Gonzalez-Fuentes v. Molina

United States Court of Appeals
For the First Circuit

No. 08-1818

EFRAÍN GONZÁLEZ-FUENTES, et al.,

Petitioners, Appellees,

v.

HON. CARLOS MOLINA, Secretary of Corrections and
Rehabilitation of of Puerto Rico and Administrator of
Corrections of the Commonwealth of Puerto Rico,

Respondent, Appellant.

No. 08-1819

CARMEN RIVERA-FELICIANO, et al.

Plaintiffs, Appellees,

v.

HON. LUIS FORTUNO BURSET, Governor of Puerto Rico;
HON. ROBERTO SANCHEZ-RAMOS, Secretary of Justice of the
Commonwealth of Puerto Rico; HON. CARLOS MOLINA, Secretary
of Corrections and Rehabilitation of Puerto Rico and
Administrator of Corrections of the Commonwealth of Puerto Rico;
HON. JOSE R. LOZADA, Director of the Bureau of Special
Investigations of the Commonwealth of Puerto Rico,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
 Before

Howard, Selya and Ebel*,
Circuit Judges.

Susana I. Peñagarícano-Brown, Puerto Rico Department of
Justice, with whom Roberto J. Sanchez Ramos, Secretary of Justice
and Ileana M. Oliver-Falero, Acting Solicitor General, were on
brief, for appellants.
Guillermo Ramos Luiña, with whom Carlos V. García Gutiérrez,
Alejandra Bird Lopez and Rafael E. Rodríguez Rivera, were on
brief, for appellees.

June 10, 2010

*
Of the Tenth Circuit, sitting by designation.
 HOWARD, Circuit Judge. In 2005, the Commonwealth of

Puerto Rico determined that a number of individuals in its prison

system had been unlawfully admitted into an electronic supervision

program. Seeking to rectify the situation, Puerto Rico attempted

to reincarcerate them. After one set of fourteen individuals had

been reimprisoned, another set successfully brought a civil rights

suit under 42 U.S.C. § 1983 in federal district court to enjoin

Puerto Rico from taking any action against them. Their

reimprisoned counterparts then filed a federal habeas petition on

identical grounds, which the district court similarly granted.

Puerto Rico appealed both the grant of the preliminary injunction

and the grant of habeas relief, and we consolidated the two

appeals.1

The questions presented are the same in each case:

whether Puerto Rico's revocation of these individuals'

participation in the electronic supervision program violated the Ex

Post Facto Clause or the Due Process Clause of the Fourteenth

Amendment.

1
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.

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 I.

In 1989, faced with overcrowding within its prison

system, the Puerto Rico Administration of Corrections ("AOC")

issued a memorandum proposing procedures for an Electronic

Supervision Program ("ESP"). The ESP would permit eligible inmates

to wear electronic tracking anklets and complete the remainder of

their sentences outside of prison. Acting under the authority

conferred in its enabling act, see P.R. Laws Ann. tit. 4, § 1101 et

seq., the AOC formalized the electronic supervision program in 1994

when it adopted Regulation No. 5065 ("the 1994 regulation"). The

program's eligibility criteria provided that convictions for

certain designated offenses would bar an inmate from participating

in the ESP. Because murder was not included in the list of

ineligible offenses, murder convicts were initially permitted to

join the program.

That changed on May 26, 1995 with the Puerto Rico

legislature's passage of Public Law 49 ("Law 49"), which amended

the AOC's enabling act to preclude murder convicts from ever

participating in transition or treatment and rehabilitation

programs. P.R. Laws Ann. tit. 4, § 1136a. The AOC originally

interpreted Law 49 to apply retroactively, blocking admission to

the ESP for all individuals convicted of murder.2 But a number of

2
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,

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inmates who had been convicted of murders committed before Law 49's

effective date separately filed suits in state courts challenging

the application of the law to them.3 These courts determined that

retroactive application would violate the Ex Post Facto Clause of

the U.S. Constitution. The AOC did not appeal these rulings.

Rather, in August 1996, it issued an internal agency memorandum

instructing corrections personnel not to apply Law 49 to any inmate

sentenced before the law's effective date. Under this new policy,

a number of murder convicts who had committed their crimes prior to

May 26, 1995, were admitted into the ESP.

In 1999, the AOC promulgated Regulation No. 6041 ("the

1999 regulation"). The 1999 regulation provided, among other

things, that inmates must be within three years of release under

their minimum sentence before they could become eligible for the

ESP ("the three-years provision"). In addition, the regulation

restated Law 49's prohibition on murder convicts participating in

the ESP. Consistent with its position that Law 49 was non-

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.
3
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).

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retroactive, the AOC did not apply this section of the 1999

regulation to those who had been convicted before Law 49's

effective date. It remains unclear whether the other sections of

the 1999 regulation, such as the three-years provision, were also

meant to be non-retroactive. Over the next few years, there was

much confusion about and litigation over which regulation applied

to whom and just how widely Law 49 should apply.

Meanwhile, independent of the wrangling over the scope of

Law 49, the Commonwealth had begun to investigate allegations that

certain inmates had acquired ESP privileges through bribery. It

did not uncover any evidence supporting those allegations.

Nevertheless, in the course of the investigations, it concluded

that fourteen4 participants in the ESP did not actually qualify for

the program. Although the participants all happened to have been

convicted of murder, that fact was entirely incidental to the

Commonwealth's initial conclusion that they were ineligible.

Instead, it reasoned that these participants did not meet the 1999

regulation's three-years provision, apparently without considering

whether that provision applied to them in the first place. On

April 6–7, 2005, these participants were arrested and

reincarcerated without being told the justification. Following a

pro forma administrative hearing in which they were unable to

4
Because two of these petitioners have since passed away, only
twelve of the original fourteen remain.

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present any evidence on their own behalf, they petitioned for a

writ of habeas corpus in the Court of First Instance of Puerto

Rico, seeking release back into the ESP. These reimprisoned

individuals, who would come to be known as the González-Fuentes

petitioners, alleged violations of the Ex Post Facto Clause and of

their right to due process. At this point, Puerto Rico abandoned

its reliance on the three-years provision and -- for the first time

-- advanced the petitioners' status as murder convicts as a basis

for reimprisonment.

The then-current administration, recently installed

following the gubernatorial elections, had now resolved that the Ex

Post Facto Clause would not actually prevent the retroactive

application of Law 49 to ESP participants who had been convicted

before May 26, 1995. In its view, both the executive officials who

had first litigated the issue and the lower courts which had

adjudicated it had misinterpreted ex post facto doctrine. The

battleground for this new position was the González-Fuentes

petitioners' habeas proceedings. Though the Court of First

Instance sided with the petitioners and granted them habeas corpus

relief, the Puerto Rico Court of Appeals disagreed, revoking the

writ. The petitioners then appealed to the Puerto Rico Supreme

Court.

On August 26, 2005, before the Puerto Rico Supreme Court

had ruled on the matter, Puerto Rico's Secretary of Justice

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announced the government's intention to reimprison all participants

in the ESP who had been convicted of murder. It based its decision

not on infractions of program rules, but rather on the new

administration's conclusion that these program participants were

all ineligible for the ESP under Law 49. That same day, a number

of murder convicts participating in the ESP filed a complaint in

federal district court under 42 U.S.C. § 1983 seeking a preliminary

injunction to halt the revocation of ESP privileges. These

participants, who came to be known as the Rivera-Feliciano

plaintiffs, echoed the González-Fuentes petitioners' arguments that

reimprisonment would violate the Ex Post Facto and Due Process

Clauses.

The fates of these two sets of participants would soon

become intertwined.5 In September 2005, the district court granted

the Rivera-Feliciano plaintiffs' request for a preliminary

injunction. After the Commonwealth appealed that decision to this

court, we elected to stay all proceedings in the case pending the

Puerto Rico Supreme Court's resolution of the González-Fuentes

petitioners' habeas petition. See Rivera-Feliciano v. Acevedo-

Vila, 438 F.3d 50, 60–62 (1st Cir. 2006).

