Carmen Rivera-Feliciano, et al v. Anibal Acevedo-Vila, et al

Filing 920100610

Opinion

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var WPFootnote1 = 'Of the Tenth Circuit, sitting by designation.\
'

var WPFootnote2 = 'The appellants are, or were, executive officials within the\
Puerto Rico government. For the sake of simplicity, we refer to\
them collectively as "Puerto Rico" or "the Commonwealth." We do\
not at this time take up the case-captioning matter of whether any\
of the successors in office to any of these parties should be\
substituted for the named defendants/respondents. \
'

var WPFootnote3 = 'Law 49 did contain a grandfather clause that preserved the\
eligibility of all those already participating in the program as of\
the date of the law\'s passage. That clause did not, however,\
extend to those who were not participating in the program prior to\
that date. Because each of the appellees in this case committed\
the crime of murder before the effective date of Law 49 and began\
participation in the ESP after the effective date of Law 49, the\
grandfather clause is irrelevant to them.\
'

var WPFootnote4 = 'Puerto Rico is the functional equivalent of a state for all\
purposes relevant to this case. Thus, as we have done elsewhere,\
we will sometimes refer to "state courts" or issues of "state law,"\
notwithstanding Puerto Rico\'s unique commonwealth status. See,\
e.g., R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 183 n.2 (1st\
Cir. 2006).\
'

var WPFootnote5 = 'Because two of these petitioners have since passed away, only\
twelve of the original fourteen remain.\
'

var WPFootnote6 = 'We subsequently refer to both sets collectively as "the\
appellees" except where the distinction between them is relevant to\
the discussion.\
'

var WPFootnote7 = 'In our previous foray into this litigation, we noted the\
difference but declined to address the issue further. See Rivera-Feliciano, 438 F.3d at 55 n.5.\
'

var WPFootnote8 = 'In a recent unpublished decision, a panel of the Tenth\
Circuit questioned whether Graham\'s "quantum of custody" inquiry\
had survived the Supreme Court\'s decision in Sandin v. Conner, 515\
U.S. 472 (1995), which held that the difference between the general\
prison population and segregated confinement was insufficient to\
give rise to a liberty interest protected by due process. See Gee\
v. Murphy, 325 F. App\'x 666, 670 (10th Cir. 2009). In our view,\
however, the more likely effect that Sandin has on Graham is simply\
to direct courts how to apply it. When an inmate seeks a change\
from segregation into the general prison population, that claim\
must proceed under § 1983 because, under Sandin, the quantum change\
in custody is insufficient. But where the quantum change in\
custody is still great enough, habeas remains the appropriate\
vehicle. See Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir. 1998)\
(observing that although Sandin might preclude habeas actions that\
challenge removal from the general prison population into\
segregation, "dramatically more restrictive confinement may be\
contested in a collateral attack under § 2254"). Here, as we\
elaborate on below in our discussion of procedural due process, we\
think that the difference in the level of custody between the ESP\
and imprisonment was of sufficient magnitude to justify the use of\
habeas corpus.\
'

