Opposition Brief — Jones v. Keller

Supreme Court, U.S

FILED

9 MAR 14 2011

No. 10-804 LOFFICEOF THE CLERK

In the

Supreme Court of the United States

ALFORD JONES,

Petitioner,

.

ALVIN KELLER, SECRETARY OF THE DEPARTMENT OF

CORRECTION, AND MICHAEL CALLAHAN,

ADMINISTRATOR OF RUTHERFORD CORRECTIONAL

CENTER,

Respondents.

FAYE BROWN,

Petitioner,

ws

NoOrTH CAROLINA DEPARTMENT OF CORRECTION,

ALVIN KELLER, SECRETARY OF THE DEPARTMENT OF

YORRECTION, AND KENNETH ROYSTER,

SUPERINTENDENT OF RALEIGH CORRECTIONAL

CENTER FOR WOMEN,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of North Carolina

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ROY COOPER

ATTORNEY GENERAL Department of Justice

Robert C. Montgomery* Post Office Box 629

Special Deputy Attorney Raleigh, NC 27602-0629

General (919) 716-6500

rmont@ncdo) gov *Counsel of Record

QUESTIONS PRESENTED

1. Whether the North Carolina Supreme Court

erred by holding that petitioners’ due process rights

were not violated where they were not entitled under

state law to the application of good behavior credits

toward unconditional release.

2. Whether the North Carolina Supreme Court

erred by holding there was no ex post facto violation

where petitioners had never earned under state law

any good behavior credits toward unconditional

release.

TABLE OF CONTENTS

QUESTION PRESENTED .................... 1

g¥ UP one) wey ya fg yh * . il

ce 3 ae pea NaS ear en ar eee ea aS ]

REASONS WHY THE WRIT SHOULD

ES Se kar nee os aes bo a ee 12

I. JONES'S CONSTITUTIONAL RIGHTS WERE

NOT VIOLATED BECAUSE HE HAD

RECEIVED ALL AWARDS TO WHICH HE

WAS ENTITLED UNDER STATE LAW ..... 13

A. THE DECISION BELOW WAS IN ACCORDANCE

WitH THIS CouRT’s DUE PROCESS

B. THE DECISION BELOW WAS IN ACCORDANCE

WitH THIS CouRT’sS Ex Post Facto

JURISPRUDENCE .............-0.-e000s 19

Il. THE DECISION OF THE NORTH

CAROLINA SUPREME COURT DOES NOT

CONFLICT WITH DECISIONS OF OTHER

NMS 9-5 6 oak od a ee 21

Ill. THE ISSUES RAISED ARE NOT OF

NATIONWIDE IMPORTANCE ............ 24

Spa ce oo ee es ee ee 25

TABLE OF AUTHORITIES

CASES

~]

Brown v. N.C. Dep't of Corr., 697 S.E.2d 32

ee ee ce a ee eee een 10

Collins v. Youngblood, 497 U.S. 37 (1990) ... 19, 20

Hewitt v. Helms, 459 U.S. 460 (1983) .......... 14

Jones v. Keller, 698 S.E.2d 49 (N.C. 2010) ... passim

Lynce v. Mathis, 519 U.S. 433 (1997) .......... 20

Price v. Beck, 571 S.E.2d 247 (N.C. Ct. App.),

disc. rev. denied, 575 S.E.2d 26

ke a a ea 4

Raske v. Martinez, 876 F.2d 1496 (11th Cir.),

cert. denied, 493 U.S. 993 (1989) ....... 22, 23

Secretary v. Demby, 890 A.2d 310 (Md. 2006) ... 28

Smith v. Scott, 223 F.3d 1191

el ee ee) |) 23

State v. Bowden, 668 S.E.2d 107

(N.C. Ct. App. 2008) ........... 6, 7, 9, 16, 17

State v. Bowden, 683 S.E.2d 208 (N.C. 2009) .... 6

lV

Teague v. Quarterman, 482 F.3d 769

SNS, ED cepa a pee ee ea ee eda 22

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

RN id Seana Get nc toe gw aia wa ya eae 16

Wolff v. McDonnell, 418 U.S. 539 (1974) ....... 14

STATUTES

Pe As RA, SORE Mog dk ko ee wee 8,17

Packs, MeO, eel. SPARS fF occ a ew cans 6,7,8,16

POA. Sek eet. © 248-13 . sk i cs es ne 2,3

N.C. Gen. Stat. § 148-13(b) ............. icc Sem

SECONDARY SOURCES

5 N.C. Admin. Code 2B.0101 (1976) ............ 3

o N.C. Admin. Code 2B.0102 (1976) ............ 3

North Carolina Department of Correction,

Division of Prisons, Policies — Procedures,

Sentence Reduction Credits § .0110

State of North Carolina Department of Correction,

Division of Prisons, Policy and Procedure

ee era ok ee ean es oe eel 4

STATEMENT

For more than five decades, the North Carolina

Department of Correction (hereinafter “DOC”') has

acted consistently and in accordance with long-

standing state statutes and regulations by never using

good behavior credits to calculate unconditional

release dates for prisoners sentenced to life

imprisonment. Because the DOC Secretary has never

exercised the absolute discretion given him by statute

to apply credits to life prisoners for this purpose, even

those prisoners serving life sentences that must be

considered as eighty-year sentences have never been

awarded and are not entitled to reduction of their

unconditional release dates.