In March 2006, the Puerto Rico Supreme Court denied the

petition. It concluded that the nullification of ESP privileges

5
We subsequently refer to both sets collectively as "the
appellees" except where the distinction between them is relevant to
the discussion.

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posed no ex post facto problem because the petitioners committed

their respective crimes before the program had even been created.

The court also ruled that the nullification did not offend due

process because the petitioners did not possess a protected liberty

interest in remaining in the program. It reasoned that the plain

terms of Law 49 had rendered the petitioners ineligible for the

program, such that their admission into it was nothing more than

"administrative error." According to the court, the petitioners

could not develop a protected interest in retaining a mistaken

grant of liberty.

Following their loss in the Puerto Rico courts, the

petitioners filed a subsequent habeas corpus petition in federal

district court under 28 U.S.C. §§ 2241 and 2254. Again they

alleged violations of the Ex Post Facto and Due Process Clauses.

The district court then consolidated the González-Fuentes habeas

case with the Rivera-Feliciano § 1983 case.

The Commonwealth filed a motion to dismiss the Rivera-

Feliciano claims, which the district court denied. Unfazed, the

Commonwealth then moved to dissolve the preliminary injunction in

that case. The district court again denied the motion, stating in

its order that the new motion was merely "rehashing the arguments

presented in [the Commonwealth's] previous requests to dismiss and

already addressed by this Court." After this second denial, the

Commonwealth filed an interlocutory appeal.

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 Shortly after this episode, the district court granted

habeas relief to the González-Fuentes petitioners, concluding that

the Puerto Rico Supreme Court's decision was in multiple respects

contrary to, and an unreasonable application of, clearly

established federal law. The district court first held that the

Puerto Rico Supreme Court's interpretation of the Ex Post Facto

Clause was contrary to the United States Supreme Court's decision

in Lynce v. Mathis, 519 U.S. 433 (1997), a case concerning the

revocation of early release credits. It then rejected the Puerto

Rico Supreme Court's handling of the petitioners' due process

claim, finding that their liberty interest in remaining in the ESP

was analogous to a parolee's liberty interest in remaining on

parole. The Commonwealth appealed this decision as well, which now

comes before us alongside the Rivera-Feliciano appeal.

II.

A.

The two most commonly trodden paths under federal law for

redress of complaints related to state imprisonment are through the

filing of a petition for habeas corpus or a civil-rights complaint

under 42 U.S.C. § 1983. Despite the overlap in subject matter, the

two schemes are not interchangeable. The Supreme Court has

explained that it would "wholly frustrate explicit congressional

intent" to allow plaintiffs to circumvent the federal habeas

statute's narrow prerequisites simply by invoking § 1983. Preiser

-10-
v. Rodriguez, 411 U.S. 475, 489–90 (1973). The Court has therefore

held that "a prisoner in state custody cannot use a § 1983 action

to challenge the fact or duration of his confinement. He must seek

federal habeas corpus relief (or appropriate state relief)

instead." Wilkinson v. Dotson, 544 U.S. 74, 78 (2004) (internal

quotation marks and citations omitted).

With one set of appellees here relying on the federal

habeas statute and another set relying on § 1983, there is some

question at the outset whether both groups should have proceeded

exclusively under one scheme or the other.6 The dispute before us

is an example of "[t]he difficult intermediate case" where an

inmate is seeking neither a change in conditions nor an earlier

release, but rather a less restrictive form of custody. Graham v.

Broglin, 922 F.2d 379, 381 (7th Cir. 1991).

In Graham, the Seventh Circuit adopted the following

approach:

If the prisoner is seeking what can be fairly
described as a quantum change in the level of
custody -- whether outright freedom, or
freedom subject to the limited reporting and
financial constraints of bond or parole or
probation . . . then habeas corpus is his
remedy. But if he is seeking a different
program or location or environment, then he is
challenging the conditions rather than the
fact of his confinement and his remedy is
under civil rights law, even if, as will

6
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.

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 usually be the case, the program or location
or environment that he is challenging is more
restrictive than the alternative that he
seeks.

Id.; see also Dotson, 544 U.S. at 85 (Scalia, J., concurring)

(approving of "quantum change" framework); Plyler v. Moore, 129

F.3d 728, 733 (4th Cir. 1997) (same); In re Deutsch, No. 94-5310,

1995 WL 66633, at *1 (D.C. Cir. Feb 14, 1995) (per curiam) (same).7

We think that the difference between the ESP here and

incarceration in a prison can fairly be described as a quantum

change in the level of custody. As we describe below in our

discussion of procedural due process, participants in the ESP were

able to live with family members, work daily jobs, attend church,

and reside in their own homes rather than in an institutional

7
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.

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setting. See Graham, 922 F.2d at 381 ("[H]ome is a less

restrictive place in which to serve one's sentence as well as a

different one."). The González-Fuentes petitioners' action was

thus correctly considered in habeas corpus.

The Rivera-Feliciano plaintiffs, meanwhile, filed their

claim in an attempt to preserve the status quo. Their level of

custody had yet to be increased, and they were trying to keep it

that way. Thus, because custodial status would be determined as of

the date a habeas petition is filed, Carafas v. LaVallee, 391 U.S.

234, 238–40 (1968), habeas would have not yet been available to

them for this purpose, and their claim was correctly styled as a

§ 1983 action.8

8
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

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 In sum, the two actions were styled properly. We may

take them as we find them.

B.

While our exercise of appellate jurisdiction is not at

issue in the González-Fuentes action, the Rivera-Feliciano

plaintiffs contest it with respect to the district court's

preliminary injunction. Since Puerto Rico's motion to dissolve the

injunction was, according to the district court, a mere restatement

of arguments that the court had already rejected when it denied

Puerto Rico's motion to dismiss, the Rivera-Feliciano plaintiffs

claim that the timeliness of the appeal should be measured from the

earlier of the court's two denials. Therefore, the argument goes,

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").

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the clock had already expired by the time Puerto Rico filed its

notice of appeal from the denial of the motion to dissolve, and we

cannot hear the claim.

This is a nonstarter. The Commonwealth's motion to

dismiss was premised on the argument that the Rivera-Feliciano

plaintiffs should have proceeded under the habeas statute rather

than § 1983. When the district court determined that § 1983 was

indeed an appropriate vehicle, Puerto Rico filed a motion to

dissolve the injunction, which the court denied. A district

court's denial of a motion to dissolve an injunctive order, unlike

a denial of a typical motion to dismiss, is immediately appealable

on interlocutory review. See 28 U.S.C. § 1292(a)(1) (granting

appellate jurisdiction over interlocutory orders "refusing to

dissolve or modify injunctions"). The only question relevant to

our exercise of appellate jurisdiction is whether Puerto Rico filed

a timely appeal from an appealable order. Because Puerto Rico did

so, we have jurisdiction to review the order.

C.

Procedural matters now behind us, we set forth the

governing standards of review. Though both groups of appellees

prevailed in the district court on essentially the same claims, our

standard of review differs for each set of claims because the two

sets arrive here in distinct procedural postures.

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 As to the Rivera-Feliciano plaintiffs, Puerto Rico

appeals from the district court's grant of a preliminary

injunction, which we review with reference to the same four-factor

test that the district court employs when deciding whether

injunctive relief is appropriate in the first instance. These

factors include: (1) the likelihood that the party requesting the

injunction will succeed on the merits of its claim or claims; (2)

the potential for irreparable harm to this party if the injunction

is denied; (3) the balance of the relative hardships that will

ensue following either a grant or denial; and (4) the effect (if

any) that the grant or denial will have on the public interest.

See R.I. Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31, 45

(1st Cir. 2002). Although we generally review the grant or denial

of a preliminary injunction for an abuse of discretion, this

deferential standard "applies only to issues of judgment and

balancing of conflicting factors, and we still review rulings on

abstract legal issues de novo." Id. (internal quotation marks

omitted). A material error of law constitutes an abuse of

discretion. Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 221

(1st Cir. 2003).

