SUPREME COURT OF THE UNITED STATES
CLARK ALBERT BAILEY v. ARTHUR E. NOOT et al.
on petition for writ of certiorari to the united
states court of appeals for the eighth circuit
No. 91-7002.  Decided March 23, 1992



  The petition for a writ of certiorari is denied.
  Justice White, with whom Justice Blackmun joins,
dissenting.
  The issue in this case is whether the ex post facto clause
of the Constitution, Art. I, 9, cl. 3, is violated when a
newly-modified state parole regulation is applied to a
prisoner who began serving his sentence prior to the rule
change.
  Petitioner pled guilty to the 1976 kidnap, sexual abuse,
and murder of a young girl; he was sentenced to three
concurrent jail terms, the longest of which was 40 years.  In
1981, the Minnesota Corrections Board determined that,
because of the severity of petitioner's crimes, the target
date for his release should be the expiration of his sentence.
In a letter to petitioner, the Board stated that it would ``not
consider any form of release prior to the expiration of your
sentence unless psychiatric, psychological, and correctional
staff can certify that you are no longer a danger to the
public in general and/or young females specifically.''
  A year later, the Minnesota legislature abolished the
corrections board and transferred parole responsibility to
the commissioner of corrections.  Minn. Stat. 243.05.  The
commissioner enacted new parole regulations, including a
rule that ``[a]ll release dates established by the Minnesota
corrections board will be left in full force and effect by the
commissioner.''  3 Minn. R. 2940.1500, subp. 2.  Petitioner
was informed that this new regulation effectively froze his
release date.
  Petitioner filed this civil rights action under 42 U. S. C.
 1983, asserting that application of the new parole regula-
tion to his case violated the ex post facto clause.  The
United States District Court for the District of Minnesota
entered summary judgment for respondents.  A divided
panel of the Court of Appeals for the Eighth Circuit
affirmed, holding that ``the Minnesota parole regulations
are not `laws' for ex post facto purposes . . . .''  Bailey v.
Gardebring, 940 F. 2d 1150, 1157 (CA8 1991).  The Court,
again divided, denied rehearing en banc.
  The judgment of the Court of Appeals conflicts with
decisions of other circuit courts, which have held that
application of changed state parole regulations may pose ex
post facto problems.  See, e.g., Akins v. Snow, 922 F. 2d
1558 (CA11), cert. denied, 111 S. Ct. 2915 (1991); Royster v.
Fauver, 775 F. 2d 527 (CA3 1985).  Because the issue is
likely to arise frequently, I would grant certiorari to resolve
the disagreement.
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