Chandler v. Pallito, No. 210-4-13 Wncv (Tomasi, J., Dec. 24, 2015)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy 

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 210-4-13 Wncv

Dennis Chandler,

Plaintiff

v.

Andrew Pallito,

Defendant

Opinion And Order On

Cross-Motions For Summary Judgment

Plaintiff Dennis Chandler filed this habeas corpus action claiming a violation 

of the Ex Post Facto Clause of the United States Constitution, U.S. Const. art. I, 

§ 10. He claims that statutory amendments and changes in the Department of 

Corrections’ (DOC’s) decision-making or policies occurring after the offenses that led 

to his incarceration have left him effectively ineligible for parole. He asserts that, 

but for those changes, he would be eligible for parole. Mr. Chandler and the State 

have filed cross-motions for summary judgment. The Court makes the following 

determinations.

1. Claims

Mr. Chandler pled guilty to aggravated sexual assault, kidnapping, and 

burglary and was sentenced in April 1997 to 25 to 60 years. He has been 

incarcerated ever since. He alleges that, at the time of sentencing, the DOC had the 

goal of making programming and other decisions related to him so that he would be 
2

ready for parole at his minimum term.1 He asserts that DOC later changed its goal 

for him. Rather than having him on a track that might lead to release at his 

minimum, it now has him on a track that anticipates parole at some later point. 

In further support of his ex post facto claim Mr. Chandler cites to numerous 

administrative and legislative changes that have allegedly occurred since his 

conviction. He contends that the political climate, nationally and in Vermont, with 

regard to “truth in sentencing” and violent or sexual offenders has become much 

harsher over the years. In 2002, the Legislature required the DOC to adopt a

“reintegration process” and required the DOC to make a recommendation to the 

Parole Board regarding suitability for parole after an offender convicted of a “listed 

crime” had “completed 180 days of supervision in a conditional reentry program.” 

28 V.S.A. § 725(2). The Parole Board, he asserts, has become highly reluctant to 

grant parole unless an offender is successful with furlough.2

 

1 Mr. Chandler’s position is not so much that he necessarily would have been 

paroled at his minimum, but that he would have been given what institutional 

opportunities were available so he could posture himself as a good candidate for 

parole by his minimum.

2 Mr. Chandler also notes that, in 2004, the legislature adopted a mechanism by 

which the DOC could designate a sex offender as “high risk” for purposes of the sex 

offender registry. In 2009, it adopted 28 V.S.A. § 204b, which requires all such 

“high risk” offenders to serve at least 70% of their maximum terms (the 70% rule). 

At one point in the past, the DOC determined that Mr. Chandler was “high risk” 

and subjected him to the 70% rule, pursuant to 28 V.S.A. § 204b. This Court, 

however, found that the retroactive application of the 70% rule violated the Ex Post 

Facto Clause in Wood v. Pallito, No. 947-12-09 Wncv, 2010 WL 4567692 (Vt. Super. 

Ct. Nov. 3, 2010). Mr. Chandler does not claim that, after Wood, the DOC has 

continued to apply 28 V.S.A. § 204b to him. He does suggest in passing that the 

DOC may be exercising its discretion in connection with his programming to 

achieve the same result. He has provided no evidentiary support for such 

speculation, however.
3

Mr. Chandler’s ex post facto claim is premised on a series of interrelated laws 

and policies that, taken together, allegedly have an adverse impact upon him. 

First, he maintains that the Parole Board is highly unlikely to grant parole until he 

successfully participates in conditional reentry furlough. To be eligible for furlough, 

he needs to complete institutional programming. The DOC, however, has concluded 

that he will not be offered programming at this point, which has the effect of 

denying him any realistic chance for parole.

To be clear, Mr. Chandler’s argument is not that the purported requirements 

of participating in institutional programming and conditional reentry furlough are 

ex post facto. Similarly, he does not argue that the Parole Board’s strong preference 

for successful participation in furlough prior to granting furlough is, alone, ex post 

facto. He claims an ex post facto violation because: (1) an unspecified and 

“unwritten policy” of DOC, presumably, much tougher treatment of violent or 

sexual offenders; (2) does not allow him to participate in institutional programming; 

(3) prevents furlough; and (4) inevitably leads to the denial of parole.

2. Relevant Legal Provisions

In 1997, an inmate such as Mr. Chandler would have become eligible for 

parole upon completing the minimum term of his sentence. 28 V.S.A. § 501(a) 

(1997). This remains the case today. 28 V.S.A. § 501(2). 

