Opposition Brief — Lehman v. MacFarlane

DD FILED

No. 99-437 Viv 1 [shy

OFFICE OF THE CLERK

In The SUPREME COURT, U.S.

Supreme Court of the United States

.

JOSEPH LEHMAN, Secretary,

Washington State Department of Corrections,

Petitioner,

DONALD MACFARLANE and JAMES FOGLE,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

¢

James E. Lossenz* MerepitH Martin ROUNTREE

CARNEY BADLEY SMITH & SCHONEMANN, ROUNTREE

SPELLMAN & Owen

701 Fifth Avenue 510 S. Congress Avenue

Suite 2200 Suite 308

Seattle, WA 98104 Austin, TX 78704

(206) 622-8020 (512) 320-0334

*Counsel of Record

Attorneys for Respondents

December 13, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

1.

TABLE OF CONTENTS

THERE IS NO CONFLICT BETWEEN McGINNIS

AND BEARDEN. BEARDEN STATES THE LAW

APPLICABLE TO CASES WHERE INCARCERA-

TION IS AUTOMATICALLY CAUSED SOLELY

BY A LACK OF WEALTH. McGINNIS DID NOT

INVOLVE AUTOMATIC INCARCERATION DUE

TO A LACK OF WEALTH, BUT INSTEAD

INVOLVED DELAY IN OBTAINING A HEAR-

ING THAT MIGHT HAVE LED TO RELEASE,

PROVIDED THE PRISONER DEMONSTRATED

FRRE: SAAMI IRE IN ING a 05068 Gd dee escapades

A. Bearden Controls Because It Articulates the

Equal Protection Analysis This Court Has

Held Directly Applicable To Cases, Like the

Present Case, In Which Lack of Wealth

Directly Causes Incarceration ..............

B. In McGinnis, This Court Applied A Standard

Equal Protection Analysis That Is Inapplica-

ble To This Case Because the Principle of

Incarceration Caused Directly By Lack of

Wealth Was Not At Stake ..................

THIS CASE IS NOT LIKELY TO BE AFFECTED

BY THIS COURT’S DECISION IN WILLIAMS v.

SOUT EME ss 4 Ks 0's 064 4 aba caine SON 4hdnd 9 he Kw

CAO Pe Ac «Silos de hadesdetbhaseebalencuasends

Page

TARR OF MTIONNIIIB 6s ici cs 0 i

sce cass 1

REASONS FOR DENYING THE WRIT............. 3

6

ii

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ........... 18

Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76

L..AD8 2B1 CGR sic caaes vesaceutsesawaents passim

Green v. French, 143 F.3d 865 (4th Cir. 1998)......... 17

Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 240

U.S. 251, 36 S. Ct. 269, 60 L.Ed. 629 (1916)........ 22

In re Fogle, 128 Wn.2d 56, 904 P.2d 722

CUGRS) ows oc ctdnnvccacks saueaennsaweeen 2, 6, 9, 10, 18

In re Mota, 114 Wn.2d 465, 788 P.2d 538 (1990)...... 13

In re Myers, 105 Wn.2d 257, 714 P.2d 303 (1986)....8, 9

In re Whitesel, 111 Wn.2d 621, 763 P.2d 199 (1988) ..... 8

In re Williams, 121 Wn.2d 655, 853 P.2d 444 (1993)..... 1

MacFarlane v. Walter, 179 F.3d 1131 (9th Cir. 1999) ..passim

McGinnis v. Royster, 410 U.S. 263, 93 S. Ct. 1055, 35

me Be e.g re errs rer ee passim

MLB v. SLJ, 519 U.S. 102, 117 S. Ct. 555, 136

LIOR Ge COMO. onsanc.ccaucebucdexkeeeee 13, 14

Pruett v. Texas, 414 U.S. 802, 94 S. Ct. 118, 38

me BR Ri, 5 eer Sere a er eS 5

State v. Barnes, 117 Wn.2d 701, 818 P.2d 1088 (1991) ..... 9

Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, OD LG Ge Cee «ocd cas vata peucawaks 17, 18

Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L.Ed.2d

BOD CRGPR) «ons ncnccscasscees cass Rkae OUR ee Ce 5

iii

TABLE OF AUTHORITIES - Continued

Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26

Ia I a 5

Williams v. Taylor, 119 S. Ct. 1753 (1999)..... 16, 17, 19, 21

Wright v. West,-505 U.S. 277, 112 S. Ct. 2482, 120

oo ee 8 reer Pre Tey rer oer 18

STATUTES

ON 3 a ys | aan 16, 17, 18, 19, 20, 21

CASE HISTORY

Washington State prisoner Donald MacFarlane was

convicted of unlawful possession of a controlled sub-

stance with intent to deliver and on June 24, 1991 he was

sentenced by the Clark County Superior Court to serve 72

months in confinement. Washington State prisoner James

Fogle was convicted of possession of a controlled sub-

stance, and in 1992 he was sentenced by the Pierce

County Superior Court to serve 60 months in confine-

ment. They were both unable to afford to post bail and

were therefore detained in the respective county jails

prior to sentencing. MacFarlane spent 144 presentence

days in the Clark County Jail, and Fogle spent 102 pre-

sentence days in the Pierce County Jail. Due to the local

jail policies of the Pierce and Clark County Jails, they

received less earned early release credit for the time they

spent in those county jails than they would have received

had they been released on bail and\later had to serve the

exact same amount of time in a state correctional facility,

or in other county jails in Washington State. See, e.g., In re

Williams, 121 Wn.2d 655, 658, 853 P.2d 444 (1993).! “Early

1 State prisoners in the custody of the Department of

Corrections are eligible to earn up to a one-third sentence

reduction. The reported facts of Williams show that the

administration of the King County Jail, located in Seattle, allows

pretrial detainees to earn up to one-third time off for good

conduct. At the time respondents were in Pierce and Clark

County jails, local policy provided that no prisoner charged

with or convicted of a felony was eligible to earn as much as a

one-third sentence reduction.

While this case was pending in the District Court, Pierce

County changed its policy so that now all pretrial detainees in

the Pierce County Jail are eligible to earn as much good time

release” credit is made up of two components, “good

conduct” and “good performance.” “Good conduct”

credit is awarded for the absence of misconduct. “Good

performance” credit is awarded for affirmative participa-

tion in various work or rehabilitative programs. Mac-

Farlane v. Walter, 179 F.3d 1131, 1135 n.1 (9th Cir. 1999).

MacFarlane and Fogle filed separate personal

restraint petitions in the Washington Court of Appeals,

challenging the county jails’ early-release policies as vio-

lative of equal protection. The Washington Court of

Appeals rejected Fogle’s petition, and the Washington

Supreme Court then granted Fogle’s petition for discre-

tionary review. The state supreme court also transferred

MacFarlane’s personal restraint petition, which was then

pending in the Washington Court of Appeals, to the state

supreme court, and consolidated the two cases for review.

On November 2, 1995 the Washington Supreme Court, in

a 5-to-4 decision, rejected the prisoners’ equal protection

claims. In re Fogle, 128 Wn.2d 56, 904 P.2d 722 (1995).

In August of 1996, MacFarlane and Fogle filed habeas

corpus petitions in the United States District Court for

the Western District of Washington. Their petitions were

consolidated. The Magistrate Judge issued a Report &

Recommendation recommending that their petitions be

denied, and that summary judgment be granted to the

Washington Department of Corrections. On June 9, 1997

the District Court issued an order approving the Report

credit as persons confined in state prisons (up to one-third). CR

39, ER 49-50. Thus, if Mr. Fogle were in Pierce County jail today,

his total time spent incarcerated would be less than it was under

the local policy in effect when he was there.

and entered judgment for the Department of Corrections.

MacFarlane and Fogle appealed.

On May 5, 1999 a panel of the United States Court of

Appeals issued a decision which reversed in part and

affirmed in part the decision of the District Court. The

Court of Appeals held that the county jails’ good conduct

credit policies violated equal protection, and the jails’

good performance credit policies did not violate equal

protection. The Department of Corrections’ petition for

rehearing was denied on June 9, 1999.

¢

REASONS FOR DENYING THE WRIT

1. THERE IS NO CONFLICT BETWEEN McGINNIS

AND BEARDEN. BEARDEN STATES THE LAW-

APPLICABLE TO CASES WHERE INCARCERA-

TION IS AUTOMATICALLY CAUSED SOLELY BY

A LACK OF WEALTH. McGINNIS DID NOT

INVOLVE AUTOMATIC INCARCERATION DUE

TO A LACK OF WEALTH,BUT INSTEAD

INVOLVED DELAY IN OBTAINING A HEARING

THAT MIGHT HAVE LED TO RELEASE, PRO-

VIDED THE PRISONER DEMONSTRATED HIS

REHABILITATION.

The Washington Department of Corrections contends

that this Court’s decision in Bearden v. Georgia, 461 U.S.

