649 F.3d 423
6th Cir.2011Background
- Keith Lewis-El is serving a non-parolable life sentence for first-degree felony murder in Michigan.
- Parole board reviews and governor's commutation power govern whether his sentence may be commuted.
- Initially, Lewis-El alleges the grid from MDOC PD-DWA-45-12 set a 27-year benchmark for commutation eligibility.
- MDOC policy directives later replaced the grid with a discretionary interview-based process for life-sentence prisoners (PD 06.05.104(L)).
- Lewis-El had interviews/reviews in 1992, 1997, 2002, 2007 with no commutation recommendation; grid would have suggested eligibility by 2010/2012.
- District court sua sponte dismissed, holding no Ex Post Facto violation; Lewis-El appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether changes to commutation procedures violate Ex Post Facto | Lewis-El claims grid removal increases risk of longer punishment. | Board/governor discretion prevents actionable Ex Post Facto claim. | No Ex Post Facto violation; discretion defeats significant risk. |
| Ripeness of ex post facto claim given discretionary review | Claim ripe due to ongoing reviews and past grid reliance. | Discretionary processes undermine actionable injury; not ripe. | Claim is ripe; substantial discretion precludes remedy. |
| Whether the two-layer discretion (parole board and governor) negates liability | Grid removal harms chance of commutation; reduces likelihood of relief. | Governor's unfettered discretion makes any risk unpredictable and non-cognizable. | Discretionary framework forecloses sufficient likelihood of increased punishment; no liability. |
Key Cases Cited
- Garner v. Jones, 529 U.S. 244 (2000) (focus on risk of time actually served, not mere law-change)
- Michael v. Ghee, 498 F.3d 372 (6th Cir. 2007) (tests for ex post facto focus on actual time served)
- Foster v. Booker, 595 F.3d 353 (6th Cir. 2010) (no ex post facto where changes affect parole process discretion)
- Snodgrass v. Robinson, 512 F.3d 999 (8th Cir. 2008) (unfettered governor discretion; changes to review did not create significant risk)