Doe v. Bredesen

GRIFFIN, J., delivered the opinion of the court, in which VAN TATENHOVE, D.J., joined. KEITH, J. (pp. 1008-12), delivered a separate opinion concurring in part and dissenting in part.

*1000OPINION

Plaintiff-appellant John Doe pleaded guilty in the Criminal Court of Knox County, Tennessee, to attempted aggravated kidnapping in violation of Tenn.Code Ann. §§ 39-12-101 and 31-13-304, and two counts of sexual battery by an authority figure in violation of Tenn.Code Ann. § SO-IS^?. After Doe was convicted and sentenced, the Tennessee Legislature enacted the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 (“the Registration Act”), Tenn.Code Ann. § 40-39-201 et seq., which became effective on August 1, 2004. The Registration Act reclassified Doe as a violent sexual offender, see Tenn. Code Ann. § 40 — 39—202(24)(j), and required him to comply with the requirements of the Tennessee Bureau of Investigation (“TBI”) Sexual Offender Registry for the rest of his life, see Tenn.Code Ann. § 40-39-207(g)(1)(B). The Tennessee Legislature also enacted the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (“the Monitoring Act”), Tenn.Code Ann. § 40-39-301 et seq., which became effective July 1, 2004.1 The Monitoring Act authorized the Tennessee Board of Probation and Parole (“the board”) to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation. Tenn.Code Ann. § 40-39-303. In August 2005, Doe’s probation officer notified him that he would be required to wear a global positioning (“GPS”) device at all times beginning in September 2005.

Doe brought suit in the United States District Court for the Eastern District of Tennessee (“the district court”) alleging that because he was convicted before the effective date of the Registration and Monitoring Acts, the application of the Acts’ requirements to him violated the Ex Post Facto Clauses of the United States Constitution (Article I, Section 3, Clause 3) and the Tennessee Constitution, as well as his right to procedural due process and his right against self-incrimination under the Fifth Amendment of the U.S. Constitution, and his right to privacy under both constitutions. The government moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief could be granted, and Doe filed an opposition brief that supported only the Ex Post Facto claims. Doe’s opposition brief also sought to raise a claim that was not in his complaint — that application of the Registration and Monitoring Acts to him violated his plea agreement.

The district court ruled that Doe’s ex post facto claims were meritless, the government had not breached the plea agreement, and Doe had abandoned his other claims. The district court dismissed the complaint, and Doe timely appealed. For the reasons that follow, we affirm. In doing so, we hold, inter alia, that the Registration Act (Tenn.Code Ann. § 40-39-201 et seq.) and the Monitoring Act (Tenn.Code Ann. 40-39-301 et seq.) do not violate the Ex Post Facto Clause of the United States Constitution.

I.

Between January 1, 1995, and July 1, 2004, Doe pleaded guilty in the Criminal Court of Knox County, Tennessee, to attempted aggravated kidnapping in violation of Tenn.Code Ann. §§ 39-12-101 and 31-13-304, and two counts of sexual bat*1001tery by an authority figure in violation of Tenn.Code Ann. § 39-13-527. At the time Doe was convicted, each of his sexual battery offenses was termed by Tennessee law as a “sexual offense” and he was classified as a “sexual offender.” Under Tennessee law, as it existed at the time of his convictions, Doe had the right, ten years after the termination of his probation, to petition the circuit court to reheve him of the continued filing of registration and monitoring forms and to expunge all data stored in the central record system about him.

Since being placed on probation, Doe met the sexual offender registration and monitoring requirements that were imposed on him by former Tenn.Code Ann. § 40-39-103, which has now been repealed.

The Registration Act, Tenn.Code Ann. § 40-39-201 et seq., became effective on August 1, 2004, and repealed the prior Sexual Offender Act, which had been codified at Tenn.Code Ann. §§ 40-39-101 through 40-39-111.2 Among other provisions, the Registration Act repealed and replaced the sexual offender classification system which had been found at former Tenn.Code Ann. § 40-39-301(1) and (3).