660, 103 S. Ct. 2064, 76 L.Ed.2d 221 (1983) did not “clearly

establish” any right applicable to the habeas petitioners

in this case. While the factual setting of Bearden is super-

ficially different from that of the present case, this Court

described the principle at stake in Bearden as “the imper-

missibility of imprisoning a defendant solely because of

his lack of financial resources.” 461 U.S. at 661 (italics

added). That principle is at stake in the present case as

well.

Petitioner Lehman contends that it is McGinnis v.

Royster, 410 U.S. 263, 93 S. Ct. 1055, 35 L.Ed.2d 282 (1973),

rather than Bearden, that controls this case. Petitioner

suggests that because both McGinnis and the present case

are prisoner “good time” cases, McGinnis controls, and

tries to distinguish Bearden because it is a case about

financial inability to pay a fine. But this type of analysis

ignores the material facts which make McGinnis inap-

posite and Bearden controlling. Bearden and this case both

deal with situations where a lack of wealth automatically

led to having to spend more days incarcerated. McGinnis

did not.

A. Bearden Controls Because It Articulates the

Equal Protection Analysis This Court Has Held

Directly Applicable To Cases, Like the Present

Case, In Which Lack of Wealth Directly Causes

Incarceration.

It does not matter that the respondents’ lack of

wealth in the present case made them incapable of post-

ing bail, whereas the defendant’s lack of wealth in

Bearden made him unable to pay a fine. These factual

differences are immaterial. In both cases, the lack of

financial resources led directly to the imposition of addi-

tional imprisonment.

_

Bearden held that incarceration must not be imposed

on an indigent individual solely because of that person’s

inability to pay a fine, following a well established line of

cases prohibiting imprisonment imposed solely on the

basis of lack of wealth. See Williams v. Illinois, 399 U.S.

235, 90 S. Ct. 2018, 26 L.Ed.2d 586 (1970) (unconstitutional

for state to add time to maximum prison term solely

because defendant involuntarily failed to pay fine or

costs); Tate v. Short, 401 U.S. 395, 398, 91 S. Ct. 668, 28

L.Ed.2d 130 (1971) (jailing a defendant for involuntary

failure to pay fines on non-jail offenses unconstitutionally

imprisons “solely because of . . . indigency” just as in

Williams; Pruett v. Texas, 414 U.S. 802, 94 S. Ct. 118, 38

L.Ed.2d 39 (1973) (summarily affirming lower court deci-

sion that when defendant was in jail pending appeal

“because [he] was too poor to make bond,” it was uncon-

stitutional to deny good time for this period simply

because his sentence did not technically start to run until

after his conviction was affirmed (470 F.2d 1182, 1183 (5th

Cir. 1973) (en banc)). In all of these cases, the relationship

between the inability to pay, and the imposition of addi-

tional incarceration time, is direct and automatic.

The decision below cogently explains why Bearden is

the controlling case notwithstanding any superficial fac-

tual distinctions between a criminal defendant’s post-

conviction inability to pay a fine imposed as part of a

sentence, and another defendant's failure to secure pre-

trial release from jail due to an inability to post bail.

Respondents fail to show that there is any mean-

ingful distinction between the case of a poor

person unable to pay a fine, who, as a result,

suffers longer incarceration than a similarly sit-

uated affluent person (Bearden) and the case of a

poor person unable to post bail pre-trial who, as

a result, suffers longer incarceration than a sim-

ilarly situated affluent person (MacFarlane and

Fogle). Bearden erected the framework intended

for application where a defendant suffers

increased incarceration because of indigency

and, thus, is clearly established law governing

the issue presented here.

MacFarlane v. Walter, 179 F.3d at 1140. This simple logic,

deeply grounded in this Court’s precedents, demon-

strates the correctness of the Court of Appeals’ decision

in this case.

B. In McGinnis, This Court Applied A Standard

Equal Protection Analysis That Is Inapplicable

To This Case Because the Principle of Incarcera-

tion Caused Directly By Lack of Wealth Was

Not At Stake.

Petitioner argues that McGinnis is the controlling pre-

cedent that should be applied to the present case, and

that the Washington Supreme Court’s decision rejecting

MacFarlane and Fogle’s claims is not “contrary to”

McGinnis. McGinnis, however, is not applicable to the

present case because McGinnis does not deal with a situa-

tion in which lack of wealth directly caused incarceration.

Petitioner concedes-that this Court in McGinnis did

not frame the issue as one of “disparate treatment of

indigent prisoners.” Petition for Writ of Certiorari, at 16. In

order to try to blunt the constitutional significance of this

fact, petitioner then goes on to claim that ” . . . the Court

in McGinnis was well aware that the good time differ-

ences at issue resulted in longer incarceration for those in

pretrial county jail custody because they could not make

bail.” This attempt to bootstrap McGinnis into a case

about lack of wealth causing incarceration must fail: This

Court could not have been “aware” that the good time

differences at issue in McGinnis resulted directly in extra

incarceration, because they did not do so.