var WPFootnote9 = 'We recognize that a future restraint on liberty may provide\
a basis for habeas jurisdiction if it is imminent and inevitable. \
See, e.g., Hensley v. Mun. Court, 411 U.S. 345, 351–52 (1973);\
Fernos-Lopez v. Figarella Lopez, 929 F.2d 20, 24 (1st Cir. 1991)\
(per curiam); Roba v. United States, 604 F.2d 215, 219 (2d Cir.\
1979). But custody is not considered imminent and inevitable for\
habeas purposes if it would depend on "contingencies" which may\
"render the entire controversy academic." Fernoz-Lopez, 929 F.2d\
at 24 (citing Hensley, 411 U.S. at 352). In Hensley, the Supreme\
Court found that custody postponed by means of a judicial stay was\
sufficiently inevitable because it had been ordered by a court of\
law. The Court noted that even if it were it to conclude that the\
petitioner was not in custody, "that result would do no more than\
postpone this habeas corpus action until petitioner had begun\
service of his sentence." 411 U.S. at 352. In Fernos-Lopez, we\
emphasized that the inevitability in Hensley was in large part a\
function of the original court order. Fernos-Lopez, 929 F.2d at\
24. By contrast, a party\'s "insistence on continuing to prosecute\
[a] matter," even if likely to occur, was still considered a\
contingency that rendered custody too speculative to justify the\
use of habeas corpus. Id.\
              Here, the record does not indicate that any formal proceedings\
to reincarcerate the Rivera-Feliciano plaintiffs have ever been\
initiated. The only guarantee is the Secretary of Justice\'s public\
proclamation. Without a doubt, the odds are great that the\
Commonwealth will follow through on that proclamation if it is\
allowed to do so, but that outcome is not a legal certainty. It\
remains, rather, a matter of executive discretion. We do not\
consider the exercise of that discretion to be sufficiently\
inevitable to justify the use of habeas corpus. See id.; cf.\
Edmunds v. Won Bae Chang, 509 F.2d 39, 41 (9th Cir. 1975) (finding\
that the threat of confinement from an upcoming contempt proceeding\
was not sufficiently inevitable to fulfill habeas\'s custody\
requirement because "[n]o sentence of confinement presently exists,\
and none may be forthcoming"). The plaintiffs here are not\
attempting to secure a decreased level of custody so much as ward\
off a substantial threat of an increased level of custody. Under\
such circumstances, plaintiffs seeking prospective relief may\
proceed by way of injunction. See Dotson, 544 U.S. at 81\
(explaining that a "prisoner\'s claim for an injunction barring\
future unconstitutional procedures did not fall within habeas\'\
exclusive domain.") (emphasis in original); Matos ex rel. Matos v.\
Clinton School Dist., 367 F.3d 68, 73 (1st Cir. 2004) (noting that\
a preliminary injunction should be used "to prevent a real threat\
of harm").\
'

var WPFootnote10 = 'Although the González-Fuentes petitioners filed under § 2241\
as well, § 2254 ultimately governs the relief that they seek. \
Section 2241, which does not contain many of the hurdles that\
§ 2254 places before habeas petitioners, may be used to attack the\
manner in which a sentence is executed, as opposed to the sentence\
itself. Muniz v. Sabol, 517 F.3d 29, 33–34 (1st Cir. 2008). Yet\
even if the substance of the challenge here could theoretically\
support jurisdiction under § 2241, the majority view is that\
prisoners in state custody are required to comply with all the\
requirements laid out in § 2254 whenever they wish to challenge\
their custodial status, no matter what statutory label the prisoner\
uses. To do otherwise would thwart Congress\'s intent in passing\
AEDPA. See White v. Lambert, 370 F.3d 1002, 1006–10 (9th Cir.\
2004) (discussing majority position). But see Montez v. McKinna,\
208 F.3d 862, 865 (10th Cir. 2000) (stating the minority view that\
state prisoners need not comply with § 2254 when attacking the\
execution of a sentence). We previously adopted the majority\
position in an unpublished disposition, see Brennan v. Wall, 100 F.\
App\'x 4, 4–5 (1st Cir. 2004) (per curiam), and we see no reason to\
abandon it here. \
'

var WPFootnote11 = 'Nearly all of the inmates committed their crimes before the\
ESP\'s informal inception in 1989. One, however, committed his\
crime after this date but before the program\'s official\
establishment in 1994. The Puerto Rico Supreme Court found that\
because the Commonwealth\'s Administrative Procedure Act required\
notice-and-comment procedures in order for an agency\'s action to\
have any legal force, the AOC\'s action in 1989 was "not a\
\'legislative\' act capable of activating the protection against ex\
post facto laws." González-Fuentes v. Puerto Rico, No. AC-2005-48,\
slip op. at 18 (P.R. Mar. 29, 2006). Because the parties have made\
no argument on appeal for treating an offense committed between\
1989 and 1994 differently than an offense committed before 1989, we\
do not address the issue.\
'

var WPFootnote12 = 'Puerto Rico\'s actions could arguably present an ex post facto\
issue for inmates who committed murder in the year-long period\
between the effective dates of the 1994 regulation and Law 49. We\
need not decide the issue here, however, as all of the inmates in\
these appeals committed their crimes prior to the enactment of the\
1994 regulation.\
'

