Willie C. Simpson v. Scott K. Walker

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 15, 2013*
Decided August 16, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐1720
WILLIE C. SIMPSON,
Plaintiff‐Appellant,
v.
SCOTT K. WALKER, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 11‐cv‐838‐bbc
Barbara B. Crabb,
Judge.
O R D E R
Willie Simpson, a Wisconsin prisoner, appeals the grant of summary judgment in
favor of the defendant state officials in this suit under 42 U.S.C. § 1983. He argues that
they violated the Ex Post Facto Clause by retroactively applying Wisconsin’s Truth‐in‐
Sentencing law to his three sexual assault convictions. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. See FED . R. APP. P. 34(a)(2)(C).

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No. 13‐1720 Page 2
Simpson is currently serving 65 years in prison for sexually assaulting children.
He was first convicted in 1997 of second‐degree sexual assault of a 13‐year old. See WIS.
S TAT. § 948.02(2) (1995–96); State ex rel. Simpson v. Schwarz, 640 N.W.2d 527, 530 (Wis.
App. Ct. 2001). The state court stayed a 15‐year prison sentence and placed Simpson on
probation, which was revoked in 1999 after he molested a 6‐year old. Simpson, 640
N.W.2d at 530–31. He was then convicted on two charges of first‐degree sexual assault,
for which the court imposed two consecutive 25‐year sentences. See WIS. STAT.
§ 948.02(1) (1997–98); State v. Simpson, 646 N.W.2d 855 (Wis. App. Ct. April 16, 2002)
(unpublished).
Meanwhile in 1997 Wisconsin adopted a “Truth‐in‐Sentencing” law to ensure
that actual time served more closely matched the prison sentences given. See 1997 WIS.
A CT 283; United States v. Buford, 201 F.3d 937, 939–40 (7th Cir. 2000). Under the prior
law, known to everyone in the Wisconsin criminal justice system as “the New Law,”
inmates were eligible for parole after serving a quarter of their sentences, and even
those who had committed serious felonies had presumptive parole release dates set at
two‐thirds of their sentences. See WIS. STAT. §§ 302.11(1), 304.06(b); State ex rel. Gendrich
v. Litscher, 632 N.W.2d 878, 882 (Wis. App. Ct. 2001). The new Truth‐in‐Sentencing law
eliminated parole and replaced it with court‐ordered extended supervision. See Morales
v. Boatwright, 580 F.3d 653, 655 (7th Cir. 2009); State v. Johnson, 730 N.W.2d 661, 666 (Wis.
App. Ct. 2007). The Truth‐in‐Sentencing law went into effect on December 31, 1999. See
W IS. STAT. § 973.01(1).
Simpson sued the Governor of Wisconsin and several Department of Corrections
employees under 42 U.S.C. § 1983, alleging that they had retroactively stripped him of
his parole eligibility by applying the Truth‐in‐Sentencing law to his convictions. He
pointed to notations on his recent inmate classification reports saying that he was
“sentenced under New Law,” which Simpson took to be a reference to Truth‐in‐
Sentencing. The defendants responded with an affidavit from a DOC official
responsible for inmate classification who explained that “New Law” was the colloquial
name of the parole scheme that preceded Truth‐in‐Sentencing.
After determining that Simpson could sue under 42 U.S.C. § 1983, even though
his goal was release on parole, see Wilkinson v. Dotson, 544 U.S. 74, 82 (2005), the district
court concluded that Simpson had offered no evidence to suggest that the Truth‐in‐
Sentencing law had been applied retroactively to his convictions. The court explained
that Simpson’s classification reports showed that he retained a parole‐eligibility date of
August 2015 (which corresponds to a quarter of his 65‐year sentence), establishing that

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No. 13‐1720 Page 3
the DOC had correctly applied the parole regime in effect at the time of his crimes.
See WIS. STAT. § 304.06(b). The court accordingly granted summary judgment for the
defendants.
On appeal Simpson challenges the district court’s conclusion that he failed to
offer any evidence that his eligibility for parole had been changed based on Truth‐in‐
Sentencing. Pointing to the notations on his classification sheets, he maintains that the
ambiguity of the phrase “sentenced under New Law” creates a dispute of material fact.
And in his motion to supplement his reply brief, he notes that “New Law” is not an
official title.
The district court correctly concluded, however, that the undisputed facts show
that the defendants did not apply the Truth‐in‐Sentencing law to his convictions. As the
court explained, the classification forms establish that Simpson’s parole‐eligibility date
was computed based on the parole regime that preceded Truth‐in‐Sentencing. He will
become eligible for parole in August 2015 after serving one quarter of his 65‐year
sentence. See WIS. STAT. § 304.06(b). If the defendants were applying the Truth‐in‐
Sentencing law to Simpson, he would not be eligible for parole at all. See Morales, 580
F.3d at 655. Regardless of the names used, the DOC applied the parole law in effect at
the time Simpson committed his crimes, so there has been no ex post facto violation.
See Grennier v. Frank, 453 F.3d 442, 444–45 (7th Cir. 2006).
AFFIRMED .

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