### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A pril 27, 20 00
JEFF UTLEY v. TENNESSEE DEPARTMENT OF CORRECTI ON, ET AL 

### .

Appeal from the Chancery Court for Davidson County No. 98-2578-II Carol L. McCoy, Chancellor

No. M1999-01412-COA-R3-CV - Filed May 1, 2003

This appeal involves a dispute between a prisoner and the Department of Correction reg arding his punishmentfor

two unrelated disciplinary offenses. On both occasions, the Department extended the prisoner ’s release eligibility date in accordance with versions of Tenn. Dep’t Corr. Policy I ndex No. 502.02 issued after he committed thecrimes for which he was incarcera ted. The prisoner filed
a complaint in the Chancery Courtfor Davidson County asser ting that the Department’s application of the later version of the policy to him violated the E x Post Facto Clause of the United States Constitution. The trial court grant e d the Department’s Tenn. R. Civ. P. 12.02(6) motion, and the prisoner has appealed. We have determined that the prisoner’s c omplaintfails to st ate a co lorable
ex post facto claim under either the f ederal or state c onstitution. Accordingly , we affirm the dismissal of the prisoner’s complaint. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W ILLI AM C. K OCH , J R ., J., delivere d the opinion of the court, in which W ILLI AM B. C AIN and P ATRIC IA J. C OTT RELL , JJ., joined. Jeff Utley, Henning , Tennessee, Pro Se.

Paul G. Summers, Attorney Gene ral and Repor

ter; and Abigail Turner , Assistan

t Attorne y General , for the a ppellee s, Tenne ssee De

partmen t of Correction and

Donal Cam

pbell.
OPINION

I.

In 1986, Jeffery A. Utley was involved in an armed ro bb er y t hat resulted in a death. On March 23, 1987, he was sentenced by the Criminal Court for Davidson County to two concurr ent twenty-y ear sentences for second deg ree murder and armed robber y.
When Mr. Utley comm itted his crimes in 1986, persons convicted as Range I offenders became eligible to be considered for parole a fter serving thirty

percent of the actual sentence1 The 1982 version of Tenn. Co de Ann. § 40-35- 501 was part of the Tenness ee Sentenci ng Ref orm Actof 1982. Act of Apr. 8, 1982, ch. 868, 1982 Tenn. Pub. Act s 556. It was rewritten in 1989 when t he Tennessee Ge neral A ssemb ly recodi fi ed Tennes see’ s cr imi nal laws . Act of May 24, 1989, ch . 591, 1989 Tenn. Pu b. Act s 1169.

2 Bo th second degree murder and armed robbe ry were Class X crimes in 1986. Prior to July 1, 1982, the paro le eligibility for persons convicted of a Class X cri me wa s gove rned by Tenn. Code Ann. § 40-28- 301(h)( 1) (1982) (repeal ed 1985). T his st atute was vi rtuall y identicalto Tenn. Code Ann. § 40-35-501(h). However, as part o f its efforts to relieve pris on overcrowding, the Tennessee General Assemb ly determined that beginning on July 1, 1982, the release clas sif icat ion eligibility date for Class X offenders would be determined under Tenn. Code Ann. § 40-35-501(h). Act of Apr. 8, 1982, ch ap. 868 § 1, Sect ion 40- 43-601, 1982 Tenn. Pub . Acts 5 56, 5 85. T he T enne ssee G enera l Assem bly
even tually repealed Tenn. Code Ann. § 40-28-301 in 1985 when it recodif ied Tennessee ’s criminal laws. Act of Dec. 5, 1985, ch. 5, § 7, 1985 Tenn. Pu b. Act s (1s t Ext raordi nary Sess .) 22, 23.

3 The Com missioner issued a re vised versi on of Poli cy No. 502. 02 on Au gus t 7, 1986 co nt ain in g t he s ame provision. Tenn. Dep’t Corr. Policy Index No. 502.02 (V) (1986 ).
-2- imposed by the court. Te nn. Code Ann. § 40-35-501(c) (198 2) (repealed 1 989). 1 However, the eligibil ity date established by Te

nn. Code Ann. § 40-35-501(c) was contingent on a prison er’s disciplinary rec ord while incarcerated. Tenn. Code Ann. § 40-35-501(h) stated that “[t]he releas e eligibi lity date pro vided in th

is section shall be th

e earlie st date a

defenda nt convicted of a f

elo n y shallbe eligible for release status; such date sha ll be conditionedon the defendant’s good behavior while in prison.” Tenn. Code Ann. § 40-35-501(h) also provided that

For a violation of any of the

rules of the department of

correction or the institution in which the defendant is incarcerated or while on any releas e program

other than parole, the commissioner of correction or his designee may

defer therelease eligibility date so as to increase the total amount of

time a defendant must serve before bec oming eligible for release status. This release may , i n t he discretion of the commissioner, b e in any amount of

time not to e

xceed the full sentenceo ri ginally imposed by the court and shall be imposed pursua nt to regulations promulgated by the commissioner of
correcti on and which give notice of the length of discr etionary increases that may

be imposed for a violation of each of the rules of the department or institution. 2

The policies r

egard ing the p enalti es for prison disciplinary offe nses that were in effect in January 1986 when Mr. Utley c ommitted his crimes hadbeen issued by the Commissioner of Correction on January 1, 1982. They

provided that “[t]he

most seve

re punish ments which can be imposed for the commission of a disciplinary of fense are the loss of sentence cr edits and the imposition of punitive segregation.” 3 Tenn. Dep’t Corr. Policy I ndex No. 502.02(V) (1982).

