Elliott, et al v. Martinez

Filing

[9957426] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Hartz (Authoring judge), Ebel (Concurring), and Holmes. Mandate to issue. [10-2213]

FILED
Appellate Case: 10-2213

Document: 01018824663

United States Court of Appeals
Date Filed: 04/09/2012 Page: 1
Tenth Circuit

April 9, 2012
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

WILLIAM B. ELLIOTT; TOMMY J.
EVARO; ANDRIA J. HERNANDEZ,
Plaintiffs - Apellants,
v.

No. 10-2213

SUSANA MARTINEZ, District
Attorney for the Third Judicial District
of New Mexico,
Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:10-CV-00385-JAP-ACT)

David A. Streubel, Streubel Kochersberger Mortimer LLC, Albuquerque, New
Mexico, for Plaintiffs - Appellants.
Cody R. Rogers (T.A. Sandenaw, Jr., with him on the brief), Sandenaw Law Firm,
P.C., Las Cruces, New Mexico, for Defendants - Appellees.

Before HARTZ, EBEL, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

Plaintiffs William B. Elliott, Tommy J. Evaro, and Andria J. Hernandez
were all targets of investigations by the Doña Ana County grand jury. Under

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New Mexico law they were entitled to target notices that advised them of the right
to testify before the grand jury. But the notices they received may not have
complied with state law. They filed a civil-rights action under 42 U.S.C. § 1983
in the United States District Court for the District of New Mexico, alleging that
District Attorney Susana Martinez violated their due-process rights under the
Fourteenth Amendment to the United States Constitution. The district court
granted the District Attorney’s motion to dismiss on the ground that the New
Mexico statute did not establish a liberty interest protected by the Fourteenth
Amendment. Plaintiffs appeal. We have jurisdiction under 28 U.S.C. § 1291 and
affirm because a statutory right to particular procedures is not a liberty interest
under the Fourteenth Amendment.
I.

BACKGROUND
Under New Mexico law a target of a grand-jury investigation is entitled to

notice that he or she is a target unless a district judge finds that notification may
result in flight, obstruction of justice, or danger to another person. See N.M. Stat.
Ann. § 31-6-11(C) (2003). The notice must describe the alleged crime being
investigated, the target’s right to remain silent, and the target’s right to counsel.
Id. at § 31-6-11(C)(1), (2), (5), (6). 1 It must also advise the target of the right to
1

In full, the relevant subsection reads:

A district attorney shall use reasonable diligence to notify a person in
writing that the person is the target of a grand jury investigation.
(continued...)
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testify before the grand jury on a date no earlier than four days in the future if the
target is in custody (and ten days if the target is not). See id. § 31-6-11(C)(3),
(4).
Plaintiffs were in custody at the Doña Ana County Detention Center when
they received target notices. They allege that these notices were untimely. Elliott
alleges that he received notice on February 24, 2010, at 10:38 a.m for a grandjury presentation on February 25 at 8:30 a.m. Evaro and Hernandez allege that

1

(...continued)