Under New York’s “complex” sentencing system,

each state prisoner “received a series of release dates”

upon his arrival at prison. McGinnis, 410 U.S. at 265-66.

Each inmate has both a minimum parole date,

which is the earliest date on which he may be

paroled at the discretion of the Parole Board,

and a statutory release date which is the earliest

date he must be paroled by the Parole Board.

The minimum parole date is calculated .. . by

subtracting the greatest amount of good time

that can be earned (10 days per month) from the

minimum sentence of an indeterminate term.

The statutory release date is calculated .. . by

subtracting the greatest amount of good time

that can be earned (5 days per month) from the

maximum sentence of an indeterminate term.

McGinnis, 410 U.S. at 266 (footnotes omitted).

In McGinnis this Court reviewed a claim by New

York state prisoners regarding the denial of good time

credit toward their discretionary minimum parole date

under a system where parole was conditioned on a show-

ing of rehabilitation. And yet at the same time this Court

explicitly noted that under the New York sentencing stat-

utes the prisoners were eligible to receive good time credit

toward the prisoner’s maximum statutory release date:

While New York does deny good-time credit for

jail time in computing the minimum parole

date ..., it allows such credit in calculating the

statutory release date... .

McGinnis, 410 U.S. at 267 (italics added).

There was a denial of good time credit for pretrial

incarceration time towards the New York prisoners’ dis-

cretionary minimum parole date. But since parole in New

York was dependent upon a showing of rehabilitation,

there was no automatic causal relationship between the

denial of good time credit towards the minimum discre-

tionary parole date and having to serve a longer term of

imprisonment. Therefore, petitioner is in error in suggest-

ing that McGinnis is a case involving incarceration caused

directly by lack of wealth.

In contrast to the indeterminate New York sentencing

system with a parole component, where parole of the

prisoner was dependent upon a showing of rehabilita-

tion, the respondents here were sentenced under a wholly

determinate sentencing scheme in which the length of

sentences are known from the outset. Since the enactment

in 1984 of the Sentencing Reform Act (“SRA”), Washing-

ton State has employed this determinate sentencing system

in which rehabilitation is completely irrelevant and there

is no such thing as parole.

“Before the enactment of the SRA, the [Washington]

Legislature adhered to a policy that actual time of

imprisonment was best determined by the [Parole]

Board.” In re Myers, 105 Wn.2d 257, 262, 714 P.2d 303

(1986). The system was “rehabilitation oriented, with

broad discretion given to the Board of Prison terms and

Paroles to fix minimum terms according to a wide rang-

ing set of factors.” In re Whitesel, 111 Wn.2d 621, 626, 763

P.2d 199 (1988) (footnotes omitted). Accord, State v. Barnes,

117 Wn.2d 701, 711, 818 P.2d 1088 (1991).

That old sentencing system was akin to the indeter-

minate component of the New York sentencing system at

issue in McGinnis. But the Washington Parole Board was

phased out and ceased to exist after 1988. Myers, 105-

Wn.2d at 262. The new determinate sentencing system

was created, with a shift “from rehabilitation to propor-

tionality, equality and justice.” Id. at 710. Since 1984 reha-

bilitation has been irrelevant to the determination of the

length of a prison sentence in Washington State. Id. at

711.

Under the determinate sentencing system, a Wash-

ington State prisoner has no uncertainty about when he

will be released. Under a rehabilitation-centered indeter-

minate system, such as the New York system at issue in

McGinnis, a prisoner might be paroled at some unknown

point in time, if the state parole board concludes that the

prisoner has made rehabilitative progress. Under Wash-

ington State’s determinate sentencing system, the length

of a prisoner’s sentence is fixed from the moment the

sentence is judicially imposed, and is completely

unaffected by rehabilitative efforts or results.

While the denial of the opportunity to earn an equal

amount of good conduct credit leads automatically to

more incarceration for prisoners like MacFarlane and

Fogle who could not afford to post bail in the trial court,

the financial inability to post bail of the McGinnis pris-

oners did not lead automatically to their having to serve

more time in prison.

10

The statutory release date, towards which New York

prisoners did earn good time credit for their presentence

jail incarceration time, is analogous to the determinate

sentences imposed upon Washington State prisoners such

as respondents Fogle and MacFarlane. For New York

prisoners who had been unable to secure pretrial release

due to an inability to post bail, the relationship between

denial of good time credit towards their statutory release

date was direct and automatic. Every day of good time

credit awarded automatically shortened by one day their

statutory release date. Since the New York prisoners did

receive good time credit for their pretrial detention time

towards their maximum statutory release date, there was

no incarceration penalty automatically imposed as a

result of their financial inability to post bail prior to trial.