Mr. Utley esca

ped from the Dep art ment’s custody on October 22, 1989. He was soon recaptured

and was criminally pr

osecuted and

convicted for escape. On May 24, 1990, he received another on e- ye ar sentence to be served consecutively to his 1987 sentences. In addition, the Department

charged him with the disciplinary infractionof escape. Pursuant to a revised version of4 The Commiss ioner is sued arevi sed ve rsi on of Polic y No. 502. 02 on Febru ary 15, 1989. The 1989 revi sion of Pol icy No. 502.02( V)(E) prov ided:

In all cases i n which an inm ate is foun d guilty of t he di sci pli nary off

ense of es cape, inc ludi ng es cape from custo dy and fa ilure t o return from a pass or furl ough, in addition t o any other punishment impose d, the offender’s parole or release eligibility date shallbe extended by adding the r eto an additi onal twenty percent (20 %) o f the offender’s origi nal maximum sentence, or by extending the inmate ’s paro le or re lease e ligibility date to the se ntence expira tion da te, which ever is le ss. . ..
5 U.S. Cons t. art . I, § 10, cl . 1.

6 Utley v. R ose , 55 S.W .3d 559, 560 (Tenn. Ct. App. 2001 ).

7 The Commissioner

iss ued a revi sed versi on of Polic y No. 502.02 on November 15, 1996. The 1996 rev isi on of Pol icy No. 502.02( VI)(E) pr ovided:

Based on the seriousn ess of the i ncident, cases i n which an inmate is found guiltyof a discipli nary offense that resulte d in ph ysical injur y to an e mplo yee, vo lunteer or visit or that require s medical treatm ent, in add ition to any oth er pu nishme nt imp osed , the offen der’s p arole or rele ase eligib ility date may be extended by adding t hereto an additi onal up to th irty percent (30%) of the of

fender’ s orig inal maximum sente n ce , or by e xtendi ng the i nmate’ s parole or releas e eli gibil ity date t o the sen tence exp iration d ate, whic heve r is less . . ..
-3- Policy No. 502.02 that had been issued on February

15, 1989, the Department extended h

is parole eligibil ity date fro m thirty

to fifty percen t of his ef fective sentenc e for his1987 conv ictions. 4

Mr. Utley objected

to the Department’s decision to base his punishment on the 1989 version of Policy No. 502.02 because he believed it provided for a harsher punishment than thepolicy that hadbeen in effect when he committed his crimes. Acc ordingly, he filed a dec laratory judg

ment action in the United States District Court for the Middle District of Tennessee asserting that the Department’s application of the policy to him violated the Ex Post Facto Clause of the U nited States Constitution. 5 In April 1996, a United States Magistrate Judge filed a repor t and recommendation concluding that the application of the 1989 version of Policy No. 502.0 2 to Mr. Utley

violated U.S. Const. art. I , § 10, cl. 1 and rec ommending that Mr. U

tley “be awa rded inju nctive r elief to r einstate his eligibil

ity date as pr

ovided in h

is original sentence.” Utley v. Rees , No. 3:92-979, slip op. at 10 (M. D. Tenn. Apr. 29, 1996). For reasonsnot readily asc ertained, the United States District Court rejected th e mag istrate j udge’ s report and gr anted the Commissione

r of Corr ection’ s motion to dismiss.

In March 1997, while Utley v. Rees was pending on appeal, Mr. Utley and another prisoner got into a scuffle with four correction officers thatre su lt ed in ph ysi ca l i nj ur y. As a result, he was charged with the disciplinary offe nse of assault. Mr. Utley was plac ed in involuntary administrative segregation

and was later transferred to B rushy Mountain State Prison. 6 On April 22, 1997, t he Departm ent, now relying

on the 1996 version of Policy 502.02, e xtended Mr. Utley ’s parol e eligibil ity date from fifty perc ent to eighty pe

rcent of the ef fective sentenc e for his1987 convictions. 7

In September 199 7, the Uni ted States Court of Appeals for the Sixth Circuit affirmed the dismissal of Mr. Utley’scomplaint in Utley v. Rees , but on different grounds than those relied on by the District C ourt. The

United Sta

tes Court o f Appeals held that Mr. Utley should have filed a8 Tenn. R. Civ. P. 7. 02(1) r equires mot ions to "s tat e wit h part icul ari ty the groun ds t heref or." Durin g th is peri od of time, the O ffice of the A ttorney G enera l regular ly fi l ed Te nn. R. C iv. P. 1 2.02 (6) m otion s that did not state their groun ds with t

he particulari ty required by Tenn. R. Civ. P. 7. 02(1). Rath er, it woul d inc lude thes e grou nds in a sep arate memorand um of l aw accompa nyi ng the mot ion. Includin g th e grou nds f or a motion in a separate memorandum of law does not satisfy the spec ificity require men ts in Tenn . R. Civ. P. 7.02 (1) bec ause these memoranda , by operation of Tenn. R. App. P. 24, do not be come part of t he appel lat e recor d. See, e.g., H ickma n v. Ten nessee B d. of Pa roles, 78 S.W.3d 285, 287 n.2 (T enn. C t. App . 200 1); Pen dleton v. M ills, 73 S.W.3d 115, 119 n.7 (Ten n. Ct . App . 200 1); Robinson v. Clem ent, 65 S.W .3d 632, 635 n.2 (Tenn. Ct. App. 2001 ).

9 The ord er did not ad dress M r. Utley’s c halleng e to the puni shment h e recei ved for t he assau lt i nfract

ion, ev en though th e t ri al court h ad permit ted Mr. Ut leyto a mend h is comp laint to inc lude this i nfract ion as we ll a s the earli er escape inf

ra cti on. The t

ria l cou rt n ever corre cted thi s over sig ht. Accordi ngl y, the tri al c ourt ’s July27, 1999 memorand um and o rder is not a fina l, app ealab le ord er be cause it does not re solve al l th e clai ms between all the parties. Rather than remanding thi s case to the t rialcourt f

or the en try of a f

inal order, we have determ ined that the prop er course is to waiv e the finality requ ireme nt in acc ord ance with T enn. R . App . P. 2 a nd to add ress the c laims with regar d to Mr. Utley’s escap e infractio n. Ou r reaso ning with r egard to the es cap e infractio n app lies equ ally to his later assault infractio n. -4- petition for writ of habeas corpus and, therefore, that his complaint should be dismissed because he hadfailed to demonstrate that he had exhausted his remedies in state court. Utley v. Rees , 124 F.3d 201, 1997 WL 584248 (Table, 6th Cir. 1997).

