FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 07 2000 THOMAS K. KAHN CLERK PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

____________________ No. 99-10646

____________________ Docket No. 96-00278-5-CV-1-CWH WILLIS L. METHENY, on behalf of himself and all other members of his class, EDWARD LANG, on behalf of himself and all other members of his class, et al., Plaintiffs-Appellees, versus GARFIELD HAMMONDS, JR., Chairman of the Georgia State Board of Pardons and Paroles and in his official capacity, Defendant-Appellant.

________________ Appeal from the United States District Court for the Middle District of Georgia

_________________ (July 7, 2000)

Before EDMONDSON and MARCUS, Circuit J udges, and STROM*, District Judge.

________________ * Honorable Lyle E. Strom, U.S. District J udge for the District of Nebraska, sitting by designation.. EDMONDSON, Circuit Judge:1 Only four plaintiffs are in this case: W illis Metheny, Edward Lang, Paul Ivey, and Charlie Pritchett. Even though their complaint alleged a class action, no class action has been certified by the district court. 2 Plaintiffs, inmates sentenced under Geor gia’s recidivist statute, O.C.G.A. § 17- 10-7(c), brought a section 1983 suit alleging th at the Georgia parole board’s decision to eliminate Plaintiffs’ parole eligibility violated the Ex Post Facto Clause, and alternatively, the Due Process Clause. The magistrate judge granted summary judgment for Plaintiffs. We vacate and remand.

BACKGROUND

Plaintiffs are four Georgia state inma tes who were convict ed under the Georgia recidivist statute. 1 That statute, which was enacted originally in 1953, provides: [a]ny person who, after having beenconvicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon c onviction for such fourth offense or for subsequent offenses, serv e the maximum time provided in the sentence of the judge based upon su ch conviction and shall not be eligible for parole until the maximum sentence has been served.2 When plaintiffs were convicted the recidivist statute was codified at O.C.G.A. § 17-10-7(b). An amendment to the statute recodified it, wit hout any changes to the language, in subsection (c). We shall hereinafter refer to the statute by its current codification at O.C.G.A. § 17-10-7(c). 3 The advisory opinions stated, in part: “[I]nsofar as it would affect the granting of pardons and paroles, [§ 17-10-7(c)] is unconstitutional, void, a nd of no effect, and you would be authorized to ignore it in the consideration of applicants for parol[ e]. . . . It is generally recognized that when the Constitution confers powers of pardon and paro le upon a designated board, such powers are not subject to legislative control or restriction excep t as provided in the C onstitution itself.” Ga. Op. Att’y Gen. 1954-56, at 591 (Sept. 30, 1955); accord Ga. Op. Att’y Gen. 69-431 (Oct. 10, 1969). These opinions, however, are not law, but at most persuasive legal authority. See Campbell v. Poythress , 456 S.E.2d 110, 111 (Ga. Ct. App. 1995). 4 And in January 1995, a constitutional amendment, which ratified previously enacted general laws restricting the Board’s authority, went into effect. Ga. Const. Art. IV, § II, ¶ II(b)(4) (“Any 3 O.C.G.A. § 17-10-7(c) (emphasis added). 2 For many years, this statute was not applied by the Georgia Board of Pardons a nd Paroles (the “Board”). Two Georgia Attorneys General had issued advisory opinions stating that the statute was an unconstitutional infringement on the Board’ s power under the Georgia Constitution and informing the Board that it was authorized to grant parole to recidivists convicted under the statute. 