The furlough statute in 1997 was fully discretionary with the DOC and did 

not include anything in the nature what is now known as reintegration and 

conditional reentry furlough.3 28 V.S.A. § 808 (1997). The current furlough 

 

3 As a general matter, reintegration and conditional reentry furlough are 

rehabilitative in nature and plainly work to inmates’ benefit rather than 
4

statutes give the DOC discretion to place an inmate on reintegration furlough up to 

180 days prior to the minimum. 28 V.S.A. §§ 808(a)(6), 808c(a)(1). The DOC also 

has discretion, when the sentence minimum is reached, to release “the offender to 

participate in a reentry program while serving the remaining sentence in the 

community.” 28 V.S.A. § 723(a). 

The conditional reentry statutes include a provision that requires the DOC to 

make a “recommendation relative to whether the offender should be released to 

parole” with regard to furloughed inmates. 28 V.S.A. § 725. For inmates convicted 

of listed offenses, such as Mr. Chandler, that recommendation is required when “in 

the sole discretion” of the DOC, the inmate has successfully completed 180 days of 

supervision in the community. Id. § 725(2). There is no statute requiring the 

Parole Board to defer to that recommendation.

As a result of the above statutory timelines, an offender in Mr. Chandler’s 

position, can qualify for reintegration furlough six months prior to his minimum. 

He can then successfully complete the furlough and seek parole at his minimum 

release date. Accordingly, even if the Parole Commission has a strong preference 

for completion of furlough prior to the grant of parole, nothing in the furlough 

statutes precludes an offender from meeting that preference. 

From the time that Mr. Chandler’s offenses were committed to the present, 

there has never been any statutory limitation on the DOC’s discretion over 

programming decisions (both the suitability for programming and the nature of it) 

 

disadvantage. It is Mr. Chandler’s current inability to qualify for furlough due to 

the DOC’s programming decisions to which he objects.
5

and over its decisions regarding an inmate’s suitability for furlough. This decisionmaking has remained fully discretionary at all relevant times. 

3. Summary Judgment Standard

Summary judgment is appropriate if the “movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Vt. R. Civ. P. 56(a). “In determining whether a genuine issue of fact 

exists, the nonmoving party receives the benefit of all reasonable doubts and 

inferences.” Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996).

“Where . . . the moving party does not bear the burden of persuasion at trial, it may 

satisfy its burden of production by indicating an absence of evidence in the record to 

support the nonmoving party’s case. The nonmoving party then has the burden of 

persuading the court there is a triable issue.” Mello v. Cohen, 168 Vt. 639, 639–40 

(1998).

4. Burden of Proof

The ultimate burden of proving an Ex Post Facto Clause violation is on the 

claimant, Mr. Chandler. See California Dep’t of Corrections v. Morales, 514 U.S. 

499, 510 n.6 (1995) (noting “the settled rule that a claimant must bear the risk of 

nonpersuasion as to the existence of an alleged constitutional violation”); Evans v. 

Gerry, 647 F.3d 30, 35 (1st Cir. 2011).

5. Analysis

As the United States Supreme Court has explained, the Ex Post Facto Clause 

bars legislative acts that “retroactively alter the definition of crimes or increase the 
6

punishment for criminal acts.”4 Collins v. Youngblood, 497 U.S. 37, 43 (1990). 

“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less 

punishment, but the lack of fair notice and governmental restraint when the

legislature increases punishment beyond what was prescribed when the crime was 

consummated.” Weaver v. Graham, 450 U.S. 24, 30 (1981). The Court has “long 

held that the question of what legislative adjustments ‘will be held to be of 

sufficient moment to transgress the constitutional prohibition’ must be a matter of 

‘degree.’” Morales, 514 U.S. at 509 (quoting Beazell v. Ohio, 269 U.S. 167, 171 

(1925)). 

The Ex Post Facto Clause applies to laws and legislative acts, whether 

adopted by the legislature or through formal agency rulemaking. Prater v. U.S. 

Parole Com’n, 802 F.2d 948, 954 (7th Cir. 1986). A legislative regime that includes 

discretion is not for that reason totally immune from the protections of the Clause. 

Garner v. Jones, 529 U.S. 244, 253 (2000). But, where broad discretion is involved, 

the Clause does not fossilize how it may be exercised. Id. at 253–54. Indeed, the 

Court has acknowledged that the values that inform discretionary decision-making 

may well change over time and that such changes do not implicate the Ex Post 

Facto Clause. Id. 