Under the new Tenn.Code Ann. § 40-39-202(23) and (24), Doe’s criminal offense was retroactively reclassified as a “violent sexual offense,” and he was reclassified retroactively as a “violent sexual offender.” See Tenn.Code Ann. § 40-39-301(3) (“ ‘Violent sexual offender’ also includes any person who has been released on probation or parole following any conviction for a sexual offense, as defined in subdivision (2), to the extent that the person continues to be subject to active supervision by the board of probation and parole as defined in law.”); Tenn.Code Ann. § 40-39-301(2)(A)(xi) (defining “sexual offense” to include sexual battery by an authority figure in violation of Tenn.Code Ann. § 39-13-527).

Additionally, revised Tenn.Code Ann. § 40-39-207(f)(l)(B) requires a violent sexual offender to comply with the registration, verification, and tracking requirements of the TBI Sexual Offender Registry (“SOR”) for the rest of his life.3 Further, the Monitoring Act requires the TBI to implement continuous satellite-based monitoring of violent sexual offenders. Tenn.Code Ann. §§ 40-39-302(b)(1) and 303. The Monitoring Act specifically authorizes the TBI to use a global positioning system (“GPS”) with either passive (once-a-day) reporting of the offender’s location or active (near-real-time) reporting of the offender’s prescriptive or proscriptive location and schedule requirements, see Tenn.Code Ann. § 40-39-302(b)(1)(A and B), and it authorizes the board of probation and parole to charge the offender a fee to recoup the cost of the monitoring program. Tenn.Code Ann. § 40-39-305. The Monitoring Act authorizes the board of probation and parole to exercise discretion as to which parolees or probationers will be subject to these various requirements. Tenn.Code Ann. § 40-39-303(a).

*1002An offender commits a Class E felony if he knowingly fails to comply with any of the Acts’ requirements, such as filing a timely and accurate registration form with the TBI, signing the form, paying annual administrative costs if able to do so, and timely disclosing required information to a designated law enforcement agency. Tenn.Code Ann. § 40-39-208(a) and (b). Also, it is a separate crime to tamper with or remove the GPS tracking device. Tenn.Code ANN. § 40-39-304.4

Doe alleges that the GPS tracking device is not realistically concealable, and he contends that it has a marked effect on his lifestyle and freedom of movement and action. In Doe’s words, he

is required to carry with him at all times when not at his residence a relatively large box which contains the electronics necessary for the monitoring to take place. This box must be worn on one’s person outside any coat or other outer garment and therefore is obvious to any onlooker. Upon going into a building, [he] must wait several minutes before entering, presumably to allow the device to reset. When inside a building, [he] must go outside at least once every hour so that monitoring can take place. The device is not waterproof, and [he] is not allowed to swim or participate in any other water activity. Baths at home are impossible.

Furthermore, the device has caused [him] added stress and many inconveniences as it does not always work properly. While on vacation, for which [he] obtained prior permission from his probation officer and a judge, [he] received at least six telephone messages from someone at the probation office threatening him with immediate arrest if he did not return a telephone call to the probation office at once. This entire event was because the Global Positioning System monitoring system could not locate him. At other times the [GPS] monitoring system either does not receive or transmit information correctly. When this happens [he] has spent up to an hour on the telephone with someone in the probation office to correct the problem. On one occasion [he] had to stand in the rain, for over thirty minutes, for all his neighbors to see, while the probation office attempted to fix the problem. Appellant is required to purchase the device at a cost of $50.00.

Doe filed a complaint and application for a temporary restraining order (“TRO”) and preliminary injunction (“PI”) in March 2006, and the government filed a brief in opposition to the TRO and PI and a motion to dismiss the complaint in April 2006. The district court granted the government’s motion to dismiss the complaint, and Doe timely appealed.

II.

Because the district court dismissed Doe’s complaint on legal grounds, we review its decision de novo. United States v. Bowman 173 F.3d 595, 597 (6th Cir.1999) (“This Court reviews a denial of a motion to dismiss de novo, as it is a purely legal question.”) (citation omitted). Specifically, the application of the Ex Post Facto Clause is a legal question subject to de novo review. United States v. Richardson, 437 F.3d 550, 555 (6th Cir.2006).5

*1003On appeal, the district court’s interpretation of state law (in this case, the Tennessee Constitution) is likewise governed by the de novo standard. Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d 655, 660 (6th Cir.2005) (citation omitted).