Unless the district judge presiding over the grand jury determines by
clear and convincing evidence that providing notification may result
in flight by the target, result in obstruction of justice or pose a
danger to another person, the target of a grand jury investigation
shall be notified in writing of the following information:
(1) that he is the target of an investigation;
(2) the nature of the alleged crime being investigated and the
date of the alleged crime and any applicable statutory
citations;
(3) the target’s right to testify no earlier than four days after
receiving the target notice if he is in custody, unless for good
cause the presiding judge orders a different time period or the
target agrees to testify sooner;
(4) the target’s right to testify no earlier than ten days after
receiving target notice if he is not in custody, unless for good
cause the presiding judge orders a different time period or the
target agrees to testify sooner;
(5) the target’s right to choose to remain silent; and
(6) the target’s right to assistance of counsel during the grand
jury investigation.
N.M. Stat. Ann. § 31-6-11(C) (2003).
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they received notices on March 15, 2010, at 2:10 p.m. for grand-jury
presentations on March 18 at 8:30 a.m.
Plaintiffs’ amended complaint asserted a procedural-due-process claim,
stating that violations of the statutory notice requirement denied them liberty
interests protected by the Fourteenth Amendment. The District Attorney moved
to dismiss the complaint for failure to state a claim. Plaintiffs responded that the
grand-jury statute creates a liberty interest “because it limits a district attorney’s
official discretion and mandates that if an individual is the target of [a] grand
jury, a particular outcome in the form of the required notice must follow.” Aplt.
App. at 29.
The district court granted the motion to dismiss. It said that the critical
question was whether the notice statute created a liberty interest protected by the
Due Process Clause of the Fourteenth Amendment, and that the answer to this
question ordinarily depends on whether the statute places “‘substantive
limitations on official discretion’” by establishing “‘“substantive predicates” to
govern official decision-making, and, further by mandating the outcome to be
reached upon a finding that the relevant criteria have been met.’” Id. at 52, Mem.
Op. & Order Granting Def.’s Mot. to Dismiss Pl.’s Compl. (Order) at 3,
No. 10-385 JP/ACT (D.N.M. Sept. 9, 2010) (quoting Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 462 (1989)). The court held, however, that even though
the statute created an expectation that Plaintiffs would receive four days’ notice,
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“a mere expectation of process” did not establish a protected liberty interest. Id.
at 55, Order at 6. It relied in part on decisions by the Sixth and Ninth Circuits
holding that notice requirements in state statutes do not create substantive
interests subject to constitutional procedural protections. See James v. Rowlands,
606 F.3d 646, 649, 656 (9th Cir. 2010) (plaintiff had no procedural-due-process
claim when officials violated a state statute requiring them to notify him when
they took his daughter into temporary custody); Pusey v. City of Youngstown, 11
F.3d 652, 656 (6th Cir. 1993) (state statute created no liberty interest when it
required the prosecutor to notify a crime victim of the time and place at which a
guilty plea concerning the crime would be entered).
II.

DISCUSSION
The Due Process Clause states, “No State shall . . . deprive any person of

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. An alleged violation of the procedural due process required by this clause
prompts a two-step inquiry: (1) whether the plaintiff has shown the deprivation
of an interest in “life, liberty, or property” and (2) whether the procedures
followed by the government in depriving the plaintiff of that interest comported
with “due process of law.” Ingraham v. Wright, 430 U.S. 651, 673 (1977). The
first step is the focus of this appeal.
A protected interest in liberty or property may have its source in either
federal or state law. See Thompson, 490 U.S. at 460 (“Protected liberty interests
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may arise from two sources—the Due Process Clause itself and the laws of the
States.” (internal quotation marks omitted)); Bd. of Regents of State Coll. v. Roth,
408 U.S. 564, 577 (1972) (Property interests are not created by the Constitution
but are created and defined by “an independent source such as state law.”). The
district court was correct in saying that a state-created interest is not protected by
the procedural component of the Due Process Clause unless the interest is an
entitlement—that is, unless the asserted right to property or liberty is mandated
by state law when specified substantive predicates exist. See Roth, 408 U.S. at
577; Thompson, 490 U.S. at 460, 462. For example, if state law provides that a
prison inmate is entitled to be released on parole when the inmate has not violated
prison regulations for 10 years, then that interest in being released is a protected
liberty interest: release is mandated when the substantive predicate (no violations
for 10 years) is satisfied. The Due Process Clause would then require the state to
provide a prisoner adequate procedures—say, notice and a hearing before prison
officials—before it could hold him beyond 10 years on the ground that he had
violated a prison regulation. 2 But the liberty interest in being released on parole
would not qualify for due-process protection if there were no substantive
2