 

4 In some early decisions, the United States Supreme Court had “suggested that 

enhancements to the measure of criminal punishment fall within the ex post facto

prohibition because they operate to the ‘disadvantage’ of covered offenders.” 

Morales, 514 U.S. at 506 n.3. In Morales, however, the Court clarified that “the 

focus of the ex post facto inquiry is not on whether a legislative change produces 

some ambiguous sort of ‘disadvantage,’ nor . . . on whether an amendment affects a 

prisoner’s ‘opportunity to take advantage of provisions for early release,’ . . . but on 

whether any such change alters the definition of criminal conduct or increases the 

penalty by which a crime is punishable.” Id.
7

Mr. Chandler has failed to identify any ex post facto violation in this case. 

He remains eligible for parole and he does not assert that the Parole Board’s broad 

discretion to grant or deny it is any different now than at the time of his offenses. If 

the DOC’s programming decisions regarding Mr. Chandler have resulted in a 

diminished likelihood of parole at this time, that result necessarily follows from the 

DOC’s fully discretionary determination that he is not yet ready to begin the 

programming that might, at some point, demonstrate that he is suitable for the 

furlough and that, in turn, might persuade the Parole Board that he is suitable for 

parole. Such decisions are committed fully to the DOC’s discretion. They are not 

“legislative acts.”

There can be no question that the DOC has extremely broad discretion over 

programming decisions. Rheaume v. Pallito, 2011 VT 72, ¶ 11, 190 Vt. 245, 250. 

That discretion extends to the DOC’s determination of the appropriate timing for an 

inmate to begin programming. Wool v. Bullard, No. 203-4-15 Wncv, 2015 WL 

5311521, at *1 (Vt. Super. Ct. Aug. 18, 2015) (“The decision at issue in this case is 

the timing of programming. The DOC has decided that now is not the appropriate 

time for Mr. Wool to participate in VTPSA. The decision falls squarely in the 

Rheaume line of authority and is not reviewable in this case.”). The DOC’s 

discretion in this regard was no less broad before the events that led to Mr. 

Chandler’s incarceration than after. 

Mr. Chandler argues, without supporting evidence, that the DOC has 

implemented an unwritten policy, presumably, of keeping offenders similar to him 

incarcerated until some unspecified point in time rather than legitimately 

exercising its programming discretion. This argument fails for two reasons. First, 
8

it is simply not supported by the record. The available evidence in the record shows 

that the DOC has evaluated Mr. Chandler’s suitability for programming and 

decided that now is not the time. See Letter from Kim Bushey to Mr. Chandler 

(dated Feb. 16, 2011) (“The egregious nature of the offenses indicates that the 

potential risk of harm and risk to public safety would not be sufficiently mitigated 

by program participation to support your release at your minimum.”). There is no 

evidence that the DOC has “refused” to exercise its discretion or applied any 

nondiscretionary rule to him, written or unwritten.5 

Second, even if the DOC has developed a general approach of denying early 

programming for inmates such as Mr. Chandler that is different from its historical 

practice, the change in the way that DOC exercises its discretion does not amount to 

a legislative act and an ex post facto violation. Decisions from the United States 

Courts of Appeal and United States Supreme Court in the context of parole and 

sentencing guidelines explain why. 

In the 1980s, the United States Parole Commission revised the guidelines by 

which federal parole decisions were made. The retroactive application of the new 

guidelines led to ex post facto litigation because many prisoners found that the new 

guidelines produced more onerous parole decisions. By statute, the Commission 

had unreviewable discretion over the substance of parole decisions but was required 

to adopt guidelines to direct the exercise of that discretion. Wallace v. Christensen, 

802 F.2d 1539, 1544–45 (9th Cir. 1986) (en banc). The Circuit Courts largely 

 

5 Neither party in this case developed the record with more direct evidence

regarding the DOC’s exercise of its programming discretion, or lack thereof, in Mr. 

Chandler’s case. The burden of proof on this point is on Mr. Chandler, however. He 

has not met his burden and has not filed any affidavit attesting to the need for 

additional discovery on the issue under Vt. R. Civ. P. 56(d).
9

rejected ex post facto challenges arising when the guidelines were amended because 

the guidelines, new or old, were themselves merely the Commission’s expression of 

how its parole discretion should be exercised; the guidelines were not laws or 

legislative acts within the meaning of the Ex Post Facto Clause. Id. at 1553–54 

(collecting cases). A mere change in the way an agency with pre-existing discretion 

exercises that discretion is outside the scope of the Ex Post Facto Clause.