III.

When considering a motion to dismiss for failure to state a claim, we must construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle him to relief. First American Title Co. v. DeVaugh, 480 F.3d 438, 443-44 (6th Cir.2007) (citing Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “ ‘Although this is a liberal pleading standard, it requires more than the bare assertion of legal conclusions. Rather, the complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.’ ” Id. at 444 (quoting S.E. Texas Inns, Inc. v. Prime Hospitality Corp., 462 F.3d 666, 671-72 (6th Cir.2006).)

IV.

The United States Constitution prohibits states from imposing ex post facto laws. U.S. Const. art. I, sec. 10, cl. 1. The Ex Post Facto Clause is implicated where a law punishes retrospectively: “ ‘a law is retrospective if it changes the legal consequences of acts committed before its effective date.’ ” United States v. Davis, 397 F.3d 340, 347 (6th Cir.2005) (quoting Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)). “ ‘[T]he focus of the ex post facto inquiry,’ ” however, “ ‘is not whether a legislative change produces some ambiguous sort of ‘disadvantage’ ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable.’ ” Dyer v. Bowlen, 465 F.3d 280, 289 (6th Cir.2006) (quoting Calif. Dept. of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)).

When evaluating an ex post facto claim, our first task is to “ascertain whether the legislature meant to establish ‘civil’ proceedings.” Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).) If the intent of the legislature was to impose punishment, that ends the inquiry. If, however, “ ‘the intention was to enact a regulatory scheme that is civil and nonpunitive, we further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Hendricks, 521 U.S. at 361, 117 S.Ct. 2072 (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Because we “ordinarily defer to the legislature’s stated intent, ... only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,....” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (internal citations and quotations omitted).

“Whether a statutory scheme is civil or criminal ‘is first of all a question of statutory construction.’ ” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072) (other citation omitted). We consider the statute’s text and its structure to determine the legislative objective. Smith, 538 U.S. at 92-93, 123 S.Ct. 1140 (citing Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). We first ask whether the Tennessee Legislature, in passing the Acts, “indicated either expressly or impliedly a preference for one label or the *1004other,” i.e., civil or criminal. Smith, 538 U.S. at 93, 123 S.Ct. 1140 (citing Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). Regarding the Registration Act, the Tennessee Legislature expressed its regulatory objective in the text of the statute itself:

To protect the safety and general welfare of the people of this state, it is necessary to provide for continued registration of offenders and for the public release of specified information regarding offenders. This policy of authorizing the release of necessary and relevant information about offenders to members of the general public is a means of assuring public protection and shall not be construed as punitive....

The general assembly also declares ... that in making information about certain offenders available to the public, the general assembly does not intend that the information be used to inflict retribution or additional punishment on any such offenders.

Tenn.Code Ann. §§ 40—39—201(b)(6) and (8). With respect to the Monitoring Act, the Tennessee Legislature stated its intent to “utilize the latest technological solutions to monitor and track serious criminal offenders and violent sex offenders.... ” 2004 Pub. Acts, Ch. 889, § 2. The legislature set forth statistics with regard to the abnormally high recidivism rate among sex offenders and stated its findings that intensive supervision is “a crucial element to both the rehabilitation of the convict and the safety of the surrounding community.” Id. at § 3. The Tennessee Legislature added that the electronic monitoring would enable law enforcement to geographically link offenders with reported crimes, but also to possibly exclude released offenders from ongoing investigations. Id. In light of this clear declaration of legislative intent, the district court correctly found that the Tennessee General Assembly intended to implement a civil regulatory scheme, not a punitive scheme.