We note that even when state law establishes the protected interest,
federal law (not state law) governs whether the procedures for depriving someone
of the protected interest are constitutionally adequate. See Hulen v. Yates, 322
F.3d 1229, 1247 (10th Cir. 2003) (“[O]nce the property right is established, it is
purely a matter of federal constitutional law whether the procedure afforded was
adequate.”); James, 606 F.3d at 657 (same for liberty interest).
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predicates that mandated release, as when “there is no set of facts which, if
shown, mandate a decision favorable to the [inmate].” Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979).
Plaintiffs argue that the grand-jury statute creates an entitlement because it
mandates notice to the grand-jury target when specified predicates (that notice
will not result in flight, obstruction of justice, or danger to another person) are
satisfied. But even if notice is an entitlement under state law, Plaintiffs have
failed to state a due-process claim. That is because an entitlement is protected by
the Due Process Clause only if it is an interest in life, liberty, or property; and not
all entitlements are such interests. For example, often a prisoner’s entitlements
are not liberty interests. A state law may mandate when a prisoner can be
segregated from the general prison population or otherwise subject to special
conditions of confinement. But the Due Process Clause imposes no procedural
constraints on a prison official in ordering special conditions of confinement
unless the official “imposes atypical and significant hardships on the inmate in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995). Any lesser hardship does not rise to the level of a deprivation of
liberty for one whose freedom has already been lost through conviction of a
crime. See id. at 484–86.
What constitutes a liberty or property interest within the meaning of the
Fourteenth Amendment is not always easy to determine. The concepts should not
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be given a narrow construction. “‘Liberty’ and ‘property’ are broad and majestic
terms . . . [that] relate to the whole domain of social and economic fact.” Roth,
408 U.S. at 571. But they are not unlimited in scope. In particular, the protected
interests are substantive rights, not rights to procedure. As the Supreme Court
wrote in Olim v. Wakinekona, 461 U.S. 238 (1983), “[A]n expectation of
receiving process is not, without more, a liberty interest protected by the Due
Process Clause.” Id. at 250 n.12. “Process is not an end in itself,” it explained.
Id. at 250. “Its constitutional purpose is to protect a substantive interest to which
the individual has a legitimate claim of entitlement.” Id. Thus, “an entitlement to
nothing but procedure cannot be the basis for a liberty or property interest.” Stein
v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1192 (10th Cir. 2008)
(brackets and internal quotation marks omitted).
The line between substance and procedure is somewhat blurry. In this case,
however, there is no question that the state statute creates a procedural right. As
the Supreme Court has repeatedly said, “The core of due process is the right to
notice and a meaningful opportunity to be heard.” LaChance v. Erickson, 522
U.S. 262, 266 (1998). What Plaintiffs describe as a liberty interest is precisely
that core of procedure: a right to notice from the grand jury and an opportunity to
be heard by it. Plaintiffs’ claim that the statute creates a liberty interest protected
by constitutional procedural due process reflects a confusion between what is a
liberty interest and what procedures the government must follow before it can
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restrict or deny that interest. They “collaps[e] the distinction between [the
interest] protected and the process that protects it.” Town of Castle Rock, Colo. v.
Gonzales, 545 U.S. 748, 772 (2005) (Souter, J., concurring).
We add one further observation to make clear that our conclusion is not the
result of some inadequacy in Plaintiffs’ briefing or a peculiarity of the state notice
statute. What if state law required dismissal of the indictment and release from
custody of a target who had been indicted without being provided the statutorily
required notice? Is not release from custody a liberty interest? And would not
that liberty interest be an entitlement protected by the Due Process Clause
because it was mandated when required notice was not given? No. To be
protected by procedural due process, an interest must be guaranteed by state law
when specified substantive predicates exist. “[A] State creates a protected liberty
interest by placing substantive limitations on official discretion.” Olim, 461 U.S.
at 249 (emphasis added). The requirement that notice be given is not a
substantive limitation, but a procedural one. Again, although the line between
substance and procedure is not always clear, it is clear here. Notice is a matter of
procedure, not substance. Procedural failures often mandate particular results,
results that could easily be categorized as affecting property or liberty. To say
that mandating such a consequence creates a liberty or property interest would
constitutionalize much of local procedural law. One could “seek[] federal process
as a substitute simply for state process.” Town of Castle Rock, 545 U.S. at 772
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(Souter, J., concurring). The Supreme Court has rejected such a view of the Due
Process Clause. In Olim, for example, regulations required the prison
administrator to conduct a particular kind of hearing before transferring a
prisoner. Olim, 461 U.S. at 242. Presumably, a transfer could be invalidated
upon a showing that no hearing had been conducted. But no liberty interest was
created because there were no substantive limitations on the administrator’s
exercise of discretion. See id. at 248–51. The requirement of a hearing was
merely a procedural limitation.
The authority cited by the concurrence is not to the contrary. Pusey v. City
of Youngstown, 11 F.3d 652 (6th Cir. 1993), supports our view when it states,
“‘[A]n expectation of receiving process is not, without more, a liberty interest
protected by the Due Process Clause.’” Id. at 656 (quoting Olim, 461 U.S. at 250
n.12). The issue in Pusey was whether an Ohio crime-victims’ rights statute gave
a victim a constitutionally protected right to notice of a hearing in the criminal
proceedings against the perpetrator. The concurrence mistakenly suggests that the
Pusey opinion turned on whether a particular outcome was mandated if notice was
not given to the victim. But the opinion never addressed what the sanction would
be for failure to give notice. Rather, it decided that no liberty interest was created
because nothing the victim could say at the criminal proceeding would mandate a
consequence for the perpetrator. See id.