In August 1998, Mr. Utley filed this suit in the Chancery Court for Davidson County alleg ing that the application of the 1989 ver sio n of Policy No. 502.0 2 to him viola ted the Ex Pos t Facto Clause of the Un ited State s Constitution. His initial complaintdealt with his 1990 escape offense; however, in April 1999, the trial court permitted him to file an amended complaint that included a chall enge to the extension of his release eligibility da te stemming from the 1997 assault off ense pursuant to the 1996 v ersion of

Policy No. 502.0 2. The De

partmen t respond ed with itscu st om ar y, non- s pecific

Tenn. R. Civ. P. 12.02(6) motion. 8 On July 27, 1999, the trial court gra nted the Department’s motion and dismissed Mr. Utley’ s complaint after concluding that “since policy no. 502.02 was in effect prior to Plaintiff’s escape in 1990, there was no ex post fa cto violation.” 9 Mr. Utley has appe aled that decision.

II.

A motion to dismiss a

complain t for failure tostate a claim for which relief can be g ranted tests the legalsufficiency

of the plaintiff’s pleading. Givens v. Mullikin , 75 S.W.3d 383, 406 (Tenn. 2 002); Trau-Med of Am., Inc. v. Allstate Ins. Co. , 71 S.W.3d 69 1, 696 (Te nn. 2002) . The mo tio n requires the court to review the complaint alone, Mitchell v. Campbell , 88 S.W.3d 561, 564 (Tenn. Ct. App. 2002), and to look to the complaint's substance rather than its form. Kaylor v. Bradley , 912 S.W.2d 728 , 7 31 (Tenn. Ct. App. 1995). Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the alleged factswill not entitle the plaintiff to relief, Crewsv. Buckman Labs. Int’l, Inc. , 78 S.W.3d 852, 857 (Tenn. 2002) or when the complain t is to ta ll y la ck in g i n c la ri ty a nd sp ec if ic it y. Dobbs v. Guenther , 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992).

A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual allegations in the complaint but asserts that no cause of action a rises fr om these f

acts. Davis v. The Tennessean , 83 S.W.3d 125, 127 (Tenn. Ct. App. 2001); P endleton v. Mills , 73 S.W.3d at 120. Ac co rd in gl y, courts reviewing a complaint being tested by

a Tenn. R. Civ. P. 12.02(6) motion must-5-

construe the compl aint liber ally in favor of the pla

intiff by taking a ll factua l alle gation s in the complaint as true, Stein v. Davidson Hotel Co. , 945 S.W.2d 714, 716 (Tenn. 1997), and by g iving the plaint iff the bene fit of all the infe rencesthat can

be reas onably

drawn f rom the ple aded fa

cts. R OBERT B ANKS , J R

. & J UNE F. E NTMAN , T ENNESSEE C IVIL P ROCEDURE § 5-6 (g) , at 2 54 (1 999) . We must likewise review t

h e trial court's legal conclusions regarding the adequacy of the complaint withouta presum

ption of c orrect

ness. Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A. , 986 S.W.2d 550, 554 (Tenn. 1 999); Stein v. Davidson Hotel Co., 945 S.W.2d at 716.

III.

We begin our discussion with a review of two basic and potentially competing principles that frame our analysis of Mr. U

tley’s constitutional claim. The first principle i s that maintaining institutional order and discipline in prison is an essential, com pelli ng governmental interest. Bell
v. Wolfi sh , 441 U.S. 5 20, 546, 99S. Ct. 1861, 1 878 (1979 ); Kikumura v. Hurley , 242 F.3d 950, 962 (10th Cir. 2001); Harris v. Chapman , 97 F.3d 499, 504 (11th Cir. 1996). The administration of a prison is an extra

ordinar ily d ifficult undertaking, Wolff

v. McDonnell , 418 U.S. 539, 566, 94 S. Ct. 2963, 2980 (1974), and the day -to-day ope ration of a p e nal fac ility is not susc eptible to

easy solutions. Bell v. W

olfish , 441 U.S. at 547, 99 S. Ct. at 1878.

The operati on of pris ons has been entru sted to the Executive

and L egisla tive Br anches of govern ment and is within the province and professional expertise of correction off icials. Pell v. Procunier , 417 U.S. 817, 827, 94 S. Ct. 2800 , 2806 (19 74); Procunier v. Martinez , 416 U.S. 396, 405, 94 S. Ct. 1800 , 1807 (19 74); Utley v. Rose , 55 S.W.3d at 563. The courts accord wide-ranging deference to correction officials in adopting an d administe ring pol icies tha t, in the of

ficials’ judgmen t, are needed

to preserve internal order an d d is ci pl in e a nd to ma in ta in in st it ut io na l s ec ur it y, Jones v. North Carolina Prisoners’ La bor Union, Inc. , 433 U.S. 119, 126, 97 S. Ct. 2532, 2538 (1977); Bell v. W

olfish , 441 U.S. at

548, 99 S. Ct. at 1879; Jaami v. Conley , 958 S.W.2d 123, 125 (Tenn. Ct. A pp. 1997) (recognizing prison officials’ broa d authority reg arding prisoner classification). Accordingly , the courts consistently dec line to substitute their judgment for that of prison officials when it comes to difficul t a nd sensitive matters of prison administration. O’Lone v. Estate of Shabazz , 482 U.S. 342, 353, 107 S. Ct. 2400, 2407 (1987). Preserving institution al order and disci pline may require prison of ficialsto adopt r

ules or policies that limit or reduce the constitutional rights retained by prisoners. Bell

v. W olfish , 441 U.S. at 546, 99 S. Ct. at 1878; Wilson v. Blank enship , 163 F.3d

1284, 1295 (11th Cir. 1998); McLaurin
v. Morton , 48 F.3d 944, 948 (6th Cir. 1995). Prison officials must have the authority to discipline prisoners for violating these rules and policies. Garrity v. Fiedler , 41 F. 3d 1150, 1153 (7th Cir. 1994); Turner v. Johnson , 46 F. Supp. 2d 655, 663-64 (S.D. Tex. 1999). Accordingly , disciplinary procee dings involving infraction s of prison r ules and policies are within the expected scope of a prisoner’s sentence. Sandin v. Conner , 515 U.S. 472, 485, 115 S. Ct. 2293, 2301 (1995).