Indeed, as the United States Supreme Court has repeatedly held, the imposition of restrictive measures on sex offenders adjudged to be potentially dangerous is “a legitimate nonpunitive governmental objective....” Smith, 538 U.S. at 93, 123 S.Ct. 1140 (quoting Hendricks, 521 U.S. at 363, 117 S.Ct. 2072) (emphasis added). Here, as in Smith (Alaska’s requirement that released sex offenders register and submit quarterly verifications) and Hendricks (post-incarceration confinement of sex offenders), nothing on the face of the statutes suggest that the legislature sought to create anything other than a civil scheme designed to protect the public from harm. Smith, 538 U.S. at 93, 123 S.Ct. 1140 (citing Hendricks, 521 U.S. at 361, 117 S.Ct. 2072). Accordingly, we agree with the district court that the Tennessee Legislature’s purpose in enacting the challenged provisions of the Acts was to create a civil, nonpunitive regime.

Notwithstanding our ascertainment of legislative intent, we must still analyze the practical effect of the challenged provisions of the Acts. The Supreme Court directs us to use these factors in assessing the provisions’ actual effect on sex offenders such as Doe:

whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with regard to this purpose.

Smith, 538 U.S. at 97, 123 S.Ct. 1140 (discussing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). Although these factors are “most relevant to our analysis,” *1005they are not necessarily exhaustive or dis-positive. Id

The Acts’ registration, reporting, and surveillance components are not of a type that we have traditionally considered as a punishment, and the district court further correctly found that they do not constitute an affirmative disability or restraint in light of the legislature’s intent. The Registration and Monitoring Acts do not increase the length of incarceration for covered sex offenders, nor do they prevent them from changing jobs or residences or traveling to the extent otherwise permitted by their conditions of parole or probation. Perhaps most significantly, the Supreme Court held recently, in sustaining the Alaska Sex Offender Registration Act against an ex post facto challenge, that lifetime registration and monitoring of sexual offenders is “less harsh” than other sanctions that the Court has historically considered non-punitive, such as revocation of a medical license, preclusion from work as a banker, and preclusion from work as a union official. See Smith, 538 U.S. at 100, 123 S.Ct. 1140 (collecting cases).

The dissent characterizes the wearing of the GPS monitoring system as “a catalyst for public ridicule” akin to traditional forms of community shaming or humiliation. We disagree. The device that Doe must wear is relatively unobtrusive, measuring only 6 inches by 3.25 inches by 1.75 inches and weighing less than a pound. In its size, shape, and placement (hooked to a belt), it appears very similar to a walkie-talkie or other nondescript electronic device. Furthermore, we have every reason to believe that the dimensions of the system, while not presently conspicuous, will only become smaller and less cumbersome as technology progresses. We similarly cannot agree that the device’s appearance would suggest to the casual observer that the wearer is a criminal, let alone a sex offender. The monitoring system could easily be viewed as a two-way communication device, a personal organizer, a medical apparatus, or as a monitoring system for employees entrusted with company property, such as delivery drivers or couriers. However, even assuming the public would recognize the device as a criminal monitor, there is no evidence to suggest an observer would understand the wearer to be a sex offender. These devices can be utilized in a variety of contexts, such as pretrial monitoring and work release, and are, in fact, advertised for use in such situations. Indeed, the dissent can only point to a single incident wherein a member of the public recognized the device as a monitor, and, even then, there was no evidence to suggest that the observer knew the device to be one that monitored sex offenders, as opposed to criminals generally.

Under the next Mendozcu-Martinez factor, the district court correctly noted that, although the Acts may have some deterrent effects and deterrence is one purpose of punishment, that does not render the Acts punitive for purposes of the Ex Post Facto Clause. As we explained when we upheld an earlier Tennessee sex offender registration act, “ ‘[t]o hold that the mere presence of a deterrent purpose renders ... sanctions ‘criminal’ ... would severely undermine the government’s ability to engage in effective regulation_’” Cuts-hall v. Sundquist, 193 F.3d 466, 475-76 (6th Cir.1999) (quoting Hudson, 522 U.S. at 105, 118 S.Ct. 488). Accord Hatton v. Bonner, 356 F.3d 955, 965 (9th Cir.2004) (rejecting ex post facto challenge to California’s sex offender registration act and stating that “[i]t is possible that sex offender registration statutes deter persons who would otherwise commit a crime that would require them to register as a sex offender. Nonetheless, this observation does not negate the overall remedial and regulatory nature of [the act]. ‘Although registration arguably has a deterrent effect ... deterrence can serve both criminal and civil goals.’ ”) (quoting Russell v. Gre-*1006goire, 124 F.3d 1079 (9th Cir.1997) (rejecting ex post facto challenge to Washington state sex offender registration statute)).6

