Jersey, the frequency of his parole hearings decreased because
federal parole rules applied to him, but this did not constitute
a violation of the ex post facto clause.
Moreover, Petitioner is incorrect when he argues that the
rehearing schedule for civilian prisoners is being retroactively
applied to him. He committed his offense in 1982, and the
24-month rehearing schedule was in effect at that time. See 42
Fed. Reg. 39809 (Aug. 5, 1977). The statutory provision requiring
that transferred military prisoners be "subject to the same
discipline and treatment" as other civilian prisoners*fn14
was also in effect at that time. Therefore, the application of
this provision to Petitioner is not retroactive.
Furthermore, Petitioner argues that the change in the
frequency of the parole hearings increases his punishment and
thereby violates the ex post facto clause. (Pet. at 1.) As noted
above, the change in the frequency of rehearings does not
increase the punishment already imposed on Artis. The Supreme
Court in Morales noted that "the question of what legislative
adjustments `will be held to be of sufficient moment to
transgress the constitutional prohibition' must be a matter of
`degree.'" 514 U.S. at 509, 115 S.Ct. 1597 (quoting Beazell v.
Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925))
(emphasis in original).
Petitioner has not identified any disadvantage arising from
biennial rather than annual hearings. His claim that he has been
disadvantaged is speculative at best. The Commission, after
considering the severity and brutality of his offense, decided
that Petitioner is not suitable for parole until he has served
fifteen additional years in custody.*fn15 Under these
circumstances, where there is no reasonable probability that
Artis will be deemed suitable for parole at any point
substantially before his fifteen year reconsideration date, he
has not been prejudiced. Therefore, there is no violation of the
ex post facto prohibition in this case. See Romey v. Vanyur,
9 F. Supp.2d 565, 572 (E.D.N.C. 1998) (change of military prisoner
to Bureau of Prisons ("BOP") custody, by reason of which he
became subject to Commission's parole jurisdiction, did not
increase his punishment; court stated that "it is unclear that a
delay in a parole hearing constitutes punishment at all").
Moreover, if Petitioner's circumstances were to change
substantially, he would still have the opportunity to present
his changed circumstances to the Commission for its
consideration, in the form of a motion to reopen the parole
process for new favorable information. See
28 C.F.R. § 2.28(a).*fn16 This regulation provides Petitioner with the
potential for relief and precludes speculation as to whether he
might be denied deserved relief while he waits for his biennial
parole hearing. (Resp't's Br. At 11).
For the reasons stated above, Mr. Artis's petition for a writ
of habeas corpus
pursuant to 28 U.S.C. § 2241 will be denied.