The second principle is that prisoners do not shed all th

eir cons titutional

rightsat the prison gates. Wolff

v. McDonnell , 418 U.S. a t 555, 94 S. Ct

. at2974. Whil e lawfu l inca rcerat ion b rings about a neces sary

withdraw al of man

y pr ivile ges an d rights, Jones v. North Carolina Prisoner s’ Labor Union, Inc. , 433 U.S. at 125, 97 S. Ct. at 2537; Price v. Johnston , 334 U.S. 2 66, 285, 68S. Ct. 1049, 1060 (1948), prisoners retain a narrow ra n ge of c onstitutionally protected liberty and10 Elmer E. Sm ead , The Rule Against Ret roacti ve Legisl ation: A Basic Principl e of Juri sprudence , 20 Minn. L. Rev. 775, 775-76 (1936).

11 T HE F EDERALI ST No. 44, at 228 (J. Madison) (Max Beloff ed. 1987) (charact erizi ng ex post fact o laws as “contrary to the first p rinciple s of the so cial co mpa ct and to eve ry princ iple o f sound legislation ”); Suz anna Sher ry, The Founders’ Unwrit ten Cons ti tut ion , 54 U. Chi. L. Rev. 1127, 115 7 (1987 ).

12 1 W I LL I AM B LA CKS TONE , C OMM ENTARIES *46.

13 U.S. Cons t. art

I, § 9, cl . 3.

14 U.S. Cons t. art . I, § 10, cl . 1.
-6- propert y in terests. Hudson v. Palmer , 468 U.S. 517, 530, 104 S. Ct. 3194, 3202 (1984); Hewitt v. Helms , 459 U.S. 460, 467, 103 S. Ct. 864, 869 (1983). Thus, when a prison rule or policy offends
a fundamental constitutional guara ntee, the courts mu st

discharge their duty

to protect a prisoner’s basicconstitutional rights. Turner v. Safley , 482 U.S. 78, 84, 107 S. Ct. 2254, 2259 (1987); Utley
v. Rose , 55 S. W.3d at 56 3 (recognizing that courts may intervene when violations of a prisoner’s constitutional rights h ave bee n committe d “under

the cloa k of disci

plinary or adminis trati ve ” proceedings).

Thereis no dispute that the Ex Post Facto Clauses of the fede ral and s tate con stitutions a pply to prisoners in Tennessee’s penal institution s. The rig

ht not to be

subjected to ex post f

acto law s is notone of the constitutional rights that prisoners lose when they are imprisoned for crime. However, neither the federal nor the state ExPost Facto Cl ause shou

ld be inte rprete d to requi

re or ev en permit the courts to micromanage the endless arra y of l egisla

tive or a dministra tive adju stments to p arole policies and procedures. California Dep’t of Corr. v. Morales , 514 U.S. 499, 508, 115 S. Ct. 1597, 1603 (1995). T

he court s must

provide prison officials with due flexibility to fashion parole policies andprocedures that address the problems associated both with confinement and with release. Garner v. Jones , 529 U.S. 244, 252, 120 S. Ct. 1362, 1368 (2000).

IV.

The repudiation of ex post facto laws, which traces its lineage to the Corpu s Juris Civil is compiledduring the reign of the Emperor Justinian, became

incorpor ated into the Eng lishcommon law in the th ir te en th ce nt ur y. 10 By the e ighteenth century , the prohibition against ex post facto laws hadtaken on a natural lawqu al it y. 11 In the mid-eig hteenth century, B lackstone characterized them as “cruel and unjust.” 12

The Framers included two ex post facto clauses in the United States Constitut ion, o ne directed at the f ede ral government , 13 and the ot her directed at th

e states. 14 They took this unusual step not only in response to the Br itish Parliament’s practice of passing expost facto laws, Carmell
v. Texas , 529 U.S. 51 3, 524 n.13 , 120 S. Ct. 16 20, 1628 n. 13 (2000) ; Calder v. Bull , 3 U.S. (3 Dall.) 386, 389 (1798) (referring to a number of well-known instances where Parliament enacted

ex post factolaws), but also in response to the abuses of legislative power by many state legislatures during the period of “democratic despotism” following the Revolution. G ORDON S. W OOD , T HE C REATI ON OF THE A MERI CAN R EPUBLIC 1176-1787, at 403-07 (1969); Robert W . Scheef, “Public Citizens” and the Constitution: Bridging the Gap Between Popular Sovereignty and Original Intent , 69 Fordham15 T HE F EDERALI ST No. 84, at 437-38 (A. Hamilton) (Max B eloff ed. 1987).

16 The Te nnesse e Sup reme Co urt has a dop ted Ju stice C hase’s descri ption of laws t hat run afoul of the Ex Post Fac to Cla use. Davis v. Beel er , 185 Te nn. 63 8, 65 3, 20 7 S.W .2d 3 43, 3 49 ( 194 7).

