1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-3387

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WARD T. EVANS,

Appellant

v.

WARDEN PERRY PHELPS; ATTORNEY GENERAL OF THE STATE OF 

DELAWARE

_____________

On Appeal from the United States District Court 

for the District of Delaware

(No. 1-09-cv-00488)

District Judge: Honorable Joseph J. Farnan, Jr.

Argued March 19, 2012

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Before: RENDELL, FISHER, and CHAGARES, Circuit Judges.

(Filed: April 12, 2012)

Michael G. Paul, Esquire (Argued)

1 Highland Avenue

Metuchen, NJ 08840

Counsel for Appellant

Gregory E. Smith, Esquire (Argued)

Department of Justice

820 North French Street

Carvel Office Building, 6th Floor

Wilmington, DE 19801
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Counsel for Appellees

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OPINION 

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CHAGARES, Circuit Judge.

Ward T. Evans appeals the District Court’s denial of his request for habeas corpus 

relief under 28 U.S.C. § 2254. Evans was convicted in 1982 of first-degree rape and 

sentenced to life in prison with the possibility of parole. At the time of his conviction, 

Delaware law offered two paths toward early release from prison. In 2005, the Delaware 

Supreme Court interpreted relevant state statutes to afford offenders with life sentences, 

like Evans, recourse to only one of the early release mechanisms. Evans contends that 

the Delaware court’s construction of the statutes unforeseeably enlarged his sentence in

violation of his Fourteenth Amendment due process rights. We disagree, and will affirm 

the District Court’s denial of Evans’s habeas petition. 

I

Delaware law extends to most prisoners sentenced before 1990 two potential 

avenues for early release from prison. The parole statute, Del. Code Ann. tit. 11, § 4346, 

provides that prisoners may be released on parole after serving one-third of the term 

imposed by the sentencing court, reduced by any accumulated merit or good behavior

credits (together, “good time credits”). Del. Code Ann. tit. 11, § 4346(a).1 For the 

purposes of parole eligibility, the statute measures the length of a life sentence with the 

 

1

“Good time” or “good behavior” credits are awarded to prisoners who comply with 

prison disciplinary rules. Del. Code Ann. tit. 11, §§ 4381, 4382. 
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possibility of parole as a “fixed term of 45 years.” Id. § 4346(c). Delaware empowers 

the Board of Parole to grant or deny parole, in its discretion, by using the “best interest of 

society” standard as a touchstone. Id. §§ 4346(a), 4347(c).

The second avenue, known as “conditional release,” is defined as “the release of 

an offender from incarceration to the community by reason of diminution of the period of 

confinement through merit and good behavior credits.” Id. § 4302(5). Section 4348 of 

title 11 of the Delaware Code, the conditional release statute, provides, in relevant part:

A person having served that person’s term or terms in incarceration, less 

such merit and good behavior credits as have been earned, shall, upon 

release, be deemed as released on parole until the expiration of the 

maximum term or terms for which the person is sentenced. 

Id. § 4348. A person’s “term . . . in incarceration” is his maximum period of 

incarceration, as set by the sentencing judge. Jackson v. Multi-Purpose Criminal Justice 

Facility, 700 A.2d 1203, 1206 (Del. 1997), overruled in part by Crosby v. State, 824 A.2d 

894 (Del. 2003) (per curiam). Delaware authorities record the end date of an inmate’s 

maximum term of incarceration on a “status sheet.” Section 4348 requires state

authorities to release an inmate who has reached his “short-term release date” — that is, 

his maximum term of incarceration, less accrued good time credits. Crosby, 824 A.2d at

899; Jackson, 700 A.2d at 1206. 

The parole and conditional release statutes are similar in certain respects. Both 

account for good time credits in calculating a reduction in the length of confinement. 