As to the González-Fuentes petitioners, Puerto Rico

appeals from the district court's grant of habeas corpus relief,

which we review de novo. O'Laughlin v. O'Brien, 568 F.3d 287, 298

(1st Cir. 2009). Federal habeas review of a state court's decision

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is governed by the Anti-Terrorism and Effective Death Penalty Act

of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214.9 Under

AEDPA, once a state court has adjudicated a claim on the merits, a

federal court may grant a habeas petition only if that

adjudication:

(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law as
determined by the Supreme Court of the United
States; or (2) resulted in a decision that was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d).

Only the first prong of this standard applies here. A

state court decision is "contrary to" clearly established Supreme

Court law if it "contradicts the governing law set forth in the

9
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.

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Supreme Court's cases or confronts a set of facts that are

materially indistinguishable from a decision of the Supreme Court

and nevertheless arrives at a result different from its precedent."

John v. Russo, 561 F.3d 88, 96 (1st Cir. 2009) (internal quotations

marks and brackets omitted). A state court decision is an

"unreasonable application" of clearly established federal law if it

either "identifies the correct governing legal rule from the

Supreme Court's cases but unreasonably applies it to the facts of

the particular state prisoner's case or unreasonably extends a

legal principle from the Supreme Court's precedent to a new context

where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply." Id. (internal

quotation marks and brackets omitted). When determining whether

federal law has been clearly established, we look to "the holdings,

as opposed to the dicta, of [the Supreme Court's] decisions as of

the time of the relevant state-court decision." Williams v.

Taylor, 529 U.S. 362, 412 (2000).

Normally, an analysis involving these different standards

of review would require different objects of review: the federal

district court's decision in the § 1983 case on the one hand and

the Puerto Rico Supreme Court's decision in the habeas case on the

other. Nevertheless, if we reject a particular § 1983 claim on the

merits, it would necessarily mean that the Puerto Rico Supreme

Court's decision, for AEDPA purposes, is to that extent not an

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unreasonable application of clearly established federal law; a

separate habeas analysis of that same claim would thus be

superfluous. For purposes of explication, then, our discussion in

the sections that follow centers on the federal district court's

analysis and applies equally to the resolution of both the § 1983

and habeas claims, except where noted.

D.

Turning to the merits, Puerto Rico argues that the

district court erred in concluding that the decision to revoke the

appellees' participation in the ESP violated the Ex Post Facto

Clause, U.S. Const. art. I, § 10, which provides that "[no] State

shall . . . pass any . . . ex post facto Law." This provision

"forbids not only legislative creation of new criminal liability

after the event but also a legislative increase in punishment after

the event." United States v. Lata, 415 F.3d 107, 110 (1st Cir.

2005). Its foundation, in the words of Justice Stone, is

the notion that laws, whatever their form,
which purport to make innocent acts criminal
after the event, or to aggravate an offense,
are harsh and oppressive, and that the
criminal quality attributable to an act,
either by the legal definition of the offense
or by the nature or amount of the punishment
imposed for its commission, should not be
altered by legislative enactment, after the
fact, to the disadvantage of the accused.

Beazell v. Ohio, 269 U.S. 167, 170 (1925).

The district court found that Puerto Rico's actions

violated the Ex Post Facto Clause as interpreted by the Supreme

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Court in Lynce v. Mathis, 519 U.S. 433 (1997). In Lynce, a state

statute in effect at the time of the petitioner's conviction

provided that if a prison population reached approximately 98% of

its capacity, "gain-time" credits that triggered early release

could be acquired at an accelerated pace. After accumulating

enough of these accelerated credits, the petitioner received an

early release from prison. Shortly after his release, however, the

law was changed so that he was no longer eligible. His accelerated

credits were voided, and he was subsequently rearrested and

reimprisoned to serve the balance of his sentence. Id. at 438–39.

The Court held that the retroactive application of the

new law violated the Ex Post Facto Clause because the law increased

the punishment for the petitioner's crime. Observing that the

statute rendered "ineligible for early release a class of prisoners

who were previously eligible," id. at 447 (emphasis added), the

Court found that the law effectively prolonged the period of

imprisonment for eligible inmates like the petitioner. Id. at 449.

Despite factual similarities, we think that Lynce is

inapposite to the case before us. "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 consummated.” Weaver v. Graham, 450 U.S. 24, 30

(1981). To that end, the Clause "forbids the imposition of

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punishment more severe than the punishment assigned by law when the

act to be punished occurred." Id. at 30 (emphasis added). The

timing of the increase in punishment distinguishes Lynce from

Puerto Rico's actions here. In Lynce, the gain-time statute under

which the petitioner remained eligible was already in effect at the

time the petitioner committed his crime. In other words, the crime

was punishable ab initio by a period of imprisonment that was

subject to reduction. When the state then retroactively eliminated

credits earned under the gain-time statute, it effectively imposed

a period of imprisonment that was not subject to reduction. See

Lynce, 519 U.S. at 445 (observing that the gain-time scheme was

"one determinant of petitioner's prison term and the petitioner's

effective sentence is altered once this determinant is changed"

(internal brackets and ellipses omitted)). The state's action thus

rendered a punishment that was more severe than the punishment

assigned by law when the act to be punished occurred.

Here, by contrast, the appellees committed their crimes

at various points that predated the very creation of the ESP, much

less the ESP's extension to those convicted of murder.10 As a

10
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,

-21-
result, Puerto Rico's decision to disqualify the inmates from

participating in the ESP had no effect on the punishment assigned

by law when the act to be punished occurred. Then, as now, the

crimes were punishable only by a period of imprisonment -- not by

a period of imprisonment subject to reduction through the ESP.

That the appellees were participating in the ESP in the interim

between the 1994 regulation and the passage of Law 49 is thus

irrelevant.11 See Stiver v. Meko, 130 F.3d 574, 578 (3d Cir. 1997)

(finding that because a sentence reduction was granted pursuant to

an enabling statute passed after the petitioner committed his

offense, he suffered no disadvantage when the Bureau of Prisons

subsequently promulgated a regulation revoking the reduction).

"There can be no violation of the ex post facto clause" where "the

legal consequences of [one's] crime . . . were the same when [one]

committed it as they are today." Id.12

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.
11
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.
12
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.

-22-
 The appellees artfully attempt to argue around this

distinction. They observe that at the time of their crimes, the

AOC had the discretion under its enabling act to create some

community-based supervision program and extend it to murder

convicts, whether or not the AOC had yet established the ESP

specifically. See P.R. Laws Ann. tit. 4, § 1112(b)(3) & (c)

(authorizing the AOC to "[u]se the method of rehabilitation in the

community to the greatest possible extent" and to "draft . . . the

internal regulations needed for the . . . rehabilitation programs

of the inmates of the correctional population"). The appellees

contend that Law 49 violated the Ex Post Facto Clause inasmuch as

it retroactively prohibited the AOC from exercising this

discretion. The absence of discretion, according to them, renders

the punishment that they now face more onerous than the punishment

assigned by law at the time of their offense: whereas they were

originally sentenced under a regime in which the AOC had the

authority to eventually grant them a supervised release of some

sort, they are now being punished under a regime in which no such

authority exists.

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.

-23-
 The district court adopted this theory, analogizing the

case to Lynce, where "the fact that [the petitioner] was not

necessarily entitled to the credits when he pleaded guilty made no

difference to the U.S. Supreme Court." Feliciano v. Acevedo-Vila,

No. 05-1910, slip op. at 30 (D.P.R. Jul 8, 2008). What made a

difference, rather, was the mere eligibility for early release, and

according to the district court, "[t]he elimination of that

eligibility -- notwithstanding that it came with no guarantee --

was sufficient to offend ex post facto principles." Id.

We do not find the analogy persuasive. The appellees'

argument would have us relate retroactive measures not only to the

penal schemes that existed at the time of the offense, but also to

the entire universe of penal schemes that could legally be crafted

at some future point, given the law in force at the time of the

offense. Such an expansive reading would severely hamper the AOC's

ability to experiment with alternative sentencing for its existing

prison population. For any new rehabilitative program it might

envision, the AOC would face a Hobson's choice of either extending

it to those convicted of murder prior to Law 49's effective date or

else forgoing the program entirely. An inability to tailor the

sentence to the class of offender would thus become the price of

developing alternatives to incarceration.

