suggestion apparently is that he has served long

enough and should be paroled. But Florida law affords an offender no right to

parole, even after decades in prison or at age 77. Florida instead establishes a


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PPRD based on objective criteria and limits the circumstances under which the

PPRD can be changed. This was the substantive law when Mr. Jones committed

his crimes, and it is the substantive law now. The Ex Post Facto Clause affords an

offender no relief from the law that was in effect when a crime was committed.

      Florida’s statutory change in the maximum permissible interval between

parole interviews is not unconstitutional as applied to Mr. Jones.

                                          D

      In reaching these conclusions, we have not overlooked our decisions

allowing offenders who challenged the Georgia policy change at issue in Jones to

take discovery or present evidence on the actual effects of the policy change. See

Jones v. Garner, 

, 1225 (11th Cir. 2000) (on remand from the

Supreme Court, remanding in turn to the district court “to determine, after

permitting sufficient discovery, whether the [new Georgia policy] in its operation

created a significant risk of increased punishment for” the plaintiff); Harris v.

Hammonds, 

, 1350 (11th Cir. 2000) (concluding that challenges to

the Georgia policy change must be addressed on a case-by-case basis, noting that

the case was decided in the district court before the Supreme Court decided Jones,

and remanding to provide the offender “the opportunity to make the showing

required by the Supreme Court in Jones.”).

      Those cases are different from this one in three important respects.


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       First, Jones and Harris arose in Georgia, where the substantive standards that

govern parole are much different than in Florida. When each subsequent

consideration of an offender’s possible parole is wide open, the chance that the

interval will make a difference is greater than when the issues at the subsequent

consideration are as circumscribed as in Florida. And in Florida, unlike in

Georgia, the interview can be delayed only on an explicit written finding that the

offender is unlikely to be paroled in the interim. The California statute at issue in

Morales had the same requirement for an explicit finding, and the Supreme Court

held the statute constitutional; the Court did not remand for further proceedings as

it did in Jones.

       Second, the offenders in Jones and Harris had no advance notice, when they

originally presented their cases in the district court, of the standard the Supreme

Court would later adopt in Jones. This made it appropriate to give the offenders

another chance to plead and make a case in the district court.

       And third, Mr. Jones, unlike the offenders in those cases, still has been

unable to allege facts that would make a difference—facts that, in Mr. Jones’s

case, would support a change in his PPRD and an earlier release. It is not enough

that the Florida change in the interview schedule conceivably could affect another

offender, or even many other offenders. Mr. Jones has alleged no facts plausibly

suggesting the change has adversely affected him. Even in Georgia, the absence of


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such a showing is fatal to an offender’s Ex Post Facto claim. See Jones v. Ray,

, 946 (11th Cir. 2001).

      That other offenders under other circumstances were afforded an opportunity

to take discovery or present evidence does not mean that Mr. Jones is entitled to

the same opportunity. Mr. Jones has not alleged facts plausibly suggesting that he

is at a significant risk of increased time in prison as a result of the Florida statute

allowing longer intervals between parole interviews. The district court properly

screened Mr. Jones’s complaint as required by the Prison Litigation Reform Act

and properly dismissed the complaint for failure to state a claim on which relief

can be granted.

                                            V

      For these reasons, the judgment of the district court is affirmed.




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