var WPFootnote13 = 'The appellees\' reliance on Weaver v. Graham is similarly\
misplaced. The petitioner in Weaver committed his offense at a\
time when a statute already in force provided a formula for\
receiving gain-time credits that would reduce the time of\
imprisonment. Years later, the state passed a statute that created\
a new, less generous formula for receiving gain-time credits. \
Going forward, the state applied this new statute and formula to\
all inmates -- including those who, like the petitioner, had\
previously been subject to the more favorable formula. The Court\
held that the new statute violated the Ex Post Facto Clause with\
respect to the petitioner because, like the statute in Lynce but\
unlike the one here, it was more onerous than the statute that\
applied at the time of the offense. 450 U.S. at 35–36.\
'

var WPFootnote14 = 'Even executive action that does shock the conscience will\
still not infringe substantive due process unless it also deprives\
an individual of a "protected interest in life, liberty, or\
property." See Aguilar v. U.S. Immigration & Customs Enf., 510\
F.3d 1, 23 (1st Cir. 2007). Though we hold below that a liberty\
interest in ESP status is protected by procedural due process, it\
does not automatically follow that the same interest will be\
protected by its substantive sibling. Substantive due process\
protects only those interests that implicate one of "those\
fundamental rights and liberties which are, objectively, deeply\
rooted in this Nation\'s history and tradition and implicit in the\
concept of ordered liberty, such that neither liberty nor justice\
would exist if they were sacrificed." Washington v. Glucksberg,\
521 U.S. 702, 720–21, (1997) (internal quotation marks and\
citations omitted). As a result, "[t]he interests protected by\
substantive due process are of course much narrower than those\
protected by procedural due process." Bell v. Ohio State Univ.,\
351 F.3d 240, 249–50 (6th Cir. 2003). Courts must be careful not\
to "inject the more demanding \'fundamental rights and liberties\'\
analysis from the substantive due process sphere into the \'liberty\
interest\' analysis that pertains to the procedural due process\
inquiry," Brown v. Cooke, No. 09-1144, 2010 WL 227574, at *2 (10th\
Cir. Jan. 22, 2010), and vice versa.\
              Here, because we determine that the challenged executive\
action is not conscience-shocking, it is unnecessary for us to\
determine whether ESP participants possess a liberty interest so\
fundamental as to be protected by substantive due process.\
'

var WPFootnote15 = 'The appellees do not argue that the Commonwealth acted with\
malice or with the purpose to oppress, nor did the district court\
make such a finding. Since the Commonwealth\'s decision to\
reincarcerate the appellees was the product of sustained reflection\
rather than urgency, we address the appellees\' argument assuming,\
but without deciding, that they could prevail through a showing of\
deliberate indifference alone.\
'

var WPFootnote16 = 'We do not mean to propose a per se rule that the state\'s\
interest in enforcing its laws is always dispositive. Were such a\
rule in force, an individual\'s lawfully obtained interest in X at\
one point could easily be eviscerated any time the government\
changes its position about the lawfulness of X at some later point.\
Cf. Heckler v. Cmty. Health Servs., 467 U.S. 51, 60–61 (1984)\
("Though the arguments the Government advances [in enforcing the\
law] are substantial, we are hesitant . . . to say that there are\
no cases in which the public interest in . . . enforc[ing] the law\
free from estoppel might be outweighed by the countervailing\
interest of citizens in some minimum standard of decency, honor,\
and reliability in their dealings with their Government."). But\
while exceptional cases may exist in which some invidious\
government animus is afoot, this is not one of them. There is\
nothing in the record here to indicate that the Commonwealth\'s\
change in position was prompted by bad faith or evil purpose. On\
the contrary, the change seems to have been supported by clear\
justifications: a societal interest in condign punishment for\
persons convicted of murder; a legislative judgment that electronic\
release of these convicts was posing severe security concerns; and\
a belief, now vindicated, that the lower courts misjudged how the\
regulation interfaced with the Constitution. \
'

var WPFootnote17 = 'The appellees correctly point out that the petitioner in\
Hawkins secured his liberty through a more run-of-the-mill\
administrative error, rather than through a deliberate legal\
interpretation that had been affirmed in the judiciary. But this\
distinction would not diminish the precedential risk of allowing\
the appellees to reap what has now become a facially unlawful\
benefit of an abrogated understanding of the Constitution.\
'