Snyder v. Andrews, 708 A.2d 237, 244 (Del. 1998); Jackson, 700 A.2d at 1206. And 

once an inmate is released from prison, either by way of parole or conditional release, he
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remains under state supervision and his release depends on compliance with conditions of 

parole. Jackson, 700 A.2d at 1206. The statutes also differ in important respects. While 

the decision to release an inmate on parole under § 4346 lies within the discretion of the 

Parole Board, conditional release under § 4348 is automatic. Crosby, 824 A.2d at 899; 

Jackson, 700 A.2d at 1206. In addition, § 4346(c) defines a life sentence with the 

possibility of parole as a fixed term of 45 years, but § 4348 makes no mention of an 

alternative definition for a life term.2

II

On the evening of November 12, 1981, Evans convinced his brother’s 14-year-old 

stepdaughter to accompany him to a liquor store. During the drive home, he took the 

vehicle on a detour and raped her. A Delaware grand jury indicted Evans on a single 

count of rape in the first degree.3 He was convicted following a jury trial and, in May 

1983, sentenced to life in prison with the possibility of parole. His conviction was 

affirmed on direct appeal. Evans’s status sheet listed his maximum release date as 

“death” and his maximum sentence, less good time credits, as “life.” 

On January 8, 2004, Evans filed a motion for correction of sentence in the 

Delaware Superior Court. See Del. Superior Ct. Crim. R. 35(a). He argued that his 

sentence was unlawful because his status sheet did not identify a conditional release date 

 

2

In 1989, the General Assembly enacted the Truth-in-Sentencing Act, 67 Del. Laws, ch. 

130, Del. Code. Ann. tit. 11, § 4354, which prospectively abolished parole. Crosby, 824 

A.2d at 899. Because Evans committed his crime in 1982, parole remains an option for 

him. For the most part, the Truth-in-Sentencing Act did not affect the conditional release 

option in § 4348. Id. at 900.

3

That crime was set forth in Del. Code Ann. tit. 11, § 764 (repealed 1986).
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calculated at a fixed term of 45 years, minus accumulated good time credits. The 

Superior Court denied Evans’s motion without comment, but the Delaware Supreme 

Court reversed. Evans v. State (Evans I), 2004 Del. LEXIS 545 (Del. Nov. 23, 2004). 

The court explained that Crosby v. State, a case that had been decided the previous year, 

made Evans’s sentence unlawful. Id. at *6. The court in Crosby held that “section 4348 

incorporates section 4346(c)’s definition of a life sentence as a fixed term of 45 years.” 

824 A.2d at 899. In reaching that result, the court overruled Jackson v. Multi-Purpose 

Criminal Justice Facility, an earlier case that construed § 4348 not to incorporate § 

4346’s life sentence definition and regarded defendants serving life sentences as 

ineligible for conditional release under § 4348. Id. The Crosby decision, the Delaware 

Supreme Court reasoned, rendered Evans’s sentence unlawful because his maximum 

release date did not reflect a 45-year term of imprisonment. Evans I, 2004 Del. LEXIS

545, at *6.

Evans I generated swift political backlash. Within months of the decision, the 

General Assembly enacted, and the Governor signed into law, House Bill No. 31, 75 Del. 

Laws, c. 1, § 1, which declared Evans I “null and void.” The Delaware Supreme Court 

promptly agreed to reconsider Evans I and to address the constitutionality of House Bill 

No. 31. In a lengthy opinion, it withdrew Evans I, ruled that Evans’s sentence is lawful, 

and struck down House Bill No. 31 as a violation of separation of powers principles. 

Evans v. State (Evans II), 872 A.2d 539, 553, 558 (Del. 2005) (per curiam). To explain 

its about-face, the court clarified the scope of Jackson and Crosby. In cases involving 

violent offenders sentenced to life in prison before 1990, the court stated, Jackson
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controls. Id. at 557. For those individuals, good time credits may accelerate the date of 

parole eligibility under § 4346. Id. But good time credits have no bearing on a shortterm release date pursuant to § 4348, for Jackson offenders are ineligible for conditional 

release. Id. at 557-58. In cases involving non-violent habitual offenders sentenced to life 

in prison with the possibility of parole after 1990, by contrast, Crosby controls. Id. at 

557. Those individuals may use good time credits to accelerate a conditional date of 

release, measured against a life sentence pegged at 45 years. Id. To the extent that 

Crosby purported to overrule Jackson, the court explained, the statement was dicta. Id. at 

558. Finding that Jackson controlled Evans’s appeal, the court held that Evans “is not 

eligible for conditional release and must remain incarcerated until his death, unless he is 

granted parole.” Id.

After losing in Evans II, Evans filed another motion for correction of sentence, 

arguing, among other things, that the Delaware Supreme Court’s construction of §§ 4346 

and 4348 infringed his federal due process rights. The Superior Court denied the motion. 