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More importantly, the concurrence so misreads Olim that one would think
that the Supreme Court had affirmed, rather than reversed, the lower-court
decision in that case, which took the same position as the concurrence here. The
majority in Wakinekona v. Olim, 664 F.2d 708 (9th Cir. 1981), held that the
prisoner had a constitutionally protected liberty interest derived from state
regulations that “condition[ed] prison [interstate] transfers . . . upon a hearing by
an impartial committee established by the prison administrator.” Id. at 710. The
court wrote that the regulations’ “clear import is that a transfer will not be carried
out absent a hearing directed to proof of the facts alleged in the notice received
beforehand by the prisoner.” Id. at 711. The Supreme Court’s opinion never took
issue with that interpretation of the regulations. (The concurrence somehow reads
the Supreme Court’s opinion as saying that a transfer could be effected without a
hearing, but it relies on language in Olim saying only that the decision after the
hearing is within the unfettered discretion of prison officials. See Op., (Ebel, J.,
concurring) at 3; Olim, 461 U.S. at 249.) The Ninth Circuit rejected the
proposition that “no procedural requirements can create a substantive liberty
interest, unless the events which may cause a transfer are specified in those
requirements.” Wakinekona, 664 F.2d at 711–12. It held that the state
“regulations create a justifiable expectation that a prisoner will not be transferred
absent the specified procedures [and] consequently give rise to a constitutionally
protected liberty interest.” Id. at 711. What the Supreme Court did in Olim is to
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reject emphatically the view of the Ninth Circuit. To read Olim as support for the
concurrence is misguided.
This is not to say that there is no role for procedural due process in the
grand-jury context. We do not address here the unraised issue of what safeguards
are constitutionally required before a grand jury can issue an indictment. All we
say is that the state notice statute does not affect what is required by the Due
Process Clause. “[W]hen a state establishes procedures to protect a liberty
interest that arises from the Constitution itself[,]. . . the state does not thereby
create a new constitutional right to those procedures themselves, and noncompliance with those procedures does not necessarily violate the Due Process
Clause.” James, 606 F.3d at 657. Our holding is simply that the New Mexico
law on which Plaintiffs hinge their argument creates no protected liberty interest.
III.

CONCLUSION
We AFFIRM the judgment of the district court.

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10-2213, Elliot v. Martinez

EBEL, Circuit Judge, concurring.

I concur separately to identify what, in my view, is a misapprehension of due
process jurisprudence in the hypothetical situation contemplated in a paragraph near the
end of the majority opinion. The state statute in the hypothetical, unlike the statute
actually at issue in this case, would require automatic dismissal of an indictment and
release from custody of a grand jury target if the target had not been provided the
statutorily required notice. The majority opinion posits, in dicta, that even in that
instance, there would be no liberty interest, created by state law and protected under the
Due Process Clause. Respectfully, I disagree. In the hypothetical situation posed by the
majority opinion, I would hold that a liberty interest in the statutorily mandated notice
would exist if the statute required dismissal of the indictment and release from custody of
the grand jury target whenever the state failed to afford such notice. Indeed, I believe
that the crux of this case is that the New Mexico law calls only for notice and does not
additionally mandate a particular outcome when that statutory directive is not followed.
The majority opinion earlier correctly recognizes that “a state-created interest is
not protected by the procedural component of the Due Process Clause unless . . . the
asserted right to property or liberty is mandated by state law when specified substantive
predicates exist.” Maj. Op. at 6. The opinion illustrates that proposition with the
example of a prison inmate in a state whose law requires that the inmate be granted
parole if the inmate has not violated prison regulations for ten years. The opinion