var WPFootnote18 = 'Indeed, had the Commonwealth continued to press the three-years provision as a basis for reimprisonment, it would have had at\
least a colorable argument. The petitioners claimed that Puerto\
Rico\'s official policy was to apply the 1994 regulation to them\
wholesale, without reference to subsequent regulations. Yet the\
record could also support the inference that this policy was never\
meant to prevent all further regulatory developments, but only\
those developments that would divest murder convicts of their\
eligibility for the program. If this reading is right, then the\
AOC was correct in its attempt to apply the 1999 regulation\'s\
three-years provision. Right or wrong, however, the AOC\'s initial\
reliance on the 1999 regulation was far from frivolous.\
'

var WPFootnote19 = 'As with the ex post facto claim, our de novo analysis of the\
questions governed by § 1983 ineluctably resolves the questions\
governed by AEDPA. We acknowledge, however, that the Puerto Rico\
Supreme Court rejected the González-Fuentes petitioners\' habeas\
claim for a somewhat different reason than we do here. Unlike us,\
that court concluded that the petitioners held no protectable\
liberty interest, and that retracting an erroneously granted\
benefit would not shock the conscience. This discrepancy in\
reasoning notwithstanding, our agreement as to the ultimate\
disposition nevertheless means that the Puerto Rico Supreme Court\'s\
decision was not an unreasonable application of clearly established\
Federal law. See Clements v. Clarke, 592 F.3d 45, 55–56 (1st Cir.\
2010) (noting that, in an AEDPA context, "[i]t is the result to\
which we owe deference, not the opinion expounding it.");\
Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001) ("The ultimate\
question on habeas . . . is not how well reasoned the state court\
decision is, but whether the outcome is reasonable.").\
              Moreover, the U.S. Supreme Court "has held on numerous\
occasions that it is not an unreasonable application of clearly\
established Federal law for a state court to decline to apply a\
specific legal rule that has not been squarely established by this\
Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 (2009)\
(internal quotation marks omitted). Thus, because the Supreme\
Court\'s "cases give no clear answer to the question\
presented, . . . \'it cannot be said that the state court\
unreasonabl[y] appli[ed] clearly established Federal law.\' Under\
the explicit terms of § 2254(d)(1), therefore, relief is\
unauthorized." Wright v. Van Patten, 552 U.S. 120, 125–26 (2008)\
(per curiam) (internal citation omitted).\
'

var WPFootnote20 = 'The facts of Holcomb demonstrate that the court did not\
intend the term "conditional release" to be limited to transitional\
programs designed to prepare inmates for full release. Holcomb\
involved an extended furlough program that, as defined in a state\
directive, is "an approved absence [for 15 or more consecutive days\
and nights] from a correctional facility under precise conditions\
and is an extension of the limit of confinement of an offender." \
337 F.3d at 218 n.1. \
'

var WPFootnote21 = 'The Seventh Circuit recently speculated in dicta that home\
detention might be constitutionally distinguishable from parole so\
long as a participant is serving out the balance of a sentence. In\
Domka v. Portage County, 523 F.3d 776 (7th Cir. 2008), it\
acknowledged, without accepting, the argument that "revoking\
probation and returning [a home detainee] who already served his\
sentence to incarceration . . . is arguably a greater loss of\
freedom than having [a home detainee] serve out his remaining time\
of confinement in a different location." Id. at 781 (internal\
quotation marks omitted). Even though the appellees here are still\
serving out their sentences, we are not prepared to describe their\
experience of lost freedom as insufficient to merit procedural due\
process protection. Like parolees, the appellees justifiably\
relied "on at least an implicit promise that [participation in the\
program] will be revoked only if [they] fail[] to live up to the\
[program] conditions." Young, 520 U.S. at 147–48 (quoting\
Morrissey, 408 U.S. at 482). And like parolees, they experienced\
a tremendous loss of freedom when that promise was broken. In\
light of the significant liberties that the appellees enjoyed along\
with the government\'s word that good behavior alone would extend\
those liberties into the future, we decline to adopt Domka\'s dicta\
here.\
'