Agreeing that “there was no due process violation arising from its statutory 

interpretation” in Evans II, the Delaware Supreme Court affirmed. Evans v. State, 918 

A.2d 1170 (Table) (Del. Jan. 24, 2007). 

Having exhausted his state remedies, Evans filed the underlying petition for a writ 

of habeas corpus in the United States District Court for the District of Delaware. The 

petition raised three claims: (1) the Delaware Supreme Court’s construction of state law 

in Evans II deprived Evans of good time credits earned in anticipation of early release, in 

violation of his due process rights; (2) the jury instructions given at trial were unlawful; 
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and (3) the prosecutor elicited perjured testimony. The case was transferred to this Court 

as a second or successive habeas petition. See 28 U.S.C. § 2244(b)(3)(A). We denied 

leave to file a second or successive petition insofar as Evans sought to assert claims of 

trial court error and prosecutorial misconduct. Insofar as he wished to assert a claim 

challenging the execution of his sentence, we concluded that such a claim would not 

constitute a second or successive petition and thus needed no authorization. We 

transferred the petition back to the District Court to consider Evans’s first claim. 

Evans maintained that the Delaware Supreme Court’s construction of § 4348 in 

Evans II unforeseeably withdrew from him the option of conditional release and the value 

of his accrued good time credits for accelerating conditional release. By unexpectedly 

interpreting the statute in this way and by applying the interpretation retroactively to his 

case, Evans argued, the court infringed his due process rights. The District Court 

disagreed and denied habeas relief. Evans sought a certificate of appealability from this 

Court pursuant to 28 U.S.C. § 2253. We appointed counsel and granted a certificate of 

appealability only on the issue of “whether the Appellant’s Due Process rights were 

violated by the ret[ro]active application of the Delaware Supreme Court’s decision in 

Evans v. State, 872 A.2d 539, 558 (Del. 2005).” 

III

The District Court had jurisdiction over Evans’s petition pursuant to 28 U.S.C. §§ 

1331 and 2254(a). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(c)(1)(A). 

We exercise plenary review over the District Court’s denial of a petition for a writ of 

habeas corpus, reviewing the state court’s decision under the same standard the District 
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Court was bound to apply. Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009). That 

standard was set by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 

No. 104-132, 110 Stat. 1214. Federal courts may issue habeas relief “with respect to a 

claim that was adjudicated on the merits in State court proceedings” only if the claim 

“resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United 

States.” 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 131 S. Ct. 770, 785 (2011). 

IV

Evans contends that, through its construction of § 4348 in Evans II, the Delaware 

Supreme Court expanded the punishment accompanying his conviction in a manner that 

was not foreseeable at the time of his criminal act. In his view, § 4348 afforded no fair 

warning that it excludes violent offenders sentenced to life in prison before 1990. Evans

claims that the Delaware court’s unexpected and indefensible constriction of § 4348 

relief, applied retroactively to him, amounts to a denial of the due process of law.

In Bouie v. City of Columbia and Rogers v. Tennessee, the Supreme Court 

established that the Due Process Clause forbids a court from giving retroactive effect to 

its unforeseeable enlargement of a statute defining criminal conduct. Rogers v. 

Tennessee, 532 U.S. 451, 462 (2001); Bouie v. City of Columbia, 378 U.S. 347, 354-55

(1964). Deeply rooted in enduring understandings of due process, the Court explained, is 

the principle that a criminal statute must give fair notice of the conduct that it makes 

criminal. Bouie, 378 U.S. at 350-51 (citing United States v. Harriss, 347 U.S. 612, 617 

(1954)). Deprivation of the right to fair notice can result both from vague criminal 
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statutes and from “an unforeseeable and retroactive judicial expansion of narrow and 

precise statutory language.” Id. at 352. “If a judicial construction of a criminal statute is 

unexpected and indefensible by reference to the law which had been expressed prior to 

the conduct in issue,” it must apply prospectively to satisfy the defendant’s right to due 

process of law. Id. at 354 (quotation marks omitted). 

