CASEY L. RUIZ APPELLANT
JOHN FELTS, CHAIRMAN, ARKANSAS PAROLE BOARD, APPELLEE
APPEAL FROM PULASKI COUNTY CIRCUIT COURT [NO. 60OT-50-2 ]
HONORABLE, CHRISTOPHER CHARLES PIAZZA, JUDGE
IN PART; REVERSED IN PART AND REMANDED.
L. Ruiz, pro se appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
Casey L. Ruiz, is an inmate incarcerated in the Arkansas
Department of Correction (ADC). Ruiz filed a petition in the
Pulaski County Circuit Court that sought judicial review of a
decision of the Arkansas Parole Board (Board) pursuant to the
Administrative Procedure Act, Arkansas Code Annotated
sections 25-15-212 - 219 (Repl. 2014). A petition to proceed
in forma pauperis was filed in connection with his petition
for judicial review. The circuit court denied Ruiz's in
forma pauperis petition pursuant to Rule 72 (2015) of the
Arkansas Rules of Civil Procedure on the basis that Ruiz had
not stated a colorable claim. For the reasons set forth
below, we affirm in part and reverse in part and remand.
examination of the allegations raised in the underlying cause
is necessary to determine Ruiz's entitlement to proceed
in forma pauperis. In his petition for judicial review, Ruiz
contended that the Board had denied his application for
parole and deprived him of liberty without due process. In
addition, Ruiz alleged that the parole board had
retroactively applied a parole statute in violation of the
ex-post-facto prohibition. In support of his ex-post-facto
claim, Ruiz made the following allegations: that he was
convicted of burglary in 2009; that the Board applied
Arkansas Code Annotated section 16-93-615, which was enacted
in 2011, in considering his parole eligibility and determined
that he was not entitled to parole and would not be eligible
for parole for an additional two years; and that the
application of the current parole statute increased the
length of his incarceration because under the former
statute-Arkansas Code Annotated section 16-93-1302 (Repl.
2006)-he was not classified as a felon convicted of a
targeted offense and would have been eligible for
of the Arkansas Rules of Civil Procedure states in pertinent
part that the circuit court may order that the petitioner be
allowed to prosecute the suit in forma pauperis if satisfied
from the facts alleged that the petitioner has a colorable
cause of action. Under this court's rules of civil
procedure, allegations in a pleading must state facts and not
mere conclusions in order to entitle the pleader to relief.
Ballard Group, Inc. v. BP Lubricants USA, Inc., 2014
Ark. 276, at 6, 436 S.W.3d 445, 449 (citing Ark. R. Civ. P.
8(a) (2013)). Therefore, a colorable cause of action is
established by the sufficiency of the non-conclusory facts
alleged in a petition but there is no requirement that a
petitioner provide evidentiary support for those fact
allegations in order to state a legitimate claim for relief.
A colorable cause of action is "a claim that is
legitimate and that may reasonably be asserted, given the
facts presented and the current law (or a reasonable and
logical extension or modification of current law)."
Boles v. Huckabee, 340 Ark. 410, 412, 12 S.W.3d 201,
202-03 (2000) (per curiam) (quoting Black's Law
Dictionary, 240 (7th ed.1999)).
administration of prisons has generally been held to be
beyond the province of the courts. Clinton v. Bonds,
306 Ark. 554, 557-58, 816 S.W.2d 169, 171-72 (1991). However,
an exception to the courts' reticence to entertain a
prisoner's administrative complaints occurs when the
petitioner asserts an infringement on constitutional rights.
Id. Thus, an inmate who asserts a credible
constitutional claim is entitled to review under the
Administrative Procedures Act, codified at Arkansas Code
Annotated sections 25-15-212 to -219 (Repl. 2014).