17 Tenn. Const . of

1796, art. XI, § 11 pr ovided: “That laws made for the punishment of acts committ ed previous to the exi ste nce of

such laws and by the m only decl ared cr imi nal are con trary to the p rinciple s of free g ove rnme nt;
w herefore no ex post

fact o law s hall

be made. ” 6 F RANCIS N. T HORPE , T HE F EDE RAL AND S TATE C ONSTITU T I ONS , C OLO NIAL C HARTERS , AND O THER O RGANI C L AWS OF THE S TATES , T ERRIT ORIES , AND C OLONIES 342 2 (1 909 ).
-7- L. Rev. 2201, 2214-17 (2001). Alexander Hamilton describe d these cl auses as “perhaps grea ter securities to liberty and r

epublicanism than any . . . [the United States Constitution] contains.” 15
By the late e ightee nth centu ry , the phra se “ex post

factolaw” had become a term of art with
an established meaning. Collins v. Youngblood , 497 U.S. 37, 41, 110 S. Ct . 27 15, 271 9 (1 990 ). In the United States Supreme Court’s first case involvingthe Ex Post Facto Clause, Justice Samuel Chase provided the following description of four categories of laws th at violate the Ex Post F acto Clause:
First, every law that makes an a

ction done

before the passin g of the law, and which was innocent when done, criminal; and punishes such action. Second, every

law that aggravates a c

rime, or makes it greater than it was, when committed. Third, eve ry l aw that changes the punishmen

t, and inflicts a gre ater pun ishment, than the law annexed to the crime, when committed. Fourth, every la w that alters the legal rules of evidence, [to permit] less, or different, testimony , than the law required at the time of the commission of the offense , in order

to convict the offender.
Calder v. Bull , 3 U.S. at 390-91. 16 These laws have one thing in com mon. In each instance, the government

refuses, after the fact, to play by its own r

ules and a lters those rules to its own advantage. Carmel v. Texas , 529 U.S. at 533, 120 S. Ct. at1633. Thus, the Ex Post Facto Clauses
are designed to maintain the status quo between the gover nment and a prisoner from the time of the prisoner’s original offense, Watk ins v. Cross , 566 N.W.2d 431, 436 (S .D. 1997) (Sabers, J., dissenting), and to prevent the enactment of arbitrary and vindictive laws. Weaver v. Graham , 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981).

Tennessee ’s origina

l constitut ion conta ined a pr ohibition a

gainst e x post facto

laws. 17 Excep t for minor changes in punctuation, every subsequent version of our const it ution has contained the
sameprohibition. Thus, Te nn. Const. a

rt. I , § 11 cur

rently provides : “That la

ws ma de for

the punishmentof acts committed previous to the existence of such laws, and by them only declared criminal , are con

trary to the principles of free Government; where as no Ex post facto law shall be made.” Despite the substantial similarities between Tenn. Const. art. I, § 11 a nd the Ex Post F acto Clauses in the United States Constitution, the Tennessee Supreme Court has concluded that the Ex Post Facto Cl ause

in the Constitution of Tennessee has a bro ader re ach that its feder al counte rparts.18 The Ex Post Facto Clauses do n ot ap ply just to the Le gislative B ranch . The y also ap ply to rules, regulations,

or polic ies ena cted b y the Ex ecutive Bra nch ex ercising deleg ated le gislative p owe r, Sm ith v. Sc ott , 223 F. 3d 1191, 1193- 94 (10 th Cir. 2 000 ); Prater v. United States Pa role Com m’n , 802 F.2d 94 8, 953-54 (7th Cir. 1986), as long as they have the force and e ffect of law

. Griggs v. Maryl and , 263 F.3d 35 5, 359 (4th Cir. 2001); Miller v. Mitc hell , 25 S. W.3d 658, 663 (Mo. Ct. App . 2000). Thus, administrati ve rul es and polic ie s may be sub ject to the Ex P ost Facto C lauses’ prohib itions. Garner v. Jones , 529 U.S. at 255, 120 S. Ct. a t 1370. Poli cy change s that simply clari fy how an Executive Branch agenc y exerc ises pre -existing d iscretio nary au thority d o no t run afo ul of the E x Po st Facto Claus es. D’Joy v. New York State Di v. of P aro le , 127 F. Sup p. 2d 433 , 439 (S.D .N.Y . 200 1); Jaami v. Conley , 958 S. W.2d at 125- 26 (declining t o set aside discret ionary prisoner clas sifi cation policies)

.

-8- Miller v. State , 584 S .W.2d 7 58, 761 (Tenn. 1979) (invalidating the retroactive a pplication of a statute on ex post

facto ground s even though the United States Supreme Court had upheld the retroactiveapplica

tion of a virtually

identica l statute) . While a sta

te constit uti on al provision may provide greater protection than its feder al counterpart, Van Tran v. State , 66 S.W.3d 790, 801 (Tenn. 2001); Leech v. American Booksellers Ass’n, Inc. , 582 S.W.2d 738, 745 (Tenn. 1979), Tennessee’s courts are bound by the United States Supreme Court’s interpretation of t he United States Constitution. St ate v. Car ruthers , 35 S.W.3d 51 6, 561 (Te nn. 2000) ; McNabb v. Tennessean Newspapers, Inc. , 55 Tenn. App. 380, 391, 400 S.W.2d 871, 876 (1965).

We must constr

ue U.S. Con st. art. I , § 10, cl. 1 consistently with the opinions of the United States Supreme

Court. The United States Constitution supplies the minimum level of constitutional protections for personal rights and freedoms. PruneYard Shopping Ctr. v. Robins , 447 U.S. 74, 81, 100 S. Ct. 2035, 2040 (1980 ); Oregon v. Hass , 420 U.S. 7 14, 719, 95 S. Ct. 1215, 1219(1975); State
v. Randolph , 74 S.W.3d 330, 334 (Ten n. 2002); City of White House v. W hitley , 979 S.W.2d 262, 268 (Tenn. 1998). Accordingly , we must strike down a statute, r ule or pol icy that runsafoul of

U.S. Const. a rt. I, § 10, cl. 1 even if it is not contrary to Tenn. Const. art. I, § 11 as co nstrued b y th e Tenness ee Supre

me Court.