The district court also analyzed the next Mmdoza-Martinez factor correctly: whether the Acts have a rational connection to a nonpunitive purpose. In view of United States Department of Justice statistics cited in the Registration Act’s preamble, the accuracy and relevance of which have not been contested by Doe, the Tennessee General Assembly could rationally conclude that sex offenders present an unusually high risk of recidivism, and that stringent registration, reporting, and electronic surveillance requirements can reduce that risk and .thereby protect the public without further “punishing” the offenders. Where there is such a rational connection to a nonpunitive purpose, it is not for the courts to second-guess the state legislature’s policy decision as to which measures best effectuate that purpose. Accord Doe v. Miller, 405 F.3d 700 (8th Cir.) (rejecting ex post facto and other constitutional challenges to Iowa statute that prohibited people who had been convicted of a sex offense against a minor from living within 2,000 feet of a school or child-care facility and stating “the requirement of a ‘rational connection’ is not demanding: [a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.”) (quoting Smith, 538 U.S. at 103, 123 S.Ct. 1140), cert. denied, 546 U.S. 1034, 126 S.Ct. 757, 163 L.Ed.2d 574 (2005).

The district court also correctly analyzed the next Mendoza-Martinez factor: whether the Acts are excessive in relation to their regulatory purpose. The Supreme Court cautions that this excessiveness inquiry “is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” Smith, 538 U.S. at 102, 123 S.Ct. 1140. Doe provides no basis for us to conclude that the Acts’ requirements are excessive in relation to its legitimate nonpunitive purpose of protecting the public from the undisputed high risk of recidivism. Cf. Bush v. Whaley, No. 2:06cv292, 2006 WL 2577819, at *6 (M.D.Ala. Sept.6, 2006) (unpublished) (holding that the Alabama Community Notification Act, which required sex offenders to register with the police, required police to notify residents when an offender moves into their neighborhood, and restricts where and with whom an offender may work, was not excessive in relation to its nonpunitive objective merely because its duration was lifelong and it placed no limit on the number of persons who could access offender information on the Internet); Doe v. Baker, No. 1:05cv265, 2006 WL 905368, at *5 (N.D.Ga. Apr.5, 2006) (unpublished) (rejecting ex post facto challenge to Georgia statute that prohibited sex offenders covered by registration act from living within 1,000 feet of any child-care facility, school, or area where minors congregate; holding that statute did not become excessive in relation to its nonpunitive objective merely because construction of a school in plain*1007tiff-offender’s neighborhood forced him to move from his residence of sixteen years in order to comply with the statute).

The dissent argues the Monitoring Act is unreasonable and excessive because it cannot “prevent offenders, like Doe, from ■committing a new crime.” This supposition is faulty for two reasons. First, as even the dissent itself recognizes, the monitoring system has a deterrent effect on would-be re-offenders. Second, the ability to constantly monitor an offender’s location allows law enforcement to ensure that the offender does not enter a school zone, playground, or similar prohibited locale. In any event, our role is not to invalidate the program if the Tennessee Legislature has not struck the perfect balance between the regulatory purpose of the program and its burdens on Tennessee citizens, but rather to determine whether the means chosen are reasonable. Smith, 538 U.S. at 105, 123 S.Ct. 1140. We conclude that they are.

The district court also did not err in its conclusion that the last two Mendoza-Martinez factors — -whether the conduct to which the Acts apply was already a crime, and whether the Acts came into play only upon a finding of scienter — were not particularly germane and did not alter the conclusion that the effects of the Registration Act and Monitoring Act are not so punitive as to negate the State’s clearly expressed intent to create a civil regulatory scheme.