Against that backdrop, in 1983 the Florida Legislature replaced its system of 

indeterminate sentencing with a regime of sentencing guidelines proposed by a 

guidelines commission and adopted by the Florida Supreme Court. Miller v. 

Florida, 482 U.S. 423, 425 (1987). Subsequent revisions to the guidelines had to be 

adopted by the Legislature. Id. The guidelines produced a presumptive sentence 

range within which the trial judge had unreviewable discretion to choose any 

particular defendant’s sentence. Id. at 426. The trial judge had discretion to 

sentence outside of the presumptive range, but only for “clear and convincing 

reasons” and the departure itself was reviewable. Id. When Mr. Miller committed 

his offenses, the 1983 guidelines were in place. When he was sentenced, revised 

guidelines had been adopted by the Legislature. He was sentenced pursuant to the 

revised guidelines, which produced a more severe sentencing range. Id. at 427. 

This led to an ex post facto challenge that reached the United States Supreme 

Court.

The Court unanimously found that the retroactive application of the revised 

guidelines violated the Ex Post Facto Clause. The old guidelines would have 

produced a 3 1/2–4 1/2 year presumptive sentence. The new guidelines produced a 

5 1/2–7 year presumptive sentence. Id. at 432. Miller was sentenced to 7 years. 
10

While the sentencing judge under the old guidelines could have departed from them 

and delivered a sentence within the range produced by the new guidelines, he could 

have done so only for clear and convincing reasons and that decision would be 

subject to review. The revision to the guidelines clearly and tangibly increased the 

punishment for Mr. Miller’s offense after it had been committed and was ex post 

facto.6

The Supreme Court rejected Florida’s argument that its guidelines merely 

served to influence the trial judge’s sentencing discretion in the same way as the 

United States Parole Commission’s suitability guidelines. It explained that the 

Parole Commission cases are “inapposite” because the many Circuit Courts 

addressing the matter found the parole guidelines to “merely rationalize the 

exercise of statutory discretion” and not be laws within the contemplation of the Ex 

Post Facto Clause. On the other hand, the Florida revised guidelines were adopted 

by its Legislature and “create[d] a high hurdle that must be cleared before 

discretion can be exercised.” Id. at 435. In other words, the revised sentencing 

guidelines were a legislative act that limited the way that discretion could be 

exercised. The parole guidelines, on the other hand, were not a legislative act. 

 

6 Guidelines aside, if Mr. Miller had merely argued that sentencing judges used to 

exercise their sentencing discretion to produce more favorable sentences, and now 

they exercise it to produce more onerous sentences, there would be no law or 

legislative act at issue for ex post facto purposes. A mere change in the way 

discretion is exercised cannot establish an ex post facto violation. Yet this, in effect, 

is what Mr. Chandler is claiming here: that the DOC used to exercise its discretion 

in a way that was more favorable to him and now it exercises it in a way that is less 

favorable to him. There is no legislative act at issue here. Pointing to the more 

onerous effect (diminished odds of parole) is not enough to establish a violation of 

the Clause.
11

They simply represented a shift in the way that pre-existing discretion would be 

exercised by the entity entrusted to exercise it.

In this case, at most, Mr. Chandler has demonstrated that the DOC has 

always had discretion over programming decisions and that it may be exercising 

that discretion differently now than it has in the past. There is no evidence on this 

record that DOC is applying some unwritten rule or policy to him and, if it is, there 

is no indication that the policy is anything other than an expression of its preexisting discretion. Under cases such as Wallace and Miller, such exercises of 

discretion do not establish an ex post facto violation. 

Nor is this a case in which the Legislature has done something through 

agency rulemaking that it could not do directly. As one Court has described, the 

question may be framed as whether the administrative rule is legislative or 

interpretive in nature.

As the text of the [Ex Post Facto] Clause makes clear, the ex post facto 

prohibition applies only to “laws.” Accordingly, “[t]he constitutional 

prohibition against ex post facto laws . . . is directed to the legislative 

branch of government rather than to the other branches.” This is not 

to say, however, that all actions of administrative agencies are exempt 

from Ex Post Facto Clause scrutiny. “When Congress has delegated to 

an agency the authority to make a rule instead of making the rule 

itself, the resulting administrative rule is an extension of the statute 

for purposes of the [C]lause.” The reason for applying the Clause to 

such legislative rules is straightforward: Congress “should not be 

allowed to do indirectly what it is forbidden to do directly.” But when 

an agency promulgates an interpretive rule, the Ex Post Facto Clause 

is inapplicable. “[I]nterpretive rules simply state what the 

administrative agency thinks the statute means, and only ‘remind’ 

affected parties of existing duties.” Unlike legislative rules, which 

“ha[ve] the force of law,” interpretive rules “are statements of 

enforcement policy. They are . . . ‘merely guides, and not laws: guides 

may be discarded where circumstances require; laws may not.’”
12

United States v. Ellen, 961 F.2d 462, 465 (4th Cir. 1992) (as amended) (citations 

omitted). 