var WPFootnote22 = 'One of these parties, according to the record, is also a\
party to the habeas petition here.\
'

var WPFootnote23 = 'Not surprisingly, this is exactly how the AOC behaved. Its\
administrator circulated an internal memorandum in 1996 indicating\
that retroactive application would risk contempt of court. That\
same year, the Commonwealth conceded before a state appeals court\
that Law 49 applied prospectively and therefore may only be applied\
to persons who committed offenses on or after its effective date.\
'

var WPFootnote24 = 'The one federal case that the Commonwealth cites in its\
appellate brief, Kaufmann v. Puerto Rico Telephone Co., 841 F.2d\
1169 (1st Cir. 1988), dealt with the development of constitutional\
property interests, rather than liberty interests. Kaufmann looked\
to the laws of Puerto Rico because "[s]uch property rights are not\
created by the constitution . . . but by \'existing rules or\
understandings that stem from an independent source such as state\
law.\'" Id. at 1173 (quoting Cleveland Bd. of Educ. v. Loudermill,\
470 U.S. 532, 538 (1985)). The petitioners\' liberty interest in\
this case differs dramatically in that it derives directly from the\
Constitution, regardless of what state law provides. See Dominique,\
73 F.3d at 1158 n.4 (observing that under Morrissey, the\
Constitution, rather than state law, gives rise to the liberty\
interest in parole).\
              The appellees, for their part, offer no case law whatsoever.\
'

var WPFootnote25 = 'Chicot dealt with a court\'s retroactive application of a new\
rule to transactions predating that rule\'s adoption, an issue that\
has spawned a great deal of subsequent doctrinal evolution and\
academic commentary. See Kermit Roosevelt III, A Little Theory Is\
a Dangerous Thing: The Myth of Adjudicative Retroactivity, 31 Conn.\
L. Rev. 1075 (1999). The issue we address here is far more limited\
and far less familiar -- not whether a new rule is to be applied to\
prior transactions, but whether a liberty interest that accrues\
under the old rule is to be honored under the new one. On this\
narrower question, we believe Chicot\'s reasoning to be pertinent.\
'

var WPFootnote26 = 'We note that because this situation presents legal, rather\
than factual, questions, the pre-deprivation process limned in\
Morrissey, 408 U.S. at 485–88, is not of talismanic significance\
here. While the process that is due should be guided by Morrissey\
in principle, it must be tailored to the peculiar exigencies of the\
situation at hand.\
'

var WPFootnote27 = 'In the González-Fuentes petitioners\' habeas challenge, the\
parties dispute whether the procedural due process claim was fairly\
presented to the Puerto Rico Supreme Court and, if so, whether that\
court adjudicated the matter on the merits, triggering the\
heightened deference owed under AEDPA. We need not decide these\
threshold questions, however, because we ultimately conclude that\
any procedural due process violations that occurred would still not\
warrant habeas relief. \
'

var WPFootnote28 = 'It is true that, theoretically, any of the appellees might\
still be able to contest the accuracy of his identification, the\
nature of the offense of conviction, and the length of his\
sentence. But the notion that any of them might have had such a\
basic defense all along seems fanciful when none has made the\
argument over the course of five years of litigation.\
'

var WPFootnote29 = 'One loose end deserves to be flagged. The record reveals\
that at least one of the plaintiffs in this action, Mendelson\
Ortiz-Nicolau, was a party to one of the prior suits in the Puerto\
Rico courts. As a result of that suit, he obtained a permanent\
injunction that would prevent the AOC from ever reincarcerating him\
based on his murder conviction. See Ortiz-Nicolau v. Corr. Admin.,\
No. KPE99-2586 (P.R. 1a Inst. Nov. 8, 1999). If Puerto Rico should\
now attempt to reincarcerate him along with the other plaintiffs,\
special consideration as to the res judicata effect of that\
injunction could be warranted.\
'

var WPFootnote30 = 'Of course, Puerto Rico may still volunteer to provide the\
appellees with the hearing that they should have received from the\
start. But doing so now, after the initial violations and purely\
as a result of this litigation, would not shield it from any\
monetary liability that might otherwise apply. \
'

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