3 Then in 1994, an appellate court spoke to the issue of the statute’s validity for the first time. The Georgia Suprem e Court decided Freeman v. State , 440 S.E.2d 181 (Ga. 1994), which held that a similar statute -- which declared that certain crimes carry a life sentence without parole -- does not violate the constitutional authority of the Board because the statute “renders the defe ndant ineligible for parole in the first instance.” Id. at 184. 4 In the wake of the Georgia Supreme Court opinion, Georgiageneral law previously enacted by the General A ssembly providing for life without parole or for mandatory service of sentences without suspension, probation, or parole is hereby ratified and approved . . . .”). 5 A later opinion by the Attorney General stated that the denial of parole eligibility to recidivists convicted before the state constitutional amendmen t would not violate the Ex Post Facto Clause: “[S]ince the provisions of statut es like . . . former O.C.GA. § 17-10-7(b) were validated as constitutional under Freeman prior to the enactment of the Reform Act [and the constitutional amendment], there is no retroactive application of maximum sentences in those instances. The General Assembly rendered recidivists ‘ineligible for parole in the first inst ance.’ Thus, the Board’s power and authority are not invoked in those cases. This analysis confirms the advice rendered by this Office in [1995].’” Ga. Op. Att’y Gen. 97-10 (Mar. 18, 1997). 6 The Board has amended its rules and regulations to limit parole eligibility to those for whom parole is authorized by law. See Ga. Comp. R. & Regs. r. 475-3- .06. Since ineligibility for parole is now codified in the regulati ons, we do not address whether a me re policy of the Board would be “law” subject to the Ex Post Facto Clause. 4 Attorney General Michael Bowe rs issued an official opini on to the Chairman of the Board stating that the Board’s authority to grant parole to recidivists was limited by the statute: the legislature could constitutionally enact statutes denying parole for certain crimes. 5 Therefore, in 1995, the Board began a pplying the statute, redetermining the parole eligibility of inmates senten ced under O.C.G.A. § 17-10-7(c), and denying parole to recidivists. 6 And in 1998, the Georgia Supreme Court ruled that theapplication of O.C.G.A. §17-10-7(c) to recidivists sentenced in 1990 -- that is, preFreeman -- was constitutional. See Moore v. Ray , 499 S.E.2d 636, 637 (Ga. 1998). When all four Plaintiffs committed their crimes, the Board was still not applying the statute and was granting parole to persons convicted under the recidivist7 In 1995, all four Plaintiffs received letters in forming them that, due to the opinion of the Attorney General concluding that inmates senten ced pursuant to O.C.G.A. 17-10-7(c) could not be paroled, Plaintiffs would no longer be considered eligible for parole. For example, Plaintiff Metheny had received a tentative parole date of April 1995. Then, in March 1995, Plaintiff was notified that he was no longer eligible for parole and must serve his entire sentence. 8 The final disposition of this case was decided by a magistrate judge by express consent of the parties. 5 statute. Plaintiffs have since been notif ied that they are ineligible for parole. 7 They brought this 42 U.S.C. § 1983 suit alleging (1) that the Board’s elimination of Plaintiffs’ parole eligibility violates the Ex Post Facto Clause, U.S. Const. Art. I, § 10, and, in the alternative, (2) that th e Due Process Clause, U.S . Const. Amend. 14, has been violated through the Georgia Supr eme Court’s unforeseeable and retroactive interpretation of state law penalizing Plain tiffs. The parties filed cross motions for summary judgment. The magistrate judge concluded that the Board’s retroactive application of its rules on parole violated the Ex Post Facto Clause and granted Plaintiffs’ motion for summary judgment. 8