Ruiz alleged a constitutional violation of his right to due
process and contended that the parole board had violated the
ex-post-facto prohibition in the United States and Arkansas
Constitutions. Because Arkansas statutes have not created a
liberty interest in parole eligibility, Ruiz failed to state
a colorable claim based on the allegation that the denial of
his parole eligibility constituted a violation of his right
to due process. See Cridge v. Hobbs, 2014 Ark. 153,
at 2 (per curiam) (There is no constitutional right or
entitlement to parole that would invoke due-process
protection.). However, Ruiz stated sufficient non-conclusory
facts to assert a colorable claim for judicial review of an
alleged violation of the ex-post-facto prohibition. Ruiz
specifically alleged that his term of incarceration was
extended by two years through the retroactive application of
the current parole-eligibility statute rather than by the
application of the former statute which was in effect when he
committed the crime of burglary. Ruiz therefore made
sufficient fact allegations supporting a claim for relief
based on an alleged ex-post-facto violation. See Holloway
v. Beebe, 2013 Ark. 12, at 4 (per curiam) (holding that
petitioner failed to state sufficient facts that statute was
punitive and subject to ex-post-facto prohibition).
the United States and Arkansas Constitutions prohibit the
enactment of any law which imposes punishment on a person for
an act done that was not punishable at the time it was
committed or which increases or imposes additional punishment
than what was prescribed for that act when it was committed.
U.S. Const. Art I, §§ 9 and 10; Ark. Const. Art. 2,
§ 17. There are two critical elements that must be
present for a criminal law to be ex post facto: (1) it must
be retrospective, that is, it must apply to events occurring
before its enactment; (2) it must disadvantage the offender
affected by it. Pitts v. Hobbs, 2013 Ark. 457, at 4
(per curiam) (citing Brown v. Lockhart, 288 Ark.
483, 707 S.W.2d 304 (1986)). Furthermore, we have explained
that the change in the law must have altered substantial
personal rights, not merely modes of procedure that do not
affect matters of substance. Bowen v. State, 322
Ark. 483, 499, 911 S.W.2d 555, 562 (1995).
court has applied the ex-post-facto prohibition to
parole-eligibility statutes and has held that it is
unconstitutional to apply the current parole-eligibility act
retrospectively to a defendant's conviction, instead of
considering him for parole under the parole-eligibility
statute that was in effect at the time of the commission of
the crime. Bosnick v. Lockhart, 283 Ark. 206,
207-08, 672 S.W.2d 52, 53 (1984). In so doing, we have
explained that a parole statute less favorable to one who had
been sentenced prior to its passage than the parole law
existing at the time of his sentencing would be
unconstitutional as an ex-post- facto law, in violation of
Art. 2 § 17 of the Arkansas Constitution. Id.
The presence or absence of an affirmative, enforceable right
is not relevant to the ex-post-facto prohibition, which
forbids the imposition of punishment more severe than the
punishment assigned by law when the act to be punished
occurred. Bosnick, 283 Ark. at 207-08, 672 S.W.2d at
53. 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 committed. Id. It is the effect, not the
form, of the law that determines whether it is ex post facto.
Id. at 209, 672 S.W.2d at 53; see also Kellar v.
Fayetteville Police Department, 339 Ark. 274, 280, 5
S.W.3d 402, 405 (1999) (The Ex Post Facto Clause was
applicable to an administrative statute if its retroactive
application constituted punishment.).
the circuit court summarily denied Ruiz's petition to
proceed in forma pauperis, a record of the entire proceedings
was not lodged in the circuit court pursuant to Arkansas Code
Annotated section 25-15-212(d)(1), which requires the parole
board to transmit to the reviewing court the original or a
certified copy of the entire record under review with the
initial cost of the record to be borne by the
agency. The record that is before this court
includes two documents generated by the Board reflecting that
a hearing was held on November 5, 2015, that parole was
denied based on "previous release history, "
that parole had been denied for a period of two years. The
record does not contain the original judgment of conviction
reflecting the date the crime had been committed, the nature
and degree of the burglary offense for which Ruiz was
convicted, or the sentence that had been imposed. Nor does
the record contain documentation of Ruiz's previous
release history and the circumstances under which Ruiz had
been transferred back to the ADC. Ruiz's claim that the
Board violated the ex-post-facto prohibition cannot be
analyzed under prevailing constitutional standards by
reference to the deficient record that is before this
court. As stated above, the determination of a
colorable claim is made from an evaluation of the