Here, Mr. Chandler has not come forward with evidence of any rule that has 

been adopted by DOC through the Administrative Procedures Act that is having 

any impact on his eligibility for parole. Nor has he produced evidence of even an 

unwritten policy or rule that has such an effect. Again, as set out above in Note 5, 

Mr. Chandler has the burden of proof on those points, and he has failed to meet that 

burden. 

Mr. Chandler also is not entitled to rely on his own beliefs that the DOC 

would continue to exercise its unfettered programming discretion in the future in 

the same way that it did when he was sentenced. “Settled expectations regarding 

the vigor of enforcement are unreasonable.” Prater, 802 F.2d at 953. “[D]iscretion, 

by its very definition, is subject to changes in the manner in which it is informed 

and then exercised. The idea of discretion is that it has the capacity, and the 

obligation, to change and adapt based on experience.” Garner, 529 U.S. at 253. The 

fact that DOC’s exercise of discretion may, for the time being, result in a weaker 

chance for a positive parole decision for Mr. Chandler does not make its exercise of 

that discretion unconstitutional. 

Mr. Chandler’s argument in this case appears to be based largely on a 

misunderstanding of Girouard v. Hofmann, 2009 VT 66, 186 Vt. 153. Mr. Girouard 

had a parole-eligible life sentence with no minimum. While serving his sentence, 

the Legislature amended the furlough statute to require completion of a minimum 

term prior to beginning reintegration furlough. Id. at ¶ 3, 186 Vt. at 155. He 

claimed in the trial court that this amendment, as applied to him, was ex post facto 
13

because he had no minimum to serve; could never be furloughed, and, without 

furlough, he could never be paroled. He had per se lost the right to parole eligibility. 

The trial court dismissed for failure to state a claim. 

The Supreme Court reversed for factual development, explaining:

If in fact the 2001 amendment to the furlough statute created a 

sufficient risk of eliminating plaintiff’s eligibility for parole, then 

plaintiff’s claim of an Ex Post Facto Clause violation may prevail. 

Plaintiff alleges that the situation here is essentially identical to that 

in Knox v. Lanham, 895 F. Supp. 750 (D. Md. 1995), aff’d, Worsham v. 

Lanham, 76 F.3d 377, 1996 WL 37201 (4th Cir. 1996). In Knox, the 

Maryland Division of Correction issued a new directive giving inmates 

serving life sentences a higher security designation, which prevented 

these inmates from participating in work release. Plaintiff alleged 

that an unwritten policy of the parole board denied parole to any 

inmate who had not participated in work release. Based on the track 

record of the board, the court found a violation of the Ex Post Facto 

Clause . . . . If plaintiff can prove the link between furlough and parole 

in the same way that the plaintiff in Knox proved the relationship 

between work release and parole, he will have established an Ex Post 

Facto Clause violation.

Girouard, 2009 VT 66, ¶ 11, 186 Vt. at 158 (emphasis added). 

On remand, the trial court found that furlough was an important enough 

consideration for parole that the 2001 amendment had effectively prevented a 

positive parole decision. The amendment was ex post facto as to Girouard and the 

DOC was ordered to evaluate him for furlough under the prior statute.7 In re 

Girouard, 2014 VT 75, ¶ 4, 197 Vt. 162, 163.

