Jerrold S. Flemming v. Oregon Board of Parole

Jerrold S. Flemming, an Oregon state prisoner, appeals the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254 . Flemming contends that the district court erred in concluding that the Oregon Board of Parole (“Board”) did not violate the Ex Post Facto Clause, U.S. Const. art. I, § 10, cl. 1, when it applied a regulation retroactively in calculating Flemming’s parole release date. We agree and therefore reverse.

I.

In 1981, Flemming was convicted of multiple sex offenses under Oregon state law. At the time of his crimes, a state parole regulation provided that the Board could reduce certain sentences, but that “reductions shall be limited to a maximum of 20% of the prison term under review.” Or.Admin.R. § 255-40-025(2) (Apr.1981). Ordinarily, the Board reviews sentences “after the prisoner has served five years of his prison term and every three years thereafter.” Id. § 255-40-005(1) (setting forth schedule for “periodic reviews”); see id. § 255-40-025(2)(a) (“[Reductions shall customarily be considered at periodic reviews under rule 255-10-005”).

The phrase “20% of the prison term under review,” id. § 255^40-025(2), refers to twenty percent of the entire…