The North Carolina Supreme Court correctly found

under state law that Petitioner Alford Jones* — who

was sentenced to life imprisonment — has no state-

created right to have his good behavior credits used to

calculate his eligibility for unconditional release

inasmuch as “[n]lo regulation explicitly provides that

credits are to be used to calculate an unconditional

release date” for prisoners sentenced to life

imprisonment. Jones v. Keller, 698 S.E.2d 49, 57 (N.C.

1 +

For ease of reference, respondents throughout are

referred to collectively as “DOC.”

9

For clarity and to be consistent with the petition,

this brief in opposition refers only toJones However, the

argument also apphies to Petitioner Faye Brown's case.

9

a)

2010). As a result, the court further correctly held

that there was no due process or ex post facto

violation. This Court should not grant review.

1. Good Behavior Credits in North Carolina. In

1955, the North Carolina General Assembly

authorized the Secretary of DOC to establish rules and

regulations on “grades of prisoners, rewards and

privileges applicable to the .. . classification of

prisoners as an inducement to good conduct, [and]

allowances of time and privileges for good behavior.”

N.C. Gen. Stat. § 148-13 (1955). Pursuant to the

Secretary's absolute discretion, which remained

unchanged from 1955 through 1979, DOC

implemented policies and regulations regarding good

behavior credits.*

None of DOC’s policies regarding good behavior

credits was codified prior to 1976. (Pet. App. 97a)

However, DOC records show that prior to 1976 the

Secretary of DOC had utilized the same policy that

was later codified. (Pet. App. 98a) That codified

regulation, placed in the North Carolina

3

Under North Carolina law, good behavior credits

generally include credits for “good time,” “gain time,” and

“meritorious time.” Good time is awarded for good behavior

without infractions of inmate conduct rules, gain time is

awarded for work performed, and meritorious time may be

awarded for exemplary behavior.

3

Administrative Code, provided that “[a]jll inmate[{s],

including . . . those with life terms” would receive

“good time” credits “for acceptable behavior” and “{a]l]

inmates who perform work” would be allowed “gain

time.” 5 N.C. Admin. Code 2B.0101, 2B.0102 (1976).

(Pet. App. 177a)

The regulation did not specify the purposes for

which those credits were to be used. As to prisoners

with life sentences, DOC used the credits for the

purposes of custody promotions, parole eligibility, and

reduction of time to be served if there was a

commutation by the Governor. (Pet. App. 98a, 157a)

As to other prisoners, DOC also used the credits to

calculate unconditional release dates. (Pet. App. 128a-

130a)

In 1979, the North Carolina General Assembly

created a prospective, limited right to good time credit

for some prisoners who were sentenced under the “Fair

Sentencing Act.” See N.C. Gen. Stat. § 148-13 (1979).

Outside of the Fair Sentencing Act, no statute speaks

te the requirement that credits be given, how they are

to be used, or that any credit must be used to calculate

an earlier unconditional release.

As for prisoners sentenced for offenses committed

prior to the effective date of the Fair Sentencing Act,

N.C. Gen. Stat. § 148-13(b) continued to vest in the

Secretary of DOC the same absolute discretion he

“

previously had possessed as to good behavior credits.

Indeed, N.C. Gen. Stat. § 148-13(b) in no way required

the Secretary to grant good behavior credits toward an

unconditional release date or even to issue regulations

in that regard. See Price v. Beck, 571 S.E.2d 247, 250

(N.C. Ct. App.), disc. rev. denied, 575 S.E.2d 26 (N.C.

2002).

After the General Assembly in 1995 exempted

DOC from the rule-making provisions of the North

Carolina Administrative Procedure Act, DOC included

good behavior credits in its definition of “Sentence

Reduction Credits” that “applied to an inmate’s

sentence that reduce the amount of time to be served.”

North Carolina Department of Correction, Division of

Prisons, Policies — Procedures, Sentence Reduction

Credits § .0110 (1995). Even so, the rule did not

require DOC to apply those credits for any specific

purpose to prisoners with life sentences.

In 2007, DOC again amended its rule. Although

the rule continues to provide that good behavior

credits are sentence reduction credits, it was amended

to state: “For inmates sentenced under the Fair

Sentencing Act, Good Time reduces the time required

to be served for unconditional release from prison.”

State of North Carolina Department of Correction,

Division of Prisons, Policy and Procedure § .0110(a)

(2007). (Pet. App. 200a-201la) This appears to be the

o

first and only mention of “unconditional release” in

DOC regulations.

Throughout all the amendments to its regulations

and rules, DOC has credited all prisoners including

those with life sentences with good behavior credits.

For those with life sentences, consistent with the

discretion given to the DOC Secretary, those»credits

have been awarded for the limited purppses of

reducing the time required to become eligrble for

custody promotion or parole eligibility or in case of

sentence commutation by the Governor. (Pet. App.

13la, 140a, 146a-147a) Policies and rules also were

applied to allow prisoners with life sentences to

accumulate gain or merit time credits which, in

addition to good time credits, would be applied only in

the event of such commutation. (Pet. App. 97a-100a,

102a, 104a, 139a-140a)

In 2005, inmate Bobby Bowden filed a petition in

state court alleging that he should be released from

prison unconditionally because his life sentence

imposed for a murder committed in 1975 was by

statute an eighty-year sentence and because the

application of good behavior credits to that sentence

would have cut it by more than half. The North

Carolina Court of Appeals ultimately agreed with

6

Bowden that the