Mr. Chandler has seized on the emphasized sentence above and has 

endeavored also to prove a “link” between furlough and parole. This case is not 

analogous to Girouard or the case to which the Girouard Court cited, Knox. In 

Girouard, the statutory amendment, a clear legislative act, was found to convert a 

 

7 The trial court’s ex post facto decision on remand was not reviewed on appeal.
14

sentence that was parole-eligible into one that was parole-ineligible because the law 

precluded Mr. Girouard from participating in furlough. The likelihood that the 

DOC actually would determine, in its discretion, that Mr. Girouard was appropriate 

for furlough, or programming that would lead to furlough, simply was not at issue 

and had nothing to do with the ex post facto violation eventually found. In effect, 

Mr. Girouard’s success in establishing the ex post facto violation in his case placed 

him in the same position that Mr. Chandler already is in, subject to the DOC’s 

discretion with regard to programming and furlough decisions, and otherwise 

eligible for parole. The “link” that Mr. Girouard established merely showed that the 

legislative act, in fact, had the outcome prohibited by the Ex Post Facto Clause: it 

increased his punishment by eliminating his opportunity for parole. Girouard does 

not stand for the proposition that any decision or circumstance that eventually 

diminishes the likelihood of a favorable parole decision amounts to an ex post facto 

violation. Here, even assuming there is a link between a favorable parole 

determination and furlough,

8 there is simply no law that prevents Mr. Chandler 

from participating in programming and furlough. 

Knox is to the same effect as Girouard. There, the Parole Commission 

inflexibly required all inmates to progress to a low security level and serve time on 

work release before it would make a positive parole recommendation necessary to 

the parole process. Knox, 895 F. Supp. at 754. The Commissioner of Corrections 

 

8 On remand, the Girouard trial court found an ex post facto violation because it 

determined that there was an adequate link between furlough and parole. That 

conclusion was not appealed. It is unclear whether the Parole Board’s preference 

for furlough actually operates in a nondiscretionary manner. In Knox, on the other 

hand, the Court clearly found that the “rules” were being applied in a completely 

nondiscretionary manner.
15

adopted a nondiscretionary rule preventing any inmate with a parole-eligible life 

sentence from progressing to the low security level that could permit work release. 

Id. at 753. The Court began its analysis with the question of whether the 

Commissioner’s and Parole Commission’s rules were “laws” subject to ex post facto 

scrutiny. See id. at 755–56. It found that they were because they were adopted 

pursuant to authority granted by the Legislature, were completely inflexible, and 

were not mere guides as to how existing discretion would be exercised. It then 

found the ex post facto violation. Operating together, those rules converted paroleeligible sentences into parole-ineligible sentences. Id. at 758 (“The effect of these 

changes is to foreclose lifers from ever being able to obtain parole.”).

Both Girouard and Knox are predicated on alterations to “laws” within the 

contemplation of the Ex Post Facto Clause that took away a substantial personal 

right—parole eligibility. The Ex Post Facto Clause protects “substantial personal 

rights against arbitrary and oppressive legislation.” Dobbert v. Florida, 432 U.S. 

282, 293 (1977) (quoting Gibson v. Mississippi, 162 U.S. 565, 590 (1896)). Neither 

case concerns purely discretionary decisions. While parole eligibility is a 

substantial right of Mr. Chandler’s as well, there is no law (or policy or rule in the 

nature of a law) that has taken away Mr. Chandler’s eligibility for parole. Rather, 

the DOC has simply exercised the discretion that it has always had in determining 

when Mr. Chandler will become suitable for programming, and it is that exercise of 

discretion to which Mr. Chandler objects. These are not the sorts of determinations 

that implicate Ex Post Facto Clause. See Foster v. Booker, 595 F.3d 353, 361–65 

(6th Cir. 2011) (distinguishing legislative enactments that increase punishment, 

which may show an ex post facto violation; from a parole board’s exercise of its 
16

unfettered discretion to offer parole in more limited circumstances, which does not); 

see also Shabazz v. Gabry, 123 F.3d 909, 916 (6th Cir. 1997) (noting that “internal 

policy directives and memoranda” that merely guide agency decision-making are 

not laws within the contemplation of the Clause); Prater, 802 F.2d at 954 (“[A] mere 

change in enforcement methods, priorities, or policies, written or unwritten—a 

change within the scope of the executive branch’s discretion in enforcing the laws 

passed by Congress—does not activate the prohibition against ex post facto laws.”).

In sum, Mr. Chandler has failed to come forward with any evidence that a 

change in the law has caused him to lose the opportunity for parole. A change in 

the manner by which the DOC exercises its discretion with regard to programming 

may well have diminished Mr. Chandler’s odds of a positive parole decision at this 

time. Even if that is so, however, it does not present a triable issue with regard to 

an Ex Post Facto Clause violation.

Order

For the foregoing reasons, Mr. Chandler’s motion for summary judgment is 

denied and the State’s motion is granted.

Electronically signed on December 24, 2015 at 01:47 PM pursuant to V.R.E.F. 

7(d).

________________________

Timothy B. Tomasi

Superior Court Judge