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.
-8-
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
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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.
-61-
Gonzalez-Fuentes v. Molina
Court: Court of Appeals for the First Circuit
Date filed: 2010-06-10
Citations: 607 F.3d 864
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