That is a price that the Ex Post Facto Clause should not

and does not exact on our prison system. No ex post facto

-24-
violation occurs where legislation "creates only the most

speculative and attenuated possibility of producing the prohibited

effect of increasing the measure of punishment." Cal. Dep't of

Corr. v. Morales, 514 U.S. 499, 509 (1995). Similarly, we think

that the possibility of the AOC establishing a new supervised

release program was too speculative and attenuated at the time that

the appellees committed their offenses. Beyond that speculation,

Law 49 remained perfectly consistent with the punishment assigned

by law when the act to be punished occurred -- that is, a sentence

not subject to the application of the ESP. Here, as in Morales, it

"[can]not be said with any certainty that the amended statutory

scheme was more 'onerous' than at the time of the crime." Lynce,

519 U.S. at 446 n.16 (citing Morales, 514 U.S. at 509–10).

The Puerto Rico Supreme Court held that the law applied

here is no more onerous than the law in effect at the time of

conviction, and we believe that the preceding analysis provides

more than enough reason to reject the González-Fuentes petitioners'

ex post facto claim under the deferential scrutiny of AEDPA review.

Moreover, because we would reach this conclusion even on de novo

review, our analysis applies with equal force to the Rivera-

Feliciano plaintiffs. The district court erred in finding an ex

post facto violation against either group.

E.

-25-
 The Due Process Clause of the Fourteenth Amendment, which

prohibits a state from depriving any person of "life, liberty, or

property, without due process of law," U.S. Const. amend. XIV, § 1,

has both a substantive and a procedural component. DePoutot v.

Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005). The district court

held that Puerto Rico's actions violated both substantive and

procedural due process. It first concluded that the reimprisonment

itself violated substantive due process because it was an

unconstitutionally arbitrary deprivation of liberty. Next, it

determined that the process that Puerto Rico afforded the González-

Fuentes petitioners when rearresting and reimprisoning them fell

short of what they were constitutionally due. Each of these

conclusions provided the court an independent basis for both its

grant of habeas relief to the petitioners as well as its

preliminary injunction to the Rivera-Feliciano plaintiffs.

1.

"The substantive component of due process protects

against 'certain government actions regardless of the fairness of

the procedures used to implement them.'" Souza v. Pina, 53 F.3d

423, 425–26 (1st Cir. 1995) (quoting Daniels v. Williams, 474 U.S.

327, 331 (1986)). Thus, unlike a procedural due process claim,

this challenge requires us to assess the constitutionality of the

deprivation itself.

-26-
 "[T]he criteria used for identifying government action

proscribed by the constitutional guarantee of substantive due

process vary depending on whether the challenged action is

legislative or executive in nature." DePoutot, 424 F.3d at 118.

Where, as here, it is an executive action that is challenged, the

threshold question is "whether the behavior of the governmental

officer is so egregious, so outrageous, that it may fairly be said

to shock the contemporary conscience." County of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998).13

13
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.

-27-
 The "shock the conscience" test has been labeled

"admittedly imprecise," Hawkins v. Freeman, 195 F.3d 732, 741 (4th

Cir. 1999) (en banc), "virtually standardless," Nestor Colon Medina

& Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992),

"somewhat amorphous," Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 53

(1st Cir. 2006), and "laden with subjective assessments," Lewis,

523 U.S. at 857 (Kennedy, J., concurring). Descriptions of what

actions qualify as "conscience-shocking" often descend into a

morass of adjectives that are as nebulous as they are pejorative,

including "truly irrational," Golden ex rel. Balch v. Anders, 324

F.3d 650, 652 (8th Cir. 2003), "extreme and egregious," DePoutot,

424 F.3d at 118, "truly outrageous, uncivilized, and intolerable,"

Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999), and

"stunning." Amsden v. Moran, 904 F.2d 748, 754 n.5 (1st Cir.

1990). Meanwhile, actions that have not been found to shock the

conscience have still been described as "despicable and wrongful."

Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991). It would seem

that, at least at the margins, the shock-the-conscience test

requires us to split the hairs of opprobrium.

Nevertheless, courts have made some inroads toward a more

concrete doctrine over the years. It is well established that

"negligence, without more, is simply insufficient to meet the

conscience-shocking standard," J.R. v. Gloria, 593 F.3d 73, 80 (1st

Cir. 2010), while "inten[t] to injure in some way unjustifiable by

-28-
any government interest" is likely sufficient. Id. at 79.

Anything between those two poles is "a matter for closer calls."

Lewis, 523 U.S. at 849. A hallmark of successful challenges is an

extreme lack of proportionality, as the test is primarily concerned

with "violations of personal rights . . . so severe . . . so

disproportionate to the need presented, and . . . so inspired by

malice or sadism rather than a merely careless or unwise excess of

zeal that it amounted to a brutal and inhumane abuse of official

power literally shocking to the conscience." Moran v. Clarke, 296

F.3d 638, 647 (8th Cir. 2002) (en banc) (ellipses in original)).

Of course, what may be conscience-shocking conduct in one

situation may not be in another, as "the analysis will vary with

the subject matter and the circumstances." Pagan v. Calderon, 448

F.3d 16, 32 (1st Cir. 2006); see also Coyne v. Cronin, 386 F.3d

280, 288 (1st Cir. 2004) ("The conscience-shocking standard is not

a monolith; its rigorousness varies from context to context.");

Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 623 (1st Cir. 2000)

("[E]ach determination of whether state conduct 'shocks the

conscience' is necessarily fact-specific and unique to the

particular circumstances in which the conduct occurred."). For

example, in situations "where government officials must act in

haste, under pressure, and without an opportunity for reflection,

even applications of deadly force by those officials cannot be

conscience-shocking unless undertaken maliciously and sadistically

-29-
for the very purpose of causing harm." Coyne, 386 F.3d at 288. On

the other hand, in situations "where actual deliberation on the

part of a governmental defendant is practical, the defendant may be

held to have engaged in conscience-shocking activity" by exercising

"deliberate indifference." Id.

It is this deliberate indifference standard that the

appellees rely on.14 Both sets of appellees make a bold claim,

asserting that reimprisonment would in itself constitute a reckless

disregard for their loss of liberty, irrespective of how the AOC

might choose to execute its objective. The González-Fuentes

petitioners supplement this claim with an additional, narrower one.

They posit that we should find deliberate indifference not only in

the decision to reimprison, but also in the methods through which

the AOC actually went about implementing that decision.

We begin with the version of the argument that is

advanced by both sets of appellees. The ESP participants held a

significant interest in the finality of their relaxed custodial

status. Prior to this litigation, all of the appellees had spent

multiple years (some as many as five) living in their homes rather

than behind prison walls, and they had no reason to doubt that that

14
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.

-30-
arrangement would be permanent so long as they abided by the terms

of the program. It took a decade for the Commonwealth to change

its mind on the ex post facto implications of Law 49, but once it

did so, it moved swiftly and in apparent disregard of the lives

that appellees had begun to build for themselves. It can scarcely

be denied that all of the appellees were blindsided by the new

administration's about-face on Law 49's retroactivity.

Against this backdrop, the appellees argue that

substantive due process should protect roots running so deep

against sudden uprooting. It shocks the conscience, they argue,

that "scores of people will have to live out the personal tragedy

of [sic], after accomplishing what the state wanted them to --

rehabilitation -- they should have to leave behind their homes,

families, jobs, churches, to be imprisoned for many more years, all

for no particular reason of importance." Appellees' Br. at 53–54.

The impact of reincarceration on the appellees is, of

course, substantial. By waiting until 2005, the Commonwealth did

more than squash a mere expectation of liberty. It set about

actually undoing the liberty itself. See Morrissey v. Brewer, 408

U.S. 471, 482 n.8 (1972) ("It is not sophistic to attach greater

importance to a person's justifiable reliance in maintaining his

conditional freedom so long as he abides by the conditions of his

release, than to his mere anticipation or hope of freedom.")