DISCUSSION

EX POST FACTO CLAUSE9 We review a grant of summary judgment de novo. See Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1117 (11th Cir. 1993). 6 Plaintiffs argue the retroactive change in the Board’s rules and regulations -- applying the bar to Plaintiffs’ parole eligib ility -- violates the Ex Post Facto Clause. We disagree. 9 The Ex Post Facto Clause prohibits St ates from enacting laws that, by their retroactive application, increase the punishment for a crime after it has been committed. See Garner v. Jones , 120 S. Ct. 1362, 1367 (2000). And a retroactive change in the laws about parole of inmates has been held to violate this prohibition when the law created “a su fficient risk of increasing the measure of punishment attached to the covered crimes.” Calif ornia Dep’t of Corrections v. Morales , 115 S. Ct. 1597, 1603 (1995); accord Garner , 120 S. Ct. at 1368 (stating inquiry is whether new rule “creates a significant risk of prolonging respondent’s incarceration”). We will suppose that the Board’s change in positi on on parole creates such a risk: inmates sentenced pursuant to the statute will not be eligible for parole. In another context, we have written that the Board’s rules and regulations constitute laws subject to the Ex Po st Facto Clause. See Akins v. Snow , 922 F.2d 1558, 1561 (11th Cir. 1991). In Akins , however, we reasoned th at the then pertinent rules and regulations of the Board were “l aws” because they were the product of a10 The Georgia Supreme Court has held that the pertinent statute is constitutional. See Moore , 499 S.E.2d at 636. And agencies by interpretation cannot enlarge the scope of or change a properly enacted statute. See North Fulton Med. Ctr. v. Stephenson , 501 S.E.2d 798, 801 (Ga. 1998). 11 Plaintiffs claim that a new interpretation of a statute by an agency can violate the Ex Post Facto Clause if the previous interpretati on was reasonable. See Knuck v. Wainwright , 759 F.2d 856, 858-59 (11th Cir. 1985). Again, Knuck is materially different: it concerned an interpretation of an ambiguous statutory provision made under interpretive authority expressly delegated to the agency, 7 legislative delegation of power and thus ha d the force and effect of law. See id. (noting the Georgia legislature delegated by statute to the Board the authority to enact rules and regulations about parole reconsideration). Th is reasoning does not fit the parole regulation at issue in this case: the 1953 statute expressly took away from the Board the ability to grant paro le to recidivists. The st atute was clear: the Board had no authority to grant parole to recidivist s. The Board’s regulation about granting parole, when such regulation was clearly in conflict with the statute, was legally void: without any authorization in the law. 10 In this case, the state law – the stat ute -- has remained unchanged. The new Board regulation denying paro le opportunities did not change the law. The new regulation was a correction. The new regulation corrected an erroneous interpretation by the Board of a statute which clearly a nd without ambiguity had always precluded the grant of parole to recidivists. A new regulation which just corrects an erroneous interpretation (even if the error was a reasonable one) 11 by an agency of a clear pre-existing statute does notwhich is not the case here. 8 violate the Ex Post Facto Cl ause. The Clause “does not prohibit . . . the correction of a misapplied existing law which disadvant ages one in reliance on its continued misapplication.” Stephens v. Thomas , 19 F.3d 498, 500 (10th Cir. 1994) (concluding no ex post facto violation when department of corrections stopped applying goodtime-credit statute to prisoners with life sentences after st ate attorney general informed department that this application was clear ly prohibited by statute); accord Cortinas v. United States Parole Comm’n , 938 F.2d 43, 46 (5th Cir. 1991) (determining new regulation reflecting proper in terpretation of statute did not violate Clause, and agreeing with Second Circuit that agency’s misinterpretation cannot support an ex post facto claim); Glenn v. Johnson , 761 F.2d 192, 194-95 (4th Cir. 1985) (concluding that parole commission’s change of regula tion to conform with opinion of the state attorney general was no cha nge in the law but merely a correction of an erroneous interpretation of the law: the statute unambiguously precluded the old regulation); Caballery v. United States Parole Comm’n , 673 F.2d 43, 47 (2d Cir. 1982) (holding no ex post facto claim where new regulati on merely corrected a practice by parole commission that was contrary to a preexisting statutory provision). The retroactive application of a new parole regulation to correct a prior erroneous interpretation of a duly-enacted statute cannot support Plaintiffs’ ex post12 Though the court below did not reach this issue, it is a question of law, fully briefed and argued by the parties in the district court and on appeal; so we can addres s it here. See Calloway v. Partners Nat’l Health Plans , 986 F.2d 446, 449 n.1 (11th Cir. 1993). 9 facto claim. Therefore, the district court’s grant of summary judgment, determining that application of the new policy to Plai ntiffs violated the Clause, was error.