Finally, we note that our sister circuits have likewise consistently and repeatedly rejected ex post facto challenges to state statutes that retroactively require sex offenders convicted before their effective date to comply with similar registration, surveillance, or reporting requirements. See Weems v. Little Rock Police Dep’t, 453 F.3d 1010 (8th Cir.2006), cert. denied sub nom. Weems v. Johnson, — U.S. -, 127 S.Ct. 2128, 167 L.Ed.2d 862 (2007); Johnson v. Terhune, 184 Fed.Appx. 622 (9th Cir.2006); Steward v. Folz, 190 Fed.Appx. 476 (7th Cir.2006); Kirschenhunter v. Sheriffs Office, Beauregard Parish, 165 Fed.Appx. 362, 363 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 255, 166 L.Ed.2d 199 (2006); Szczygiel v. Madelen, 116 Fed.Appx. 224 (10th Cir.2004); Herrera v. Williams, 99 Fed.Appx. 188 (10th Cir.2004) (application of New Mexico Sex Offender Registration Act to person who was convicted before its effective date did not violate the Ex Post Facto Clause); Moore v. Avoyelles Corr. Ctr., 253 F.3d 870 (5th Cir.2001); Burr v. Snider, 234 F.3d 1052 (8th Cir.2000) (North Dakota sex offender registration statute); Femedeer v. Haun, 227 F.3d 1244 (10th Cir.2000) (Utah sex offender registration and notification statute); Roe v. Office of Adult Prob., 125 F.3d 47 (2d Cir.1997) (Connecticut statute); Doe v. Pataki, 120 F.3d 1263 (2d Cir.1997) (New York Sex Offender Registration Act).7

Y.

Doe’s complaint further alleged that application of the Acts to him violated his fundamental federal constitutional rights to privacy and substantive due process, procedural due process, and his privilege against self-incrimination, as well as his right to privacy under the Tennessee Constitution’s article I, sections 3, 7, 8, 19 and 27. The district court correctly noted, however, that Doe abandoned those claims by failing to raise them in his brief opposing the government’s motion to dismiss the complaint. Accordingly, we need not consider those claims. See Huge v. General Motors Corp., 62 Fed.Appx. 77, 79 (6th *1008Cir.2003) (“Huge failed to argue that GMC discriminated against her because of a learning disability to the district court, and therefore we need not consider that claim.”); cf. Meredith v. Allen Cty. War Memorial Hosp. Comm’n, 397 F.2d 33, 34 n. 2 (6th Cir.1968) (“Plaintiff also alleged in his complaint that jurisdiction existed under the antitrust laws, but this allegation was not advanced either in opposition [to] defendants’ motion to dismiss or on appeal, and we therefore assume that the claim of antitrust violation has been abandoned”).

VI.

Finally, Doe contended that the application of the Acts violated the Tennessee Constitution’s ex post facto clause (Tenn. Const. art. I, sec.ll). When a party raises a challenge under both the U.S. Constitution’s Ex Post Facto Clause and the Tennessee Constitution’s ex post facto clause, the Tennessee appellate courts conduct a single analysis for both claims, and they follow U.S. Supreme Court precedent when interpreting both the federal and state clauses. See, e.g., King v. Tenn. Bd. of Paroles, No. M2005-2821-COA-R3-CV, 2007 WL 1555815 (Tenn.Ct.App. May 29, 2007); Powers v. Tenn. Bd. of Probation & Paroles, No. M2005-1529-COA-R3-CV, 2007 WL 1515141, at *7 (Tenn.Ct.App. May 23, 2007); In re Rahim, No. M2006-2216-COA-R3-CV, 2007 WL 1308322, at *2 (Tenn.Ct.App. May 3, 2007) (“The ex post facto prohibition found in both the Tennessee Constitution and the United States Constitution is aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ”) (quoting Calif. Dep’t of Com. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)).

Accordingly, because Doe’s claim under the federal Ex Post Facto Clause fails, his claim under the Tennessee ex post facto clause fails as well.

VII.

For the foregoing reasons, we affirm the dismissal of Doe’s complaint.