(quoting United States ex rel. Bey v. Conn. Bd. of Parole, 443 F.2d

-31-
1079, 1086 (2d Cir. 1971)). As Judge Friendly put it, "there is a

human difference between losing what one has and not getting what

one wants." Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L.

Rev. 1297, 1296 (1975). Because "due process must impose some

outer limit on the power to revise sentences upward after the

fact," Dewitt v. Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993), that

human difference weighs into the shock-the-conscience analysis.

See Lerner v. Gill, 751 F.2d 450, 459 (1st Cir. 1985) ("Only in

rare circumstances have courts allowed the misconstructions of

officials to estop the proper execution of state or federal law,

and such cases have involved prejudice and harm beyond frustrated

expectations.").

Nevertheless, we do not agree that the Commonwealth's

actions rise to the level of a substantive due process violation.

The appellees are mistaken in their assertion that the Commonwealth

acted for "no particular reason of importance." The Commonwealth's

executive branch necessarily has a fundamental interest in fidelity

to legislative directives. The determination that the Ex Post

Facto Clause would not implicate the retroactive application of Law

49 transformed the appellees' ESP participation into a clear

violation of the AOC's enabling act. The Commonwealth had and has

-32-
a justifiable interest in correcting that violation, even if it

once believed that no violation had occurred.15

The appellees labor to convince us that a violation of

the statute as currently interpreted is irrelevant so long as their

participation in the supervision program was lawful at the time it

was granted. Yet while this lawful-at-the-time theory may in some

circumstances validate the appellees' own interest in their

liberty, as we explain below in our discussion of procedural due

process, we do not agree that it somehow invalidates the

government's countervailing interest in faithful application of the

law. The proper question from the government's perspective is what

is lawful now, no matter what was considered lawful at the time.

15
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.

-33-
Just because the appellees' liberty interest was valid ab initio

does not somehow divest the Commonwealth of its legitimate stake in

the correct application of the law as it is currently understood.

And as that law is currently understood, it is illegal for the

appellees to retain their ESP status, even if it was legal for them

to have acquired it in the first place. Morever, as the Fourth

Circuit explained under analogous circumstances in Hawkins v.

Freeman, the Commonwealth possesses an interest in avoiding "the

precedential risk of acquiescing in irregular enforcement of state

law." 195 F.3d at 746.16

The Commonwealth's interest in correcting error is

central to the shock-the-conscience analysis. In Lewis, the

Supreme Court explained that the executive actions most likely to

shock the conscience are those that are "intended to injure in some

way unjustifiable by any government interest." 523 U.S. at 849.

Even when the government is held to the less demanding deliberate

indifference standard, we think the presence of interests on both

sides of the scale reduces the likelihood of unconstitutionality.

The Supreme Court's hypothetical archetype for a successful

deliberate indifference claim is an individual taken into state

16
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.

-34-
custody who is then denied basic human needs such as food and

medical care. Id. at 850–51. In that scenario, the government's

deliberate indifference to an individual whom it has forced to

become its ward shocks the conscience precisely because there is no

legitimate interest in ignoring the ward's needs. “[T]he State's

responsibility to attend to the medical needs of prisoners [or

detainees] does not ordinarily clash with other equally important

governmental responsibilities.” Id. at 851–52 (first alteration

added) (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)).

We think this point is implicit in our earlier decision

in DeWitt v. Ventetoulo. In DeWitt, which the appellees rely on

here, we found a due process violation in the reimprisonment of a

Rhode Island parolee who had already been at liberty for several

months despite the fact that his parole had been granted in

violation of state law. Explaining that "what is true for the

usual case is often not true in the extreme case," 6 F.3d at 34, we

conducted a fact-intensive inquiry before concluding that the

petitioner's reimprisonment would extend beyond the constitutional

pale. We were careful to explain, however, that our holding was

justified not only by "the defendant's interest in finality," but

also by the apparent absence of any "state[] interest in correcting

error." Id. at 35. Rhode Island officials had first learned of

the error through an ostensible parole violation, but did not seek

to revoke the parole because it would have come with the cost of a

-35-
revocation hearing. Instead, the state sought to bypass such

procedural protections entirely by claiming that the parole was

never lawfully granted in the first place. Though others had also

been released pursuant to the same mistake of law, Rhode Island

never undertook "any wide-scale program to identify and resentence

th[em]." Id. We therefore stressed that the parolee

appears to have been singled out primarily to
relieve the state of the trouble of conducting
a parole revocation hearing. The impression
is hard to avoid that the resentencing here
primarily serves only to skirt the minimal due
process obligations that attach to parole
revocations, that the state could conduct such
a proceeding at minimal cost, and that the
state's own self-proclaimed interest in
vindicating [the law in question] is limited
to this case.

Id. at 35–36.

In this case, by contrast, there is no doubt as to the

thoroughness of Puerto Rico's plans to reimprison every individual

participating in the ESP in violation of Law 49. Puerto Rico is

engaging in precisely the sort of wide-scale efforts that we

emphasized were lacking in DeWitt. We conclude that given the

circumstances here, the government has advanced a legitimate

interest to justify its actions. The decision to reimprison the

appellees following their time participating in the ESP does not in

itself shock the conscience and therefore does not infringe

substantive due process.

-36-
 The González-Fuentes petitioners, having already been

reimprisoned without any mention of Law 49, advance a more nuanced

argument. They claim that the circumstances of their arrest and

reimprisonment demonstrate that the Commonwealth's purported

interest in vindicating Law 49 is mere pretext. They begin with

the fact that the AOC initially found them to be ineligible for the

ESP not because of their status as murder convicts, but because

they each had more than three years left to serve the minimum of

their respective sentences, contravening the 1999 regulation's

three-years provision. Whether the 1999 regulation ever even

applied to the petitioners is still contested, but the petitioners

were reincarcerated only on the assumption that it did. Even that

justification, the petitioners point out, developed during a

fruitless investigation into allegations of bribery. Based on all

these events, the petitioners theorize that after the bribery

investigation yielded no evidence of foul play, the Commonwealth

engaged in a series of insincere, post-hoc rationalizations for

what at bottom was only an effort to take a tough-on-crime stance.

The district court agreed with the petitioners' theory.

It found evidence not only in the fact that Law 49 was not

mentioned until long after the arrests and reimprisonments, but

also in the Commonwealth's commission of several procedural

violations while executing those arrests and reimprisonments. In

particular, the court noted: the initial decision to reincarcerate

-37-
the appellees was made by a low ranking technician who was not

actually familiar with ESP regulations; ESP officials were never

informed of the intention to arrest the appellees, let alone

consulted regarding the decision; the arrest orders contained

photocopied signatures of an individual who had not officially

authorized its use; various procedural due process protections were

never afforded; and finally, when asked during an evidentiary

hearing, no high-ranking AOC personnel could recall how any of

these decisions were actually made. The sum total of all these

factors evinced what the district court found to be an "apathy and

disdain" for the petitioners' plight accompanied by no legitimate

governmental interest.

We take no issue with the district court's rebuke of the

Commonwealth for cavalierly disregarding the petitioners' dignity.

Nevertheless, we still cannot say that this disregard rises to the

level of a substantive due process violation. To begin with, the

petitioners do not allege that the Commonwealth conjured up its

initial justification merely for the purpose of reimprisoning them.

The most they have ever argued is that the justification was

incorrect because the entire 1999 regulation, including its three-

years provision, never actually applied to them. Given that the

1999 regulation was nominally in force when the appellees were

released into the ESP, the Commonwealth's reasonable confusion over

which regulation applied is not shocking, let alone conscience-

-38-
shocking.17 Thus, even though the Commonwealth did not invoke Law

49 until the state habeas stage, its interest has remained the same

throughout: adhering to its own laws. The only thing that shifted

was the law in question. That shift does not lessen the legitimacy

of the interest.