DUE PROCESS CLAUSE

Plaintiffs also argue that the Georgia Supreme Court’s decision in Freeman v.
State , 440 S.E.2d 181 (1994) -- limiting the Board’s authority to grant parole -- ultimately resulted in the Board’s eliminat ion of Plaintiffs’ parole eligibility and therefore penalizes individuals through an unforeseeable and retroactive interpretation of state law in violation of the Due Process Clause. We do not think so. 12 Plaintiffs argue that the holding in Freeman was unforeseeable because it contravened prior legal authority, incl uding the Georgia constitutional provision on the power of the Board, prior judicial d ecisions affirming the independent power of the Board, the prior opinions of the Attorn ey General, and the prior Board rules and regulations. Plaintiffs argue this preexis ting authority conclusively established that the Board had independent power and the so le authority to grant parole; power and authority which could not be interfered withby the legislative and judicial branches.13 We assume, without deciding, that the due process limitation applies in this case. But we see that the circuits are not unanimous in th is conclusion. See United States v. Newman , 203 F.3d 700, 702 (9th Cir. 2000) (noting that while some circu its have held that due process concerns are implicated by both after-the-fact increases in punishment and ex post facto construction of substantive criminal statutes, the Ninth Circuit ha s limited the due process application to the latter situation). 10 Therefore, Plaintiffs say that the decision in Freeman was unforeseeable in that it allowed a limitation on the Board’s parole powers. The Supreme Court has said that an “ unforeseeable state-court construction of a criminal statute” applied retroactively can violate the Due Process Clause. Bouie v. City of Columbia , 84 S. Ct. 1697, 1703 (1964); accordUnited States v. McQueen , 86 F.3d 180, 183 (11th Cir. 1996) (“A new judicial doctrine cannot be applied retroactively if it was an ‘unexpected a nd indefensible’ break from the existing case law. . . .”) (citation omitted). 13 The Supreme Court has held judicial decisions to be unforeseeable in two contexts: (1) if a criminal statute is narrow and precise on its face, a judicial expansion of the criminal statute may be considered unforeseeable, see Bouie , 84 S. Ct. at 1701-02, and (2) a cour t significantly departing from its own precedent may be unforeseeable. See Marks v. United States , 97 S. Ct. 990, 993-95 (1977). Plaintiffs rely on Bouie for their proposition that the Georgia Supreme Court’s decision in Freeman and the application of that decision in Moore -- unduly and retroactively expanded the criminal law by declaring laws limiting parole, like the one14 Bouie involved a South Carolina criminal trespass st atute and the racial desegregation of the South. The statute on its face prohibited “entry upon th e lands of another . . . after notice from the owner or tenant prohibiting such entry.” Bouie , 84 S. Ct. at 1700. Protes tors, who were staging a sit-in at a restaurant -- and who, both parties ag reed, had not received notice before entry or before they seated themselves in the restaurant -- were convicted under this statute. See id. The South Carolina Supreme Court upheld the convictions, cons truing the statute to encompass “not only the act of entry . . . after receiving notice not to enter, but also the act of rema ining . . . after receiving notice to leave.” Id. at 1701. The United States Supreme C ourt reversed the c onvictions, stating that, because this reading was an unforeseeable and retroactive expansion of a clear statute (and inconsistent with prior state supreme court readings of the statute), its application to the protestors violated due process. See id. at 1703-04 (“Petitioners did not viol ate the statute as it was written. . . .”). 15 In Moore , the Georgia Supreme Court reasoned this way: “[t]here has been no unforeseeable enlargement of a criminal statute in the enforcem ent of O.C.G.A. § 17-10-7(c): the language of the statue is clear and unmistakable in its command, and as noted above, it has never been found unconstitutional by this court.” Moore , 499 S.E.2d at 637. The Georgia Supreme Court did not think its Freemandecision revolutionary: The State argues that [the statute providi ng for life without parole] is unconstitutional and violative of [the Georgia Constitution] because it imposes legislative restrictions on the power of the Board of Pardons and Pa roles to grant parole and thus violates the separation of powers. This argument, t oo, is without merit. “The power to create crimes and to prescribe punishment therefor is legislative.” Johnson v. State , 169 Ga. 814, 817, 152 S.E.2d 76 (1929). The passa ge by the legislature of a statute providing for a sentence of life without pa role, like the passage of legislation establishing the death penalty, does not im pinge on the authority of the Board but, rather, renders the defendant ineligible for parole in the first instance. Freeman , 440 S.E.2d at184. 11 at issue in this case, to be constitu tional -- violates due process. Bouie concerned a situation in which a court, by interpreta tion, had expanded a cr iminal statute beyond its plain language. 14 84 S. Ct. at 1700-01. But in the present case, the state court decided that a statute was constitutional a nd meant what the express words said; the Georgia Supreme Court did not “interpret” the statute to expand its criminal scope. 15
See Thompson v. Nagle , 118 F.3d 1442, 1449 (11th Cir. 1997) (“When a court16 Plaintiff argues that Freemanis inconsistent with a prior Georgia Supreme Court decision in Charron v. State Bd. of Pardons and Paroles , 319 S.E.2d 453 (1984). That decision, not “disagreeing” with the lower courts that an “independent” Board is envisioned by the Georgia Constitution, determined that two statutes were constitutional because they only required the Board to notify counties before it considered parole but di d not affect the Board’s consideration of parole. Id. at 455. 17 The appellate court decisions, which Plaintiffs cite, concerning the Board’s power, did not construe this statute. And, thus, did not decide the pertinent question. See, e.g., Stephens v. State , 428 S.E.2d 661, 663 (Ga. Ct. App. 1993) (determining that Board has executive power concerning terms and condition of paroles, thus judicial attempt to condition parole on waiver of Fourth Amendment rights was nullity). 18 As we stated, opinions of the Attorney Genera l are, at most, persuasive authority. See Campbell v. Poythress , 456 S.E.2d 110, 111 (Ga. Ct. App. 1995). And the proffered deposition of 12 clarifies but does not alter the meaning of a criminal statute, the Ex Post Facto Clause is not implicated.”); see also Aponte v. Gomez , 993 F.2d 705, 708 (9th Cir. 1993) (“[the state court] construe d the sentencing scheme in accordance with the principles of statutory construction and its conc lusion is certainly not ‘unexpected’ or ‘indefensible.’”); Lustgarden v. Gunter , 966 F.2d 552, 554 (10th Cir. 1992) (concluding interpretation fores eeable because dictated by plain language of statute).