Bouie and Rogers stand for the principle that judicial statutory construction that 

attaches criminal liability “to what previously had been innocent conduct” impairs due 

process, Rogers, 532 U.S. at 459, but it is less clear whether the decisions encompass

statutory construction that unexpectedly broadens punishment for conduct already made 

criminal. Assuming, for the purposes of this appeal, that they do, the denial of Evans’s

due process claim is not contrary to or an unreasonable application of the cases. When

Evans committed his crime — the relevant point in time for the purposes of judging 

foreseeability — the Delaware Supreme Court had not addressed the interplay between

§§ 4346 and 4348. Its subsequent pronouncements in Jackson, Crosby, and Evans I

therefore do not affect the question whether Evans had fair notice that violent defendants 

sentenced to life in prison are ineligible for § 4348 relief. As the District Court correctly 

reasoned, the plain text of § 4348 contains no hint that it treats a life sentence as anything 

other than a life sentence. And, as the Delaware Supreme Court later explained in 

Jackson, the word “term” in § 4348 implies a fixed term rather than a life sentence. 700 

A.2d at 1207. This language supplies fair warning that conditional release is not 

available to certain offenders sentenced to a term of natural life rather than a fixed term 

of years.
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It is true, as Evans argues, that one might read § 4348 to incorporate § 4346(c)’s 

definition of a life sentence as a fixed term if one chooses to read the statutes 

referentially. Indeed, the Delaware Supreme Court later did so in Crosby and Evans I. 

But the Bouie and Rogers standard requires more than a possibility that a statute might be 

construed in a certain manner. It is just as likely, on a plain reading of the text, that § 

4348 does not incorporate § 4346(c)’s definition of a life sentence, making certain 

offenders serving life sentences ineligible for conditional release. Where a statute 

possesses more than one plausible reading, it is foreseeable for a court to choose one of 

those readings. Cf. Rogers, 532 U.S. at 461 (expressing concern about hamstringing the 

“normal judicial processes” of state courts in an “evolving legal system”). It follows that 

the construction given § 4348 in Evans II was not “unexpected and indefensible by 

reference to the law which had been expressed prior to the conduct in issue.” Bouie, 378 

U.S. at 354; see also Rogers, 532 U.S. at 462. The Delaware Supreme Court did not act 

contrary to or unreasonably apply clearly established federal law in finding that Evans 

II’s construction of § 4348 comports with the Due Process Clause.4

 

4 At oral argument, Evans urged that his ineligibility for conditional release was itself a 

due process violation. That view is mistaken. Evans has no right under the Constitution 

to obtain conditional release from prison before the expiration of his valid life sentence. 

Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (per curiam); Greenholtz v. Inmates of 

Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). To the extent that he argues that 

state officials withdrew from him a state-created liberty interest in conditional release, 

Evans forgets that the Delaware Supreme Court explained, in Evans II, that Delaware law 

does not vest in offenders sentenced to life any interest in conditional release. 872 A.2d 

at 557-58. We have no warrant to question the holding of Evans II, a decision that rests 

squarely on state law. 28 U.S.C. § 2254(a); Swarthout, 131 S. Ct. at 861; Wilson v. 

Corcoran, 131 S. Ct. 13, 16 (2010) (per curiam). Nor did Evans II’s construction of § 

4348 deprive Evans of earned merit or good behavior credits. Cf. Superintendent, Mass. 
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V

For the foregoing reasons, we will affirm the judgment of the District Court. 

 

Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 455 (1985) (holding that due process requires 

“some evidence” to support official revocation of good time credits). He has already 

benefitted from those credits, which hastened the date on which he became eligible for 

parole under § 4346. Now eligible, Evans has thrice received consideration before the 

Parole Board. And parole remains available to him as a potential avenue toward early 

release.

Evans also urged “a limited remand . . . for the purpose [of] interpreting, pursuant 

to the Delaware Code, the actual term of his parolable life sentence, and incorporating, 

pursuant to Pepper v. United States, 131 S. Ct. 1229 (2011), the issue of the petitioner’s

rehabilitative efforts while incarcerated.” Evans Rule 28(j) Letter. The argument is 

unexhausted, see 28 U.S.C. § 2254(b)(1)(A), and beyond the scope of the certificate of 

appealability, see § 2253. It is also inapposite, for Pepper concerned interpretation of 

federal sentencing statutes, while Evans is incarcerated pursuant to Delaware law.