As for the flaws that the district court catalogued, all

of them concerned matters of procedure -- how, rather than why, the

Commonwealth pursued its objective. Those flaws may give rise to

claims based on procedural due process, but we have difficulty

accepting the notion that they also add up to a substantive due

process claim when viewed in the aggregate. Like its shift from

the three-years provision to Law 49's exclusion of murder convicts,

the Commonwealth's violations of procedural protocol do not negate

its substantive interests.

The shock-the-conscience test is an extremely demanding

one, and challenges analyzed under it rarely succeed. See Matthew

D. Umhofer, Confusing Pursuits: Sacramento v. Lewis and the Future

17
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.

-39-
of Substantive Due Process in the Executive Setting, 41 Santa Clara

L. Rev. 437, 475–76 (2001) (noting infrequency of successful

challenges). The appellees' claim here meets the same fate as most

of its peers. We are ultimately bound by the fact that substantive

due process is not "a font of tort law," Lewis, 523 U.S. at 847

n.8, and limits executive action only when that action "was

infected or driven by something much worse -- more blameworthy --

than mere negligence, or lack of proper compassion, or sense of

fairness, or than might invoke common law principles of estoppel or

fair criminal procedure to hold the state to its error." Hawkins,

195 F.3d at 746. Because that condition has not been met for

either set of appellees, their substantive due process claim must

fail.18

18
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

-40-
 2.

The district court also concluded that the manner in

which Puerto Rico reimprisoned the appellees violated their right

to procedural due process. "We examine procedural due process

questions in two steps: the first asks whether there exists a

liberty or property interest which has been interfered with by the

State; the second examines whether the procedures attendant upon

that deprivation were constitutionally sufficient." Ky. Dep't of

Corrections v. Thompson, 490 U.S. 454, 460 (1989) (internal

citation omitted). On appeal, Puerto Rico focuses exclusively on

the first of these steps, arguing that the appellees do not possess

a constitutionally protected liberty interest in the first place.

It offers two reasons in support: first, the ESP is merely an

alternative mode of, rather than liberty from, confinement; second,

even if the ESP does create a protected interest as a general

matter, it still could not have created one for these petitioners

in particular because they had been admitted into the program

erroneously. We take up each claim in turn.

i.

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).

-41-
 Although "[t]here is no constitutional or inherent right

of a convicted person to be conditionally released before the

expiration of a valid sentence," Greenholtz v. Inmates of Neb.

Penal and Corr. Complex, 442 U.S. 1, 7 (1979), an individual

already enjoying certain forms of conditional release has a

protected liberty interest in retaining them. In Morrissey v.

Brewer, the Supreme Court held that the Due Process Clause creates

a liberty interest in parole. The Court listed a series of reasons

why a parolee's liberty is unlike the minimal liberties of those

who reside behind prison walls:

The liberty of a parolee enables him to do a
wide range of things open to persons who have
never been convicted of any crime. . . .
Subject to the conditions of his parole, he
can be gainfully employed and is free to be
with family and friends and to form the other
enduring attachments of normal life. Though
the State properly subjects him to many
restrictions not applicable to other citizens,
his condition is very different from that of
confinement in a prison. . . . The parolee has
relied on at least an implicit promise that
parole will be revoked only if he fails to
live up to the parole conditions.

408 U.S. at 482. Similarly, in Young v. Harper, 520 U.S. 143

(1997), the Court determined that the petitioner held a liberty

interest in his participation in a "pre-parole" program.

Analogizing the program to the traditional parole that received due

process protection in Morrissey, the Court noted that "[the

petitioner] kept his own residence; he sought, obtained, and

-42-
maintained a job; and he lived a life generally free of the

incidents of imprisonment." Id. at 148.

At the same time, however, "[t]he Constitution does

not . . . guarantee that the convicted prisoner will be placed in

any particular prison." Meachum v. Fano, 427 U.S. 215, 224 (1976).

On that basis, the Court held in Sandin v. Conner, 515 U.S. 472

(1995), that an inmate does not possess a protected liberty

interest in preventing an intra-prison transfer to a more

restrictive form of confinement unless the change would work an

"atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life." Id. at 484. Applying that

standard, the Court went on to hold that placement in thirty days'

segregated confinement did not in itself implicate due process

concerns. Id. at 485–86.

How the Due Process Clause should apply to the liberty

interests of prisoners serving sentences in alternative forms of

confinement remains an open question after Sandin. Courts have

resolved the issue "by comparing the specific conditional release

in the case before them with the liberty interest in parole as

characterized by Morrissey." Holcomb v. Lykens, 337 F.3d 217, 221

(2d Cir. 2003).19 We are thus required to locate the ESP along a

19
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

-43-
spectrum of liberty that extends from the "ordinary incidences of

prison life" at its lowest end to parole at its highest.

This warrants a closer look at the lives that the

appellees were permitted to lead while participating in the

program. As with all participants in the ESP, they were serving

out the remainder of their respective prison sentences in their

homes, where they were free to live with others. At the time of

their reincarceration, the González-Fuentes petitioners were living

with either close relatives, significant others, or spouses, and in

many cases with children. The current living arrangements of the

Rivera-Feliciano plaintiffs are similar. All of the appellees were

generally required to remain at home, but had been authorized to

leave in order to work a job or attend university. They had to

submit to a routine list of restrictions on alcohol consumption and

substance abuse. Finally, to ensure compliance, the appellees were

made to wear an unremovable, waterproof electronic tracking anklet

at all times.

This arrangement is not far from that of the parolee in

Morrissey. It is true that by having to gain the AOC's approval

before they could leave the house, the appellees were confined in

a way that parolees typically are not. Yet after having secured

approval for work release, their lives were similar in practice.

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.

-44-
They woke up in their homes. They went to work. They returned to

their homes. On Sundays, some even attended church in their local

communities. In short, the appellees here had the liberty to "be

gainfully employed" and "be with family and friends and to form the

other enduring attachments of normal life." Morrissey, 408 U.S. at

482. And they expected all of this to continue so long as they

remained on good behavior.20

Puerto Rico argues that our judgment here is constrained

by our decision in Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996).

In Dominique, decided shortly after Sandin but before Young, we

held that an institutionally confined inmate has no protected

interest in participating in a work-release program. Dominique, 73

20
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.

-45-
F.3d at 1160. Focusing on the fact that the challenged confinement

was itself normal prison life, we explained that "confinement

within four walls of the type plaintiff now endures is an 'ordinary

incident of prison life.' It is not 'atypical.'" Id. Any

difference between the challenged confinement and the work-release

program was ultimately irrelevant.

At the outset, we note that Dominique's approach has

limits. In that case, we focused exclusively on the question of

whether the challenged confinement to which the inmate was returned

constituted an ordinary incident of prison life. That analysis was

narrower than the one the Supreme Court subsequently employed in

Young, which also considered the nature of the program from which

the inmate had been removed. It may very well be that a

consideration of the work-release program at issue in Dominique

would compel the conclusion that the petitioner there held no

protected liberty interest. But if Sandin requires us to train our

eyes solely on the comparison between the challenged confinement

and the ordinary incidences of prison life, without any

consideration of the freedoms inherent in the outside-of-prison

arrangement that is being revoked, then it would seem that a

parolee would hold no liberty interest, either. In light of Young,

which found a conditional release program so similar to parole as

to merit due process protection, that conclusion cannot possibly be

correct. Indeed, Sandin itself relied on Morrissey, the very

-46-
touchstone for a parolee's due process rights. See 515 U.S. at

480. For this reason, some have criticized our analysis in

Dominique as being overly broad and inconsistent with Supreme Court

precedent. See Anderson v. Recore, 317 F.3d 194, 200–01 (2d Cir.

2003); see also McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir.

2002) ("It is clear from the Court's framing of the problem in

Sandin . . . that Sandin's holding was limited to internal prison

disciplinary regulations."); Orellana v. Kyle, 65 F.3d 29, 32 (5th

Cir. 1995) (holding that Sandin does not overrule prior law

concerning the creation of liberty interests with respect to parole

decisions).