Thus the issue present in MacFarlane and Fogle’s case

simply did not arise, and was not addressed by this

Court.

In McGinnis this Court relied on the fact that the New

York indeterminate sentencing system awarded good

time primarily for rehabilitative efforts, and that while

rehabilitative programs existed in the state prisons, they

generally did not exist in the local jails:

We note, further, that the distinction of which

appellees complain [between time served in a

local jail as a pretrial detainee and time served

after conviction and sentence in a state prison]

arose in the course of the State’s sensitive and

difficult effort to encourage for its prisoners

constructive future citizenship while avoiding

the danger of releasing them prematurely upon

society ....

== aE

f=

11

The Commissioner [of the New York Corrections

Department] defends this distinction by noting

that “state prisons differ from county jails with

respect to purpose, usage and availability of

facilities.” State prisons are “intended to have

rehabilitation as a prime purpose and the facili-

ties at these institutions are built and equipped

to serve this purpose.” The Commissioner cites

the presence at state prisons of “educational and

vocational services such as schools, facilities,

jobtraining programs and related activities.” . . .

We pass no judgment on the success or merits of

the State’s efforts, but note only that at state

prisons a serious rehabilitative program exists.

County jails, on the other hand, serve primarily

as detention centers.

McGinnis, 410 U.S. at 269-271.

This Court held that under a discretionary, indeter-

minate, rehabilitation-based parole system, “[t]hese sig-

nificant differences” between prisons and county jails

“afford[ed] the basis for a different treatment within a

constitutional framework.” Id. at 271.

As the statute and regulations contemplate state

evaluation of an inmate’s progress toward reha-

bilitation, in awarding good time, it is reason-

able not to award such time for pretrial

detention in a county jail where no systematic

rehabilitative programs exist and where the

prisoner’s conduct and performance are not

even observed and evaluated by the responsible

state prison officials. Further, it would hardly be

appropriate for the State to undertake in the

pretrial detention period programs to rehabili-

tate a man still clothed with a presumption of

innocence.

McGinnis, 410 U.S. at 272-73.

12

But these distinctions do not exist in Washington

State. Under the determinate sentencing system adopted

in 1984 by the enactment of the SRA, both jails and

prisons “serve primarily as detention centers,” and reha-

bilitation effort and progress is irrelevant to the length of

a prison sentence.

Since parole was conditioned upon a showing of

rehabilitation in New York, a delay in providing a parole

hearing at the minimum parole date would not lead

automatically to a longer sentence. For even if good time

credit for time served in local jails was credited towards

the minimum parole date, since parole was discretionary,

there was no guarantee that parole would actually be

granted on the minimum parole date. And since parole

was conditioned upon a showing of rehabilitation that

could not be made until the prisoners arrived in state

prisons where rehabilitative programs were offered, it

was unlikely that parole would be granted until after the

prisoner had spent a significant amount of time in a state

prison facility.

The rationale of McGinnis is completely inapplicable

in a state such as Washington where there is a determi-

nate sentencing system, there is no parole, and rehabilita-

tion is completely irrelevant to the question of when a

prisoner will be released from prison. In fact, in an earlier

decision the Washington Supreme Court specifically

rejected the relevance of McGinnis to good time calcula-

tion under Washington’s Sentencing Reform Act because

when considering prison sentences imposed under the

SRA “[rJehabilitation is irrelevant;” since it “does not rise

to the level of a substantial interest under the SRA it

cannot justify disparate treatment of offenders.” In re

— eee KJ[ESETETES-”--Ct~*s

13

Mota, 114 Wn.2d 465, 476, 788 P.2d 538 (1990). Thus the

state supreme court held in Mota that Washington pris-

oners must be eligible to earn good time credit for their

good conduct during the period of their pretrial deten-

tion in a county jail.

In sum, McGinnis may be the correct law to apply to

an equal protection challenge brought in an indetermi-

nate sentencing State where release from confinement

does not automatically occur on the minimum parole

eligibility date, and instead depends upon a discretionary

official determination that a sufficient showing of reha-

bilitation has been made. But McGinnis is not the correct

law to apply in a determinate sentencing State like Wash-

ington where release is automatic once a prisoner has

served his determinate sentence. McGinnis does not con-

trol an equal protection claim that the length of imprison-

ment has been increased solely because a pretrial

detainee’s lack of wealth made it impossible for him to

bail out of a county jail which did not permit pretrial

detainees to earn as much good time as might be earned

by a wealthier defendant who posted bail, was at liberty

during his pretrial stage, and who later served his entire

sentence in a state prison facility.