Law s, rules, or policies 18 that violate the Ex Post Facto Clauses of the federaland Tennessee constitutions have two characteristics. First, they must be truly retroactive – that is, th ey must apply to events occurring before the ir enactment

. Lynce v. Mathis , 519 U.S. 4 33, 441, 11 7 S. Ct. 891, 896 (1997); State v. Ricci , 914 S.W.2d 475, 4 80 (Tenn . 1996); Kaylor v. Bradley , 912 S.W.2d 728, 732 (Tenn. Ct. App. 1995). A statute , rule, or policy is retroactive in the ex post facto sense if it changes the legal consequences of acts completed before its effective da te. Weaver v. Graham , 450 U.S. at 31, 101 S. Ct. at 965. Secon d, the y must disadvantag e the affected person either by altering the definition of criminal conduct or by increasing the punishment for the criminal conduct. Lynce v. Mathis , 519 U.S. at 441, 11 7 S. Ct. at 89 6; California Dep’t of Corr. v. Morales , 514 U.S. at 506 n.3, 115 S. Ct. at 160 2 n.3; State v. Pearson , 858 S.W .2d 879, 882 (Tenn. 1993). The heart of the Ex Post Facto Cl auses ba

rs the ap plication of laws, r

ules, or p olicies that change the punishment and inflictgreater punishment than the law ann exed to the crime when it was committed. Johnson v. United States , 529 U.S. 694, 699, 120 S. Ct. 1795, 1800 (2000).

A great bulk of ex post f

acto jurisprudence has involved claims that a new statute, rule, or policy has inflicted greater punishment than the law anne xed to the c

rime whe n it was committed. Lynce v. Mathis , 519 U.S. at 441, 117 S. Ct. at 895. Determining whether a particular statute, rule,
or policy increa ses criminal punish ment is often a close question. Lynce v. Mathis , 519 U.S. at 450, 117 S. Ct. at 900 (Thomas, J., concurring); 2 R ONALD D. R OTUNDA & J OHN E. N OWAK , T REAT ISE19 Gre enh oltz v. Inmates of Nebraska Penal & Corr . Complex , 442 U.S. 1, 7, 99 S . Ct. 21 00, 2 104 (19 79); Olive r v. Sta te , 169 Tenn. 32 0 322, 87 S.W.2d 566, 566 (1935).
-9- ON C ONST ITUTION AL LAW § 15.9(b), at 677 (3d ed. 19 99) (“N OWAK & R OTUNDA ”). There is no single formula for

identifying

which statute, rule, or policy will survive an ex post facto challenge. Garner v. Jones , 529 U.S. a

t 252, 120 S. Ct. at1368; Kaylor v. Bradley , 912 S.W.2d at 732. The analy sis requires an assessment of objective factors . Lynce v. Mathis , 519 U.S. at 442-44, 117 S. Ct. at 896-97; 2 N OWAK & R OTUNDA , § 15.9(b), at 677-78.

The danger that vindictiveness will cause disfavor of c ertain persons after-the-fact is present in the parole context. Garner v. Jones , 529 U.S. at 253, 120 S. Ct. at 1369. Par o le elig ibility is a facet of a criminal sentence, Ward en v. Mar rero , 4 17 U.S. 6 53, 661-64, 94 S. Ct. 2532, 2537-39 (1974); In re Jackson , 703 P.2d 100, 108 (Ca l. 1985), and thus the statutes and regulations governing parole eligibil ity a re consi dered to

be part o f th e law annexed to a crime when it is committed. Weaver v. Graha m , 450 U.S. at 32-33, 10 1 S. Ct. at 96 6; Jaami v. Conley , 958 S.W.2d at 125; Kaylor v. Bradley , 912 S. W.3d a t 732. Accordingly , a change in a statute, rule, or policy that governs the parole or early release of prisoners may , in some inst ances, v iolate the Ex Post Facto Clauses, Garner

v. Jones , 529 U.S. at 250, 120 S. Ct. at1367; Lynce v. Mathis , 519 U.S. at 445, 117 S. Ct. at 898; Weaver

v. Graham , 450 U.S. a

t 32, 101 S. Ct . at 966, but only insofar as it retr oactively increases the extent of the punishment that could have been imposed on the day the prisone r committed the underlying crime. 2 N OWAK & R OTUNDA , § 15.9(b), at 678 n.67.

The bulk of the

ex post facto analysis focuse s on the effect of the newstatute, rule, or policy
on the prisoner’s sentence. Lynce v. Mathis , 519 U.S. at 444, 117 S. Ct. at 897. A new statute, rule,
or policy will be deemed to increase punishment if it eff ectively postponesa prisone

r’s initia l releas e eligibility date. Garner v. Jones , 529 U.S. at 250, 120 S. Ct. at1367; California Dep’t of Corr. v. Morales , 514 U.S. at

507, 115 S. C t. at 1602. To preva il with an e

x post facto

claim, a p risoner must show more than a speculative or attenuated possibility that

the new s tatute, r

ule, or po licy

may result in more time in prison. California Dep’t of Corr. v. Morales , 514 U.S. at 509, 115 S. Ct. at 1603; Wilsonv. State , 980 S.W.2d 1 96, 199-2 00 (Tenn . Ct. App. 1998). Ra ther, a p risoner must show th at, as applied to his or her own sentence, the retroactive application of the new statute, rule, or policy either will result in a longer period of incarcer ation or creates a significant risk of incr easingth e periodof his or her

incarceration. Garner v. Jones , 529 U.S. a t 251, 255, 120 S. Ct. at 1368, 1370, California

Dep’t of Corr. v. Morales , 514 U.S. a t 509, 115 S. Ct. at 1603 ; Weaver v. Graham , 450 U.S. at 33, 101 S. Ct. at 967. The fact that a prisoner does not have a ve sted right to be paroled 19 is not relevant in an ex post facto analy sis. Allison v. Kyle , 66 F.3d 71, 74 (5th Cir. 1 995); In re Jackson , 703 P.2d at 108; Johnson v. Commissioner of Co rr. , 786 A.2d 1091, 1099 (Conn. 2002). The a nalysis focuses on whether a statute, r ule, or po licy

retroa ctively increases the punishment beyond what was prescribed when the underlying

crime was committed. Miller v. Florida , 482 U.S. 423, 430, 107 S. Ct. 2446, 2451 (1987); Weaver v. Graham , 450 U.S. a t 30, 101 S. Ct. at 965. Pers ons have a right to fair warning of the penalties that may result from

their actions. Wheeler v. Tennesse e Dep’t of C orr. , 36 S.W.3d 824, 828 (Tenn. Ct. App. 2000); Smith v. Campbell , 995 S.W.2d 116, 119 (Tenn. Ct. App. 1999). Accordingly , the Ex Post Facto Clauses provide a means o f assuring that an individual20 Some st atut es orrul es pun ishoff

enders by removing all parole el igi bili ty. Others mandate the l oss of ac crued senten ce credits; while others provide f or the loss of t

he ability to earn sentence c redi ts for a def ined peri od of time. S till others , li ke Policy No. 505.02, postpone a pr isoner ’s par ole eli gibil ity date.