When we attempted to interpret Sandin in our Dominique

opinion, we did not yet have the benefit of Young, which was handed

down the following year. We now think that Young clarifies

Sandin's holding. See Kim v. Hurston, 182 F.3d 113, 118 (2d Cir.

1999) (acknowledging the historical difficulty of applying Sandin

to work-release cases and then noting that Young had subsequently

"shed considerable light on the issue"). It implicitly suggests

that the due process analysis depends on whether the baseline

liberty being deprived is that of the general prison population or

rather of a more parole-like arrangement. When the challenged

action concerns what can be fairly described as the transfer of an

individual from one imprisonment to another, Sandin's "atypical

hardship" standard remains our lodestar; when, on the other hand,

-47-
it concerns the disqualification of an individual from a supervised

release program that begins to more closely resemble parole, Young

and Morrissey will form part of the guiding constellation. The

upshot is that in cases in which an individual is not incarcerated

in prison, the extent of his existing liberty within the relevant

program -- and not just the extent of his reduced liberty in a

challenged placement -- must be taken into account.

This is not to question Dominique's ultimate holding, as

the case before us is distinguishable on at least one critical fact.

The transitional work-release program in Dominique required the

plaintiff to reside in a correctional facility. See 73 F.3d at

1157. Unlike him, ESP participants reside, indefinitely, in their

homes.

Other circuits have emphasized the significance of the

difference between confinement in an institutional setting and

confinement within the home. In Asquith v. Department of

Corrections, 186 F.3d 407 (3d Cir. 1999), the Third Circuit rejected

a plaintiff's analogy between his halfway-house program and the pre-

parole program at issue in Young due to the fact that he "never left

institutional confinement." Id. at 411. "In Young," the court

emphasized, "the pre-parolee lived in his own home. . . . These

restrictions [of the halfway house] are dispositive because they

amount to institutional confinement." Id. Similarly, in Kim, the

Second Circuit held that the ability to reside in one's home while

-48-
working a job rendered a work-release program "virtually

indistinguishable from either traditional parole or the Oklahoma

program considered in Young." 182 F.3d at 118. Finally, in Paige

v. Hudson, 341 F.3d 642 (7th Cir. 2003), the Seventh Circuit

observed that "[t]he difference between being confined in a jail and

being confined to one's home is much greater than the difference

between being a member of the general prison population and an

inmate of a prison's segregation wing, the sort of difference that

Sandin refused to characterize as the difference between having

liberty and being deprived of it." Id. at 643–44; see also Graham,

922 F.2d at 381 (criticizing another court's description of a home

furlough as "merely chang[ing] the location where the prisoner's

sentence is to be served," because "home is a less restrictive place

in which to serve one's sentence as well as a different one").

Taken together, these statements suggest that the Due Process Clause

is particularly protective of individuals participating in non-

institutional forms of confinement. A halfway house may indeed be

a house, but it is not a home.

It is true that the electronic monitoring severely

curtailed the privacy that the appellees would traditionally enjoy

in their homes. Yet if confinement within the home did not redound

to their privacy, it still redounded to their liberty. The ESP,

unlike institutional confinement of any kind, allowed the appellees

to live with their loved ones, form relationships with neighbors,

-49-
lay down roots in their community, and reside in a dwelling of their

own choosing (albeit subject to certain limitations) rather than in

a cell designated by the government. Even without creating an

expectation of privacy, what the ESP afforded the appellees was

included in the constitutionally protected prerogative to "establish

a home." Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see also

Cabrol v. Town of Youngsville, 106 F.3d 101, 107 (5th Cir. 1997)

(referring to the Due Process Clause's protection of "an

individual's freedom . . . to establish a home and position in one's

community"); Margaret Jane Radin, Property for Personhood, 34 Stan.

L. Rev. 957, 992 (1982) ("The home is affirmatively part of

oneself . . . and not just the agreed-on locale for protection from

outside interference.").

For these reasons, we believe that the appellees'

arrangement was sufficiently similar to traditional parole -- far

more like parole than the work release program in Dominique -- to

merit protection under the Due Process Clause.

ii.

Even accepting that participation in the ESP could

theoretically form the basis for a protected liberty interest,

Puerto Rico contends that the appellees' procedural due process

claim should still fail because they never lawfully acquired that

interest in the first place. The argument's logic proceeds in five

steps: (1) the appellees were only able to receive their ESP

-50-
privileges because lower courts had held that the Ex Post Facto

Clause would bar the retrospective application of Law 49 to

individuals who committed offenses earlier than May 26, 1995; (2)

subsequently, however, that interpretation was rejected by the

Puerto Rico Supreme Court on collateral review (a ruling that, as

we explained above, we do not disturb here); (3) once the

constitutional impediment had been removed, Law 49 required

retrospective application; (4) retrospective application would

render the original grant of ESP privileges to the appellees void

ab initio; (5) therefore, that grant cannot confer any protected

interest under the Due Process Clause.

In support of this argument, Puerto Rico points to a line

of Commonwealth cases establishing that, as far as the Due Process

Clause is concerned, an "unlawful" grant of liberty is no grant of

liberty at all. This may be another version of the Puerto Rico

Supreme Court's position that "administrative errors" are not

capable of creating liberty interests. There is some federal

precedent for this proposition, though none of it has been invoked

at any point in this litigation. See Jenkins v. Currier, 514 F.3d

1030, 1035 (10th Cir. 2008); Henderson v. Simms, 223 F.3d 267,

274–75 (4th Cir. 2000); Campbell v. Williamson, 783 F. Supp. 1161,

1164 (C.D. Ill. 1992). We need take no position on the matter,

however, because applying the theory here would be misplaced either

way. There was no administrative error involved in the AOC's

-51-
reasoned interpretation of the Ex Post Facto Clause; this was not

the proverbial stray checkmark in the wrong box. Nor was there

anything unlawful about it at the time. On the contrary, pursuant

to the judgments of lower courts, the AOC was prohibited from

applying Law 49 retrospectively against the inmates who had been

parties in those cases.21 It would presumably have been

collaterally estopped from applying the law retrospectively to other

inmates, as well. The AOC was thus not only permitted to refrain

but bound to refrain from applying Law 49 to those who committed

offenses before the statute's effective date, and consequently to

consider the merits of appellees' suitability for the ESP.22 Up

until 2005, when the Puerto Rico Supreme Court determined on habeas

review that the Ex Post Facto Clause did not bar retroactive

application of Law 49, the decision to grant the appellees ESP

privileges was perfectly consistent with the law.

Taking all of this into account, the true question

presented is not whether the appellees can develop a liberty

interest in the fruits of an unlawful agency action, but whether the

appellees can develop a liberty interest in the fruits of an agency

21
One of these parties, according to the record, is also a
party to the habeas petition here.
22
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.

-52-
action that is lawful at the time but whose legal basis is

undermined in a subsequent and unrelated proceeding. Neither side

offers any case law to answer this question.23

Based on our own review of the issue, we are not prepared

to say that an otherwise protected liberty interest granted pursuant

to a final judgment with preclusive effect can somehow be rendered

invisible to the Due Process Clause through a subsequent proceeding.

As the Supreme Court once observed, "[t]he past cannot always be

erased by a new judicial declaration." Chicot County Drainage Dist.

v. Baxter State Bank, 308 U.S. 371, 374 (1940).24 And as past

23
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.
24
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.

-53-
events go, liberty interests arising under the Constitution should

be especially difficult to whitewash.