Ir MLB v. SLJ, 519 U.S. 102, 117 S. Ct. 555, 136

L.Ed.2a 473 (1996), this Court recently reaffirmed the

vitality of the holding of Bearden and it. antecedents. The

issue arose in the context of a civil case where the paren-

tal rights of a mother had been terminated by the trial

court. The question presented was whether the Four-

teenth Amendment required the State to accord the par-

ent access to an appeal which would have been available

“but for her inability to advance required costs.” MLB,

14

117 S. Ct. at 565. Relying upon Bearden this Court held it

unconstitutional to permit an indigent parent’s inability

to advance required appeal costs to have the automatic

effect of denying her the same type of appellate review

that a more affluent parent could obtain.

As we said in Bearden v. Georgia, 461 U.S. 660,

665, 103 S. Ct. 2064, 2068-2069, 76 L.Ed.2d 221

(1983), in the Court’s Griffin-line cases, “due

process and equal protection principles con-

verge.” The equal protection concern relates to

the legitimacy of fencing out would-be appel-

lants based solely on their inability to pay core

costs. [Citation omitted]. The due process con-

cern homes in on the essential unfairness of the

state ordered proceedings anterior to adverse

state action. [Citation omitted]. A “precise ratio-

nale” has not been composed [citation], because

cases of this order “cannot be resolved by resort

to easy slogans or pigeonhole analysis,” Bearden,

461 U.S. at 666, 103 S. Ct., at 2069.

MLB, 117 S. Ct. at 565.

Petitioner’s focus on the application in McGinnis of

the rational basis standard is precisely the type of

“pigeonhole analysis,” that Bearden and MLB rejected.

Petitioner would have this Court view this case simply as

a bail/good time case. Such an approach is inconsisten*

with MLB, where this Court recognized that even though

Bearden involved jail time imposed for inability to pay a

fine, its equal protection principle was applicable to a

situation where access to an appeal of a parental rights

termination order was blocked solely because the parent

couldn’t pay appeal costs.

15

Petitioner’s unconvincing attempt to place this case

and McGinnis into the same pigeonhole is highlighted by

petitioner’s own concession that this Court’s McGinnis

opinion did not frame the issue as one of disparate treat-

ment of indigent prisoners. Petition for Writ of Certiorari,

at 16. Thus petitioner effectively concedes that the Court

of Appeals was correct when it concluded that McGinnis

was not controlling:

McGinnis, however, decided 12 years before

Bearden, was not about indigency: although

appellees Royster and Rutherford appear to

have been unable to post bail because of indi-

gency, 410 U.S. at 266-67, the issue was not

framed as one of disparate treatment of indigent

prisoners, nor did the Supreme Court so analyze

it... . The petitioners here, as the Washington

Supreme Court recognized, explicitly claim an

equal protection violation based on their indi-

gency. This is not to say that the Supreme Court

in McGinnis could not have treated the case as

one about indigency and analyzed the issue in

~ this light, but it did not do so and, theretcre, is

not on point. It is probably for that reason thet

the Supreme Court did not mention McGinnis

when it decided Bearden.

MacFarlane v. Walter, 179 F.3d at 1140, n.11.

This is not to say that McGinnis is not relevant to

some cases involving equal protection challenges to dis-

parate good time credit treatment of subclasses o: pris-

oners. For example, an equal protection challenge to a

policy of giving more good time credit to prisoners con-

victed of property offenses, than to those convicted of

violent crimes against persons, would be governed by the

16

McGinnis rational basis standard. On the other hand, an

equal protection challenge to a policy of allowing pris-

oners of one race to earn good time credit, while denying

good time credit to prisoners of a different race, would

trigger strict scrutiny, and clearly would not be governed

by McGinnis.

In sum, there is no conflict between Bearden and

McGinnis, nor is there any conflict between the decision

below and McGinnis. Thus there is no reason to exercise

the extraordinary power of certiorari to review the deci-

sion below.

2. THIS CASE IS NOT LIKELY TO BE AFFECTED BY

THIS COURT’S DECISION IN WILLIAMS v. TAY-

LOR

Petitioner claims that “[t]his case will be directly

affected by any decision this Court renders in Williams v.

Taylor,” cert. granted, 119 S. Ct. 1753 (1999). Petition for

Writ of Certiorari, at 10. Respondents respectfully submit

that this is not so. While this Court’s decision in Williams

certainly will resolve some issues regarding the proper

construction of statutory language contained in 28 U.S.C.