Nor did the Georgia Supreme Court cha nge or expand a law it had previously announced, or break with its own precedent in declaring such laws to be constitutional limits on the Board’s power. 16 That lower state courts had struck down a few other attempts to limit the Board’s power 17 or that the Attorney General had issued an opinion stating that the statute wa s unconstitutional is not decisive. 18 These opinionsthe Board’s Director of Legal Services, in which he opines that the Freeman decision is “difficult to understand or interpret and inconsistent with 40 years of practice and law” in Georgia, is not decisive and does not constrain the Georgia S upreme Court either. Cf. Thompson v. Talmadge , 41 S.E.2d 883, 890 (Ga. 1947) (stating that “determining the meaning of the [state] Constitution, which is binding on everyone, was the exclusive function of the courts”). 19 See also Lerner v. Gill , 751 F.2d 450, 457 (1st Cir. 1985) (no ex post facto violation, notwithstanding contrary attorney general and pa role board interpretation, because they could not deprive the state supreme court of its right to construe a state statute authoritatively and were not exercising powers of their own to legislate such ma tters: “the ex post facto clause does not give a prisoner a vested right to a favorable, but erroneous, interpretation of the law”). 20 Plaintiffs cite us no cases in which the Georgia Supreme Court held a statute to be unconstitutional because it limited the Board’s authority. And a validly imposed limitation on the Board’s granting of parole was not unheard of; in 1993, before the Freeman decision, the Board enacted a regulation refusing parole consideration to persons sentenced to life without parole pursuant to a state statute enacted in 1993, which a llowed courts to sentence to life without parole. The Board did not treat this limitation as void. 13 of others do not deprive a state supreme court of its power to construe a statute finally.

This principle is particularly true unde r Georgia law because the Supreme Court has exclusive appellate jurisdiction to cons ider the constitutionality of a statute. See Ga. Const. art. VI, § VI, ¶ II; Burson v. State , 359 S.E.2d 731, 732 (Ga. Ct. App. 1987) (court of appeals has no authority to determine constitutionality of state statute). 19 And these opinions from other entitie s do not make the Georgia Supreme Court’s decision unforeseeable; the Georgia Supreme Court had not previously ruled on the constitutionality of this or similar statutes defining the limits of the Board’s
power. 20 See McQueen , 86 F.3d at 184 (noting that lower courts had rendered decisions later determined to be err oneous by a higher court does not violate due21 Just because the Georgia Supreme Court had not provided a decision on the precise issue earlier (the State did not pursue a ruling on the issue in the courts and a prisoner would not have challenged a favorable parole rule) does not ma ke the decision unforeseeable; the legal arguments were available. See Green v. State , 262 S.E.2d 68, 69 (Ga. 1979) (noti ng that merits of argument that this statute is unconstitutional limit on the Bo ard’s power had never been decided). Nor does the amount of time that the Board’s erroneous interpretation was in place change our conclusion. See Lerner , 751 F.2d at 459 (“It is a fact of life, . . . that new laws are often not challenged and finally interpreted until a number of years go by.”). 14 process); see also Hamm v. Latessa , 72 F.3d 947, 955 (1st Cir. 1995) (“[I]t would be unprincipled to declare by federal fiat th at the Due Process Clause broadly nullifies the Commonwealth’s power to construe and apply its laws correctly.”). 21 The Georgia Supreme Court upheld a statute which had been erroneously interpreted by the Attorney General; this judicial act does not constitute an ex post facto violation of the Due Process Clause. See Crowley v. Landon , 780 F.2d 440, 444 (4th Cir. 1985). The Freeman decision neither expands the statute in question beyond its express terms nor contradicts preex isting Georgia Supreme Court precedent on the scope of the Board’s authority. We conclude that the retroactive application of the Georgia Supreme Court’s decision does not violate Due Process. To conclude otherwise would, in effect, require us to assume that a state statute was unconstitutional because of a prior construction by state governmental bodies without the authority to declare law in this area. That the erroneous interp retations were later declared invalid and corrected by the state supreme court does not entitle Plaintiffs to the benefit of those mistaken interpretations.15 CONCLUSION

In this case, the statute and the puni shment it imposes have been unchanged since enactment in 1953; the application of the statute to Plaintiffs does not violate Due Process or the Ex Post Facto Clause. The district court improperly granted summary judgment for the Plaintiffs. The judgment of the district court is VACATED and the case is REMANDED for further determ inations consistent with this opinion.