A conclusion on collateral review that lower courts should

never have imposed a particular ex post facto limitation on Law 49

does not alter the fact that they did impose a particular ex post

facto limitation on Law 49. Because that limitation was never

challenged (let alone overturned) on direct appeal, the appellees

in this action were able to acquire a grant of liberty stamped with

the imprimatur of the Commonwealth judiciary. That fact bears not

only on the appellees' justifiable reliance, but also on the

validity ab initio of the grant itself. See Littlefield v. Caton,

679 F. Supp. 90, 92 (D. Me. 1988) (finding a protected liberty

interest in good-time credits awarded under a statute later found

to be unlawful), aff'd, 856 F.2d 344 (1st Cir. 1988); see also

Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923) ("If the

decision was wrong, that did not make the judgment void, but merely

left it open to reversal or modification in an appropriate and

timely appellate proceeding."); Teague v. Lane, 489 U.S. 288, 308–09

(1989) (citing Rooker and Chicot for the proposition that "it has

long been established that a final civil judgment entered under a

given rule of law may withstand subsequent judicial change in that

rule"). To be sure, we are not suggesting that the appellees have

(and the appellees are not claiming to have) a free-standing right

to the continuing application of the now-abrogated lower court

-54-
judgments themselves; the Puerto Rico Supreme Court had the

exclusive discretion whether to apply its own holding retroactively

to the parties before it. See Littlefield, 856 F.2d at 347. But

the existence of those lower court judgments, even if abrogated,

strikes us as an excellent example of what the Court referred to in

Chicot as "an operative fact" that "may have consequences which

cannot justly be ignored." Chicot, 308 U.S. at 374. We conclude

that a protected liberty interest accruing under a final judgment

is not void ab initio and may therefore serve as the basis for a due

process challenge.

iii.

"Once it is determined that due process applies, the

question remains what process is due." Morrissey, 408 U.S. at 481.

On appeal, the Commonwealth has made no attempt to argue that the

minimal procedures it has offered to those already reincarcerated

(that is, the González-Fuentes petitioners) would withstand

constitutional scrutiny once a protected liberty interest is found.

Nor would such an attempt be availing. ESP participants may of

course be justifiably reimprisoned, but, like parolees, they are

constitutionally entitled to written notice of the justification

before a hearing takes place. See id. at 486–87; Wolff, 418 U.S.

at 563–64. Yet the petitioners here were not given any explanation

until the hearing itself. By failing to give the petitioners any

pre-hearing information as to why their ESP status was being

-55-
revoked, Puerto Rico deprived them of "a chance to marshal the facts

in [their] defense and to clarify what the charges are, in fact."

Wolff, 418 U.S. at 564. Although Puerto Rico's justification turned

on questions of law rather than fact, the petitioners were

handicapped in their ability to mount a defense all the same.25

Indeed, Puerto Rico violated the petitioners' right to

advance notice on two separate occasions: first at the agency level,

when the purported justification for reimprisonment was the 1999

regulation, and then again in the state habeas proceedings, when the

justification suddenly changed to Law 49. We agree with the Second

Circuit that "[w]hen procedural due process requires an explanation

of the ground for termination of a liberty interest, it requires a

statement of the actual ground, and if an initial ground is changed,

the person deprived of liberty is entitled to know the new ground."

Kim, 182 F.3d at 119.

Also problematic was the fact that the petitioners had to

wait two weeks after their arrest before receiving any opportunity

to contest the revocation. In Morrissey, the Supreme Court stated

that an arrested parolee is entitled to a preliminary inquiry "as

promptly as convenient after arrest while information is fresh and

25
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.

-56-
sources are available" in order to establish reasonable grounds for

detention pending a final hearing. 408 U.S. at 485. We see no

reason why the same rule should not apply to ESP participants.

According to the district court, the AOC's internal operating

procedures required a preliminary hearing no more than 72 hours from

arrest and a final hearing no more than five business days later.

Had the Commonwealth followed those rules, the length of delay might

have been constitutionally adequate. But for reasons that Puerto

Rico has never made clear, it did not follow those rules in this

case. The two-week delay, absent any reasonable explanation,

infringes due process under the standard laid down in Morrissey.

The appellees are therefore correct in claiming that

Puerto Rico violated (in the case of the petitioners)26 and is

threatening to violate (in the case of the plaintiffs) their right

to procedural due process.

iv.

Yet establishing that rights were or are likely to be

violated does not necessarily entitle the appellees to the

particular remedies that they seek. If an adequate hearing and pre-

26
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.

-57-
deprivation notice could still serve some relevant fact-finding

purpose, the González-Fuentes petitioners might very well deserve

readmission into the ESP pending a procedurally sufficient

revocation process, and the Rivera-Feliciano plaintiffs might

equally well deserve an injunction that would ensure such sufficient

process remains the rule. But the procedures that should have been

provided all along would do the appellees little good now. Puerto

Rico's current justification for the deprivation of their liberty

rests on a pure question of law: whether retroactive application of

Law 49 withstands ex post facto and substantive due process

challenges. Once we acknowledge, as we do today, that the answer

to this question is yes, there is nothing left for the appellees to

challenge -- no matter what further procedures we might order.27

They certainly would not be entitled to another forum in which to

rehash their failed legal challenge to Law 49; on that issue, these

proceedings have already given them all the process that they were

due. And so long as Law 49 remains applicable to them, there is no

dispute on any issue, factual or legal, that could plausibly secure

them their liberty.

27
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.

-58-
 "[I]f the hearing mandated by the Due Process Clause is

to serve any useful purpose, there must be some factual

dispute . . . which has some significant bearing" on the underlying

deprivation. Codd v. Velger, 429 U.S. 624, 627 (1977) (per curiam).

As Justice Breyer explained in Sandin:

[W]hether or not a particular procedural
element normally seems appropriate to a certain
kind of proceeding, the Due Process Clause does
not require process unless, in the individual
case, there is a relevant factual dispute
between the parties. Just as courts do not
hold hearings when there is no "genuine" and
"material" issue of fact in dispute between the
parties, see Fed. Rule Civ. Proc. 56 (summary
judgment), so the Due Process Clause does not
entitle an inmate to additional disciplinary
hearing procedure . . . unless there is a
factual dispute (relevant to guilt) that the
additional procedure might help to resolve.

Sandin, 515 U.S. at 503–04 (Breyer, J., dissenting); see also

Anderson v. Recore, 446 F.3d 324, 330–32 (2d Cir. 2006) (Sotomayor,

J.) (holding that, given uncontested facts in a prison disciplinary

matter, a hearing is only necessary to the extent that the

adjudicator maintains discretion over the ultimate outcome).

Because we hold that Law 49 provides a valid, independent basis for

the deprivation of liberty, leaving the appellees with no argument

that a constitutionally sufficient procedure might vindicate, we

conclude that any procedural due process violations do not justify

the respective remedies that the two sets of appellees have

requested. Habeas relief for those already reimprisoned and

-59-
preliminary injunctive relief for those yet to be reimprisoned would

be equally nugatory.28

As a postscript, we emphasize that this conclusion derives

from concerns over remedies rather than over rights. Our decision

does not preclude the appellees from seeking some other form of

relief, such as monetary damages. "[T]he right to procedural due

process is 'absolute' in the sense that it does not depend upon the

merits of a claimant's substantive assertions." Carey v. Piphus,

435 U.S. 247, 266 (1978). This means that courts should take, in

the Tenth Circuit's formulation, "an ex ante perspective on the

right to due process hearings." Rector v. City & County of Denver,

348 F.3d 935, 944 (10th Cir. 2003). At the time of the deprivation,

the petitioners vigorously contested (and the plaintiffs, had they

not immediately sought provisional relief, would have contested) the

applicability of both of Puerto Rico's legal bases, first the 1999

regulation and then Law 49. Thus, to paraphrase Rector, "while ex

post, their loss on the merits precluded any claim for [habeas

corpus or injunctive relief], the denial of the opportunity to sway

28
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.

-60-
[prison] officials towards their cause" constituted an injury. Id.;

see also Kim, 182 F.3d at 113 (finding that even though "the minimal

hearing that procedural due process requires would have done [the

plaintiff] little good," officials remained liable for damages

because "the procedural due process requirement of a statement of

reasons must be observed").29

III.

For the reasons described above, we reverse the district

court's grant of habeas corpus to the González-Fuentes petitioners

and annul the writ. We also vacate the district court's preliminary

injunction and remand the case to the district court for proceedings

consistent with this opinion. Each side shall bear its own costs.

29
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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