# FILED September 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

JIMMY WAYNE WILSON, ) ) Plaintiff/Appellant, ) ) JAMES T. FITE, VIVIEN TROY C OOK, ) DEWEY SCOTT FRAZIER, JERRY L. ) CHILTON, PAUL CARRIER, ET AL., ) ) Plaintiffs, ) Appeal No. ) 01-A-01-9706-CV-00266 VS. ) ) Davidson Chancery STATE OF TENNESSEE, GOVERNOR ) No. 93C-91 NED RAY McWHERTER, PAROLE ) ELIGIBILITY REVIEW BOARD & ) MEMBERS, JIM THRASHER , ) JOHN S. WILDER, JIMMY NAIFEH, ) AND CHARLES BURSON, ET AL., ) ) Defendants/Appellees. )



### OPI NIO N ON PET ITI ON T O RE HEAR Jimmy Wayne Wilson has filed a pro se request for a rehear ing, claiming that this c ourt’s opinion of January 16 , 1998 is in conflict wi th well-established principles

of law. While Rule 39 of the Rules of Appellate Procedure provides that an appeals court may grant a rehea ring in situations w here “th e court’s opinion is in confli ct wi th a statute, prior decisi on, or other principle of law,” Mr. Wilson has not stated any principle of law nor cited any statute that would require us to find that he is entitled to the relief he seeks.

Mr. Wilson does cite a recent case of the United States Supreme Court that was not mentioned in his br ief, Lynce v. Mathi

s , __ U.S. __, 117 S.Ct 891, __ L.Ed.__ (1997), which he clai ms supp orts his argument that the l egislature and the Parole Eligibility R

eview Board violated the consti tutional prohibition agai nst ex post facto laws when they r

efused to extend to him the accelerated release benefits flow ing from the 1989 Crimin al Reform Sen tencing Act, Te nn. Code Ann. § 40-35-601 et se q.2 The Lynce

case, like the

earlie r case o

f Weaver v. Graham , 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed 17 (1981), deal t with Florida statutes that reduced the rate at which state inmates could accumulate good and honor time.

Mr. Weaver had been convicted of seco nd-degree murder in 1976. In 1978, the Florida legislature reduced the maximum number of sentence credits that prisoners could earn each month. The Court found the statute in question v iolated the ex post facto proh ibition as to Mr. Weaver, because in changing the formula for sentence reduction credits to his detriment, thestatute made thepunishment for his crimemore onerous than d id the statute that was in effect at the time he was sentenced.

Mr. Lynce was convicted of attempted murder i n 1986 on a plea of nolo contend ere. In 1987 the Florida legisl ature attempted to address the pri son overcrowd in g problem by creating a new form of overcrowdi ng credit, known as adminis trative gain-time. Mr . Lync e earned enough sentence reduction credits, including administrative gain -time, to be released in 1992. That same year, the legislature enacted a statu te preventing those conv icted of murder or attempted murder from earning any administr ative gain-time. After Mr. Lynce was released, the Floridaattorney-general i ssued an opinion that the legi slature intended the statute to applyretroactively. Mr. Lynce was r e-arrested, his administr ative gain-time w

as taken away from him, and he filed a petition for habeas corpu s.

After the lower federal courts rejected Mr. Lynce’s petition, the Supreme Court took certiorari. In i ts opinion, theCourt extended its interpretation of the ex post facto prohibition beyond its holding in Weaver, by rejecting the State’s a rgument that the ex post facto clause did not apply to Mr. Lynce because admin istrativ e gain-tim e was not a part of the law at the time that he was conv icted. It appears to

us that the decisiv e factor for the Court was that Mr. Lynce had been actually awarded 1,860 days of gain-time credits before they were retroacti vely cancelled. The C ourt’ s3

decision did not affect the applicationof the statute to prevent certai n classes of inmates from receiving admi nistrative gain-time in future.

In reach ing its decision the Court s pecifically disting uished the Lynce case from its previous decis ion in California Department of Correctio ns v. M orales, 514 U.S. 499, 115 S. Ct. 1597, 131 L.Ed 2d 588 ( 1995). In the Morales case, th e Court held thatan amendment to California’s parol e procedures that decreased the frequency of parole hearings for certai n offenders did not viol ate the ex-post facto prohibition, because it was speculative a t best that Mr. Morales’ ultimate date of release would be affected by the change in the timing of the pa role hearings.

While the situations of Mr. Morales and Mr. Wilson are not the same (Mr. Moralesis a notorious multiple murderer, while nobody is claiming that Mr. Wilson has ever killed anyone), the ex

post facto iss ue argued in the present cas e is similar to that in the Morales

case, and not nearly as close to that in the Lynce case.

As we stated in our opinion in this case, Tenn. Code Ann. § 40-35-601, et seq. placed the decision to amend or not to amen d a ha bitual criminal’s parole eligibility date within the discretion of the Parole Eligibility R eview Board. Thus, Mr. Wilson was not deprived of an entitlement to release when the statut e was amended to exclude from its

provisions those whose triggering offense was an offense against the perso n. Like Mr. Morales, M r. Wil son only en joyed a spe culative possibility that he would h ave been r eleased earlier if not for t he change in the law.

Unlike both Mr. Morales and Mr. Wilson, Mr. Lynce had earne d enough senten ce reduction credits to be entitled to release before the State of Florida too k away those credits. Far

from enjoying a merely speculative possibility of release, Mr. Lynce had actually been freed upon the c ompletion ofhis sentence when he w as rearrested. It thus appears to this court that despite

the Lynce

case, Mr. Wilson is not entitled to the relief he seeks

.4 The petition is denied.

_________________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_________________________________ BEN H. CANTRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., JUDGE