21 See, e. g. , W

il liams v. Lee , 33 F. 3d 1010, 1013- 14 (8th C ir. 199 4); Fender v. Thompson , 883 F. 2d 303, 305- 08 (4th Cir. 19 89) ; Beebe v. Phelps , 650 F.2d 774 , 776 -77 (5 th Cir. U nit A 19 81) ; Gre enfield v. Sca fati , 277 F. Supp. 644, 646 (D. M ass. 19 67) ; People v . Cal lejas , 102 Cal . Rptr. 2d 363, 369 -71 (C t. App . 200 0); Johnson v. Commissi oner of Correc ti on , 786 A.3d at 10 99-1 00; Britt v. Chil es , 704 So. 2d 1046, 1047-48 (Fla. 1997); Garner v. Nels on , 963 P. 2d 124 2, 12 48-5 0 (K an. C t. App . 199 8); In re F orb is , 57 P.3d 63 0, 634 (W ash. Ct. App. 2002).

22 See, e.g., United States v. Ree se , 71 F.3d 582 , 585 -91 (6 th Cir. 1 995 ); Ewellv. Murr ay , 11 F. 3d 482, 485- 88 (4th Cir. 19 93) ; Sou za v. S tate , 792 P.2 d 28 9, 28 9-90 (Alask a Ct. App . 199 0); In re Ramirez , 705 P.2 d 89 7, 90 0-02 (Cal. 1985); In re Winner , 66 Cal. Rptr. 2d 333, 336- 37 ( Ct. Ap p. 19 97) ; Gasper v. Gunter , 851 P. 2d 912, 916- 19 (Colo. 1993); Mille r v. M it che ll , 25 S .W .3d 6 58, 6 63-6 4 (M o. Ct. A pp. 2 000 ); Lewis v. C lass , 5 65 N. W.2d 61, 63- 66 ( S. D. 1997). Th is cour t has em ploye d differ ent ratio nales to upho ld these rules. See, e.g. , Bonner v. Te nnesse e Dep’t of Corr. , 84 S.W.3d 576, 579 -82 (T enn. C t. App . 200 1); Sm ith v. C am pbe ll , 995 S.W .2d a t 118 -19; Ogb urn v. Tennessee De p’t of Corr. , 983 S.W .2d 6 77, 6 79 ( Te nn. Ct. A pp. 1 998 ); Rienholtzv. Bradley , 945 S. W.2d 727, 730 (Tenn. Ct. App. 1996 ).

23 For the pu rpo se of ap plying U .S. Co nst, art. I, § 10, c l. 1, the courts may no longer employ th e fi ction that the punishmen t for the subseque nt disc ipli nary offense t hat increases a pri soner’s incarcerat ion for an underlyi ng convi cti on relates o nly to the su bseq uent o ffense an d is som eho w unre lated to the und erlying co nviction

. See, e.g., Sta te
ex rel. Yor k v. Ru ssell , 180 Te nn. 51 5, 51 8, 17 6 S.W .2d 8 20, 8 21 ( 194 4); Whe eler v. Tenn essee D ep’t of Co rr. , 36 S.W .3d a t 828 -29.
-10- receives fair

warning of criminal

statutes and the punishments they ca rry. Weaver v. Graham , 450 U.S. at 28- 30, 101 S. Ct. at 964-65 ; Hock v. Singletar y , 41 F.3d 1470, 1471 (11th Cir. 1995). Every state has enacted statutes or issued rules or policies similar to Policy No. 502.02 that
are designed to punish p

risoner s for viola

ting pri son discip linary

rules or to punis h parolees for violating the terms of their parole. Frequen tly, depending on the seriousness of the offense or infraction, the punishment includes increasing the length of the offender’s incarcera

tion for his or her underlying

conviction or postponing the dat e whe n the offender will become eligible to be considered

for parole on his or her underly ing con vict ion. 20 Many prisoners a nd parolees have challenged

these statutes, rules, and policies on ex post facto grounds when they have the effect of increasing the leng

th of their incarce

ration be yond what it

would have been under the law as it was when they

committed

th eir underlying

offense. Thus, Mr. Utley is not the first prisoner, not even the first Tennessee prisoner, to mount an Ex Post Facto Clause challenge to disciplinary policies that effectively

increase the length of his underly ing sentence.

The response of the various state and federal courts to these Ex Post Facto Clause challeng es has been remarkably

inconsistent, and the outcomes of many of these cases are irreconcilabl e. A number of courts have invalidated such statutes and rules on Ex Post Facto Clause g

rounds; 21 while others have uph

eld virtua lly similar sta

tutes and rules. 22 However, two essential principles can now be gleaned from

these ca ses. Fir st, discipl inary penaltie s that incr

ease a p risoner ’s punishm

ent must be att ri buted to the prisoner’s underly ing conviction, not just to the new disciplinary of fense or parole violation. Johnson v. United States , 529 U.S. at 701, 120 S. Ct. at 180 1; Peoplev. Callejas , 102 Cal. Rptr. 2d at 371. 23 Second, since the effect of violat ing the d isciplina ry rule is to increas e the incarceration

for the underly

ing conviction, theonly relevant time for determining the adequacy of the notice to the prisoner of the pos si bility of increased punishment is the date on which the24 The date that the prisoner was convicted or sentenced is i rrelevant i n an Ex Post Facto Clause analysis. In
cases lik e thi s one, t

he date t he pris oner committed the subsequent disci plinar y off ense i s li kewise irre levant insof ar as an ex p ost facto claim is c onc erned , even th ough it may be quite re levant to a due pro cess cla im.
-11- prisoner committed the offense that led to the underlying