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accurately observes that in that instance, a “protected liberty interest” would arise since
“release is mandated when the substantive predicate (no violations for 10 years) is
satisfied.”1 Id. Then, perplexingly to me, the majority opinion dismisses a hypothetical
situation not before the court and reaches a suggested result that I believe would be
incorrect.
State-granted procedure can be protected under the Due Process Clause when nonobservation of such procedure necessarily results in a particular substantive outcome.
Stated simply, “a State creates a protected liberty interest by placing substantive
limitations on official discretion.” Olim v. Wakinekona, 461 U.S., at 249. . . .
[T]he most common manner in which a State creates a liberty interest is by
establishing “substantive predicates” to govern official decision-making, Hewitt v.
Helms, 459 U.S., at 472 . . . , and, further, by mandating the outcome to be
reached upon a finding that the relevant criteria have been met.
Ky. Dept. of Corr. v. Thompson, 490 U.S. 454, 462 (1989).
Thompson thus recognizes two requisite prongs for state-created liberty interests:
first, substantive requirements governing official decisionmaking; and second; mandatory
outcomes that turn on the failure to meet those requirements. See id. In other words,
when state law contains substantive predicates that supply “decisionmaking criteria
which serve to limit discretion,” id., and the law also contains “‘explicitly mandatory

1

In contrast, if the state “statute grant[ed] the parole board complete discretion in making
parole decisions, [the statute would not] create a liberty interest.” Wood v. Utah Bd. Of
Pardons & Parole, 375 Fed. App’x 871, 874 n.3 (10th Cir. 2010) (unpublished) (internal
quotation marks omitted); see id. at 874 (recognizing that “[i]t is well established that,
where a state provides a discretionary parole regime, prisoners do not have a liberty or
property interest in parole”).
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language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive
predicates are present, a particular outcome must follow,” then “the State has created a
liberty interest.” Id. at 463 (citing Hewitt, 459 U.S. at 471-72). These criteria are
sensible because only upon their satisfaction would one have a “legitimate claim of
entitlement” to the interest in question, as required for Fourteenth Amendment protection,
as opposed to a mere “abstract need or desire” or “unilateral hope” for it. Id. at 460
(internal quotation marks omitted) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)).
To illustrate, in Olim v. Wakinekona, the Supreme Court declined to recognize a
constitutionally protected entitlement to a prisoner’s right, afforded by prison regulations,
to a particular kind of hearing before he could be transferred to another prison because
his transfer fate did not depend on whether the hearing had occurred. 461 U.S. 238, 24851 (1983). Contrary to the presumption expressly made in the majority opinion about the
facts of that case, Maj. Op. at 10, the inmate in Olim could have been transferred
regardless of whether the hearing occurred. See 461 U.S. at 249 (“[T]he prison
Administrator’s discretion to transfer an inmate is completely unfettered. No standards
govern or restrict the Administrator’s determination.”). Thus, as the state’s failure to
observe the statutorily guaranteed procedural right to a hearing had no mandatory bearing
on its discretion to transfer the inmate, there were no substantive predicates the
satisfaction of whose criteria mandated a particular outcome, so no constitutionally
protected liberty interest arose. Id. at 249-51.

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Likewise, in a notice-based case factually comparable to this one, the Sixth Circuit
declined to recognize a constitutionally protected entitlement to state-guaranteed notice
because the state’s failure to observe notice procedures did not, under state law,
mandatorily trigger any substantive outcome. See Pusey v. City of Youngstown, 11 F.3d
652, 656 (6th Cir. 1993). In that case, where state law “extend[ed] procedural rights,
notice, to crime victims,” requiring prosecutors to notify victims of upcoming trials or
plea hearings, the Sixth Circuit refused to recognize a liberty interest because the statute
“fail[ed] ‘to protect a substantive interest to which the individual has a legitimate claim of
entitlement’” given that the statute did not mandate a specific outcome in the event no
notice had been given. Id. (quoting Olim, 461 U.S. at 250). The court held that the law
“d[id] not create a liberty interest here because it only provides that the victim has the
right to be notified” and did not additionally “specify how the victim’s statement must
affect the hearing nor . . . require a particular outcome based on what the victim has
said.” Id. at 656. Notably, the Sixth Circuit placed emphasized the language of the
second prong of Thompson’s liberty-interest standard, regarding mandatory outcomes,
Thompson, 490 U.S. at 462, signaling that its holding depended on the inconclusive
consequence of not providing notice, not on the lack of substantive predicates under the
first liberty-interest prong of Thompson. See Pusey, 11 F.3d at 656.
This rule—that liberty interests in procedure arise only when a statute imposes
substantive requirements to govern official decisionmaking and, further, mandates a
certain outcome as a consequence of noncompliance with those requirements—is the