Section 2254(d), the Williams decision is unlikely to either

control or provide any significant guidance as to how this

case should be decided.

28 U.S.C. Section 2254(d)(1) piovides that a writ of

habeas corpus shall not be granted to a person in custody

pursuant to a state court judgment unless the federal

habeas court finds that the state court decision was “con-

trary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

17

Supreme Court of the United States.” The first question

presented in Williams involves the degree of similarity

that must exist between a Supreme Court precedent and a

habeas petitioner’s case, such that the precedent may be

viewed as a “clearly established” and “contrary”

Supreme Court precedent. That question reads:

Did the Fourth Circuit err in concluding that,

under 28 U.S.C. Section 2254(d)(1), state habeas

court’s decision to deny federal constitutional

. claim cannot be “contrary to” clearly established

federal law unless it is in “square conflict” with

decision of this court that is “controlling as to

law and fact”?

65 Crim. L. Rep. 2001 (April 7, 1999).

The Fourth Circuit has ruled that a decision is “con-

trary to” Supreme Court precedent only when “either

through a decision of pure law or application of facts

indistinguishable in any material way from those on the

basis of which the precedent was decided, that decision

reaches a legal conclusion or a result opposite to and

irreconcilable with that reached in the precedent which

addresses the identical issue.” Green v. French, 143 F.3d

865, 870 (4th Cir. 1998) (italics added). The panel in

Williams specifically relied upon the Green construction of

Section 2254(d)(1) when it denied relief to the habeas

petitioner. Williams v. Taylor, 163 F.3d 860, 865 (4th Cir.

1998).

The Williams petitioner presented a Sixth Amend-

ment ineffective assistance of counsel claim, and argued

that the state court's rejection of his claim was contrary to

this Court’s decision in Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Of course the

18

facts of Strickland were not absolutely identical to the facts

of petitioner Williams’ case. Finding an insufficient

degree of factual identity between the facts of Williams

and Strickland, the Fourth Circuit cursorily decided that

Williams was not entitled to any relief under the “con-

trary to . . . clearly established Federal law” portion of

Section 2254(d)(1).2_

Even if this Court were to adopt the Fourth Circuit's

view that a Supreme Court precedent must involve facts

which are not materially different from those presented

by a state prisoner seeking federal habeas corpus relief,

2 If absolute factual identity were required before any state

prisoner seeking habeas relief could prevail in a federal court,

then virtually no case would ever be able to qualify for a grant

of habeas relief under the “contrary to” portion of Section

2254(d). Respondents MacFarlane and Fogle respectfully submit

that the Ninth Circuit was correct when it rejected such a

“absolute factual identity” construction of the “contrary to”

portion of Section 2254(d)(1): “If that were the standard,

however, hardly any law would be ‘clearly established,’ for only

cases presenting precisely the same facts could govern later

cases.” MacFarlane v. Walter, 179 F.3d 1131, 1138 (9th Cir. 1999).

Moreover, this Court has held in other contexts that a precedent

is “clearly established” if it compels a particular result, even

though the facts of the precedent may not be identical to the

facts of the case before the court. See Wright v. West, 505 U.S. 277,

304, 112 S. Ct. 2482, 120 L.Ed.2d 225 (1992) (O’Connor, J.,

concurring) (applying existing precedent to a different set of

facts in a habeas case is not a “new rule” if the factual

differences do not change the force with which the precedent’s

underlying principle applies); Anderson v. Creighton, 483 U.S.

635, 640, 107 S. Ct. 3034, 97 L.Ed.2d 523 (1987) (rejecting notion

that a right can be clearly established for qualified immunity

purposes only if “the very action in question has previously

been held unlawful.”)

19

that would not change the result in this case because the

material facts in this case are not different from the mate-

rial facts in Bearden.

The materials facts of this case are those identified by

the Court of Appeals below: a poor person, solely by

reason of his indigency, faces more incarceration than a

similarly situated affluent person. This was true of

respondents MacFarlane and Fogle. This was also true of

petitioner Bearden. Since the material facts of this case

and the Bearden case are identical, the result in this case

will not change even if this Court affirms the Fourth

Circuit in Williams and adopts the Fourth Circuit’s test for

determining when a state court decision is “contrary to” a

“clearly established” precedent of this Court. If this Court

rejects the Fourth Circuit’s test in favor of some less

stringent test for determining when a state court decision

is “contrary to” a clearly established precedent of this

Court, that also would have no effect on the decision in

this case. :

The remaining “questions presented” in Williams con-

cern a claim of ineffective assistance of counsel, and the

proper interpretation of the phrase “unreasonable appli-

cation of” clearly established federal law.* The present

3 The third question presented in Williams reads:

Did the Fourth Circuit err in concluding that, under

28 U.S.C. Section 2254(d)(1), state habeas court’s

decision to deny federal constitutional! claim cannot

involve “unreasonable application of” clearly

established federal law unless state court’s decision is

predicated on interpretation or application of

20

case does not involve any claim of ineffective assistance

of counsel. Nor does it involve any construction of the

“unreasonable application” portion of Section 2254(d)(1).