conviction and incarceration. 24 This is the law that was annexed to the prisoner’s underly ing crime. Weaver v. Graham , 450 U.S. at 30, 101 S. Ct. at 965; Will iams v. Lee , 33 F.3d a t 1013; Dyer v. Tennesse e Dep’t o f Corr. , No. M2001- 01446-COA-R3-CV, 2002 WL 2023142 , at *3 ( Tenn. Ct. App. Sept. 5, 2002), pet. reh. denied (Tenn. Ct. App. Oct. 8, 2002), perm. app. denied (Tenn. Feb. 18, 2003); Cavitt v. Tennessee Dep’t of Corr
. , No. 01A01-9712-CH-00713, 1999 WL 236277, at *3 (Tenn. Ct. App. Apr. 23, 1999) , perm. app. denied (Tenn. Oct. 11, 1999).

V.

The pivotal question in this case is whether the law in existence when Mr. Utley committed th e crimes that led to the sen tences h e is now se

rving pu t him on notic e that the

length o f his incarceration

for these sentences could be increa sed for violating prison disciplinary rules. In 1986, Tenn. Code Ann. § 40-35-501(h) put him onnotice that his release eligibility date was “conditioned
on . . . [his] go od behavior” and that vio lation of

disciplinary rules g ave the Commissioner the discretion to “defer . . . [his] release eligibility date so as to increase the total amount of time . . . [he] must serve before

becoming

eligible for rele ase statu s.” Thus, there c an be no d ispute that in 1986, Tenn. Code Ann. § 40-35-501(h) put Mr. Utley on notice that the Commissioner possessed the discretionary

authority to puni sh inf

raction s of priso n disciplin ary rules by deferr ing his r elease eligibility date.

It is likewise

undisputed that in 19 86, when M r. Utl ey comm itted his crimes, the Commissi oner

had exercised his discretion under Tenn. Code Ann. § 40-35-501(h) by adopting a policy limitingthe punishment for infractions of disciplinary rules to punitive segregation and the loss of sentence credits. I

t was not until 1989 that the Commissione r modified the polic

y to increa se the punishment for certain serious disciplinary infractions to include extending a prisone r’s rele ase eligibil ity date. Thus, the version of Policy No. 505.0 2 in existenc e when Mr . Utley committed

his crimes did not provide that escaping from prison would extend his releas e eligi bility date by twenty percent of his original maximum sentence or that c ommitting an offe nse resulting in

physical injury could extend his r

elease eligibil ity date by

as much a s thirty

percen t of his ori gin al maximum sentence. Wha t we mus t decide is whether the changes in Policy No. 502.02 after 1982 have any significance

for the purpose of U.S. Const. art. I, § 10, cl. 1 or Tenn. Const. art. I, § 11. We hold that they do not.

The law “annexed” to Mr. Utley ’s 1986 crimes put him on notice that violations of pr ison disciplinary

rules could prolong his incarceration. I t also puthim

on notice that the Commissioner, in the exercise of hisdiscreti on, could punish disciplinary

offense s by

requiring offe

nders to remain in prison until their mandatory rele ase date. Thus, by virtue of the 1986 versionof Tenn. Code Ann. § 40-35-501(h), pr

ison ers who violated disciplinary rules, depending on the seriousness of the infraction, ranthe risk of serving their entire sentence in prison without ever becoming elig ible to be considered for early

release on parole.-12-

The versions of Policy No. 502.02 issued in 1982, 1986, 1989, and 1996 amount to nothing
more than an exercise of the Commissioner’s discretion to set the punishment for di sci plinary offense s. These policies provide a framework for the exercise of the Commission er’s discre tion under Tenn. Code Ann. § 40-35-501(h). Even though the 1989 and 1996 ve rsions of Policy No. 502.02 provides for harsher penalties than the 1982 and 1986 versions of the p ol icy, the pena lties in the 1989 and 1996 versions remain less than themaximum penalties authorized by Tenn. Code Ann. § 40-35-501(h). Because the pena lties in the 1982, 1986, 1989, and1996 versions of the policy
are less severe than the maximum penalties authorized by Te nn. Code Ann. § 40-35-501(h), none of the policies implicate either U. S. Const. art. I, § 10, cl. 1 or Te nn. Const. art. I, § 11. The constitutional prohibitions against ex post facto laws do not extend to every chang e in law that may work to a pr isoner’s disadvantage, Dobbert v. Florida , 432 U.S. 282, 29 3, 97 S. Ct. 2290, 2298 (1977), especially changes to g u idelines intended to provide a framework for the Commissioner’s exerc i se of pre -existing statutory discreti on. They

are likewise not in

tended to requirethe courts to micromanage the numerous adjustments in policies needed to preserve internal order and discipline in prison. When Mr. Utley committed his cr i mes in 1986, he knew that violations of the pr

ison disciplinary

rules could put him a

t risk of ser ving a longer p eriod of time beforebecoming eligible to be considered for parole. Accordingly , neither the 1989 nor the 1996 changes in Policy No. 502.02 deprived him of a pre-existing right or enhanced the punishment for his 1986 crimes beyond the punishment authorized by Tenn. Code Ann. § 40-35-501(h). Therefore, applying the 1989 a

nd 1996 ve

rsions of Policy No. 502.0 2 to him

f or disciplinary offe

nses committed in 1989 and 1997 does not run afoul of the federal or state Ex Post Facto Clauses. See Portley v. Grossman , 444 U.S. 1311, 1312, 100 S. Ct. 714, 715 (1980) (Rehnquist, Circuit J.).

VI.

We affirm the judgment dismissing Mr. Utley ’s complaint for failure to state a claim upon which relief c an be g

ranted a nd remand the cas e to the trial court for wh atever furth er proc eedin gs may be requi red. We ta

x the costs of this appeal to Jeff Utley for which execution, if necessary , may issue.

_____________________________ WILL IAM C. KOCH, JR., JUDGE