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reason why I concur that, in this case, the New Mexico statute did not afford the
appellants a liberty interest in the pre-indictment notice. The statute clearly requires a
specific manner of notice to grand jury targets, such that New Mexico officials have no
decisionmaking discretion regarding whether to give notice. See N.M.S.A. § 31-6-11(c).
Critically, however, the statute permits a grand jury to return an indictment regardless of
whether the target has received notice, as long as eight jurors find probable cause to
indict him; hence no outcome is mandated if the notice criterion is not met. See
N.M.S.A. § 31-6-10. This is analogous to the warden in Olim being able to transfer an
inmate regardless of whether a hearing had occurred, for example, or to trials and plea
hearings in Pusey proceeding unaffected by whether victims had received notice. Thus,
since “an expectation of receiving process is not, without more, a liberty interest,” Olim,
461 U.S. at 250 n.12 (emphasis added), the appellants’ expectation of notice is not
protected by the Due Process Clause.
But in the majority opinion’s hypothetical, there would be “more,” see id., namely,
the guarantee of freedom upon failure to give the concrete, expectable, statutorily
guaranteed notice. That is, in the hypothetical, New Mexico would mandate a particular
outcome upon the non-observance of procedure that specifically limits official
discretion—i.e., officials would have no choice but to afford notice, or the indictment
would be dismissed and the grand jury target released—so a liberty interest in notice-orfreedom would arise. There would be both (a) substantive predicates regarding the
guaranteed procedure (i.e., the state must give three days’ notice to grand jury targets, as

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in the actual statute, presumably), and (b) a mandatory outcome flowing from nonobservance of said procedure (i.e., dismissal of the indictment and release of the target).
See Thompson, 490 U.S. at 462. Therefore, in the hypothetical, the first prong is met.
The requirement to provide three days’ notice to grand jury targets is clearly an objective,
defined criterion that limits official discretion, in the same way that, as the majority
opinion recognizes, “no violations [of prison regulations] for 10 years” is a “substantive
predicate.” Maj. Op. at 6. The second prong is obviously met, too, in the hypothetical.
Under the very premise of the hypothetical, dismissal of the indictment and release from
custody are obligatory, absent notice.
I believe the majority opinion misinterprets “substantive” in this context when it
emphasizes that “[t]he requirement that notice be given is not a substantive limitation, but
a procedural one.” Maj. Op. at 9. The “substantive” in “substantive predicates” does not
mean “non-procedural,” but rather “concrete.” That is, the phrase “substantive
predicates” refers to “particularized standards or criteria [that] guide the State’s
decisionmakers,” or the “objective and defined criteria” upon which a decisionmaker is
“required to base its decisions” and without which a decisionmaker could “deny the
requested relief” for any reason. Olim, 461 U.S. at 249 (citations and internal quotation
marks omitted, emphases added); see also Thompson, 490 U.S. at 462 (characterizing
substantive predicates as “decisionmaking criteria which serve to limit discretion”).
Accordingly, the majority opinion is misguided when it underscores the word
“substantive,” Maj. Op. at 10, in citing Olim’s holding that the “prison regulations place
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no substantive limitations on official discretion,” Olim, 461 U.S. at 249, as though the
Court’s holding turned on some substantive/procedural dichotomy. Rather, the Court’s
ruling was based on the fact that “[n]o standards govern[ed] or restrict[ed] the
Administrator’s determination”—that the prison official’s discretion remained
“unfettered” notwithstanding “the fact that the prison regulations require a particular kind
of hearing.” Id. at 249-50. This is squarely contrary to the majority opinion’s
misunderstanding of Olim that “[p]resumably, a transfer could be invalidated upon a
showing that no hearing had been conducted.” Maj. Op. at 10. Because, in Olim, the
hearing was inconclusive to the inmate’s transfer, and “[p]rocess is not an end in itself,”
the inmate had no “legitimate claim of entitlement” to the regulation-guaranteed interest
such that it would merit constitutional protection. 461 U.S. at 250.
Thus, I concur with the result and holding in this case that New Mexico did not
create a liberty interest here because the state did not mandate a given result as a
consequence of the state’s failure to comply with the notice requirement. I concur only
because of my disagreement with the example proffered in dicta in a paragraph near the
end of the majority opinion.

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