In the present case the Court of Appeals expressly

declined to address the issue of whether the state court’s

denial of relief was “an unreasonable application of”

Supreme Court precedent, because it was wholly unnec-

essary to address that question. Although recognizing

that there might be some overlap between the “contrary

to” and the “unreasonable application of” provisions, the

Court of Appeals found it unnecessary to decide whether

the Washington State Supreme Court’s decision fell into

Section 2254(d)(1)’s second category of cases where relief

may be granted, as well as the first.

The Washington Supreme Court’s failure to

apply Bearden, and its resultant decision that the

county jails’ good-conduct policies did not vio-

late equal protection, was “contrary to...

clearly established . . . Federal law” within the

meaning of 28 U.S.C. § 2254(d). Such a failure to

identify or apply the governing Supreme Court

standard unquestionably falls within the “con-

trary to” provision of AEDPA. [Citation omit-

ted]. ... We... have not sought to draw a rigid

distinction between the “contrary to” and

“unreasonable application of” provisions, both

of which reflect the same general requirement

that federal courts not disturb state court deter-

minations unless the state court has failed to

follow the law as explicated by the Supreme _

relevant precedent that “reasonable jurists would all

gree is unreasonable”?

65 Crim. L. Rep. 2001 (April 7, 1999).

21

Court. Indeed, we have stated that there is an

overlap in the scope of the two provisions.

[Citation]. Again, however, because the “con-

trary to” provision is clearly met, we need not

consider whether such an overlap exists.

MacFarlane v. Walter, 179 F.3d at 1142 (italics added).

In sum, it is unlikely that this Court’s decision in

Williams would have any impact on this case. Of course it

is always possible that this Court could decide, or com-

ment upon, related questions pertaining to the proper

construction of Section 2254(d)(1) which are not set forth

in the Williams certiorari petition. But only in the event

that this Court radically narrowed the availability of fed-

eral habeas relief to state prisoners, in a way that has not

been suggested by any lower federal court, would Wil-

liams be likely to affect the outcome of this case. In that

unlikely event, this Court might consider the option of

granting certiorari, vacating the judgment below, and

remanding for reconsideration in light of its Weélliams

decision. But there would be no need for this Court to

grant certiorari in order to retain this case, so that this

Court could repeat whatever holding it decides to render

in the Williams case.

CONCLUSION

The Bearden principle that incarceration cannot be

imposed solely because the prisoner does not have the

money necessary to secure his freedom is fully applicable

to this case. The holding of McGinnis, is that it is rational

to delay the holding of a parole hearing which might

Nn

22

result in release from confinement provided the prisoner

makes a showing of rehabilitation, until the prisoner has

had the opportunity to participate in rehabilitative pro-

grams. That holding has no application at all to the

present case. Since Bearden, and not McGinnis, is the

controlling “clearly established Federal Law” set down

by this Court, there was no error committed by the court

below, and there is no conflict between Bearden and

McGinnis that warrants resolution by this Court.

This Court has many times declared that its certiorari

jurisdiction is to be exercised sparingly, and only in cases

of peculiar gravity and general importance. Hamilton

Brown Shoe Company v. Wolf Brothers & Company, 240 U.S.

251, 36 S. Ct. 269, 60 L.Ed. 629 (1916). Given that only one

of the two county jails in these consolidated cases is still

adhering to a differential good time credit policy that

denies inmates the opportunity to earn the same amount

of good time credit as that which exists in the state

prisons, this case hardly seems like one which involves a

legal dispute of national importance.

23

Accordingly, respondents suggest that the Court

should deny the petition for certiorari in this case.

Respectfully submitted,

James E. Lossenz*

CARNEY, BADLEY, SMITH &

SPELLMAN

701 Fifth Avenue

Seattle, WA 98104

(206) 622-8020

MEREDITH ROUNTREE

SCHONEMANN, ROUNTREE & OWEN

510 South Congress Avenue

Suite 308

Austin, TX 78704

(512) 320-0334

Counsel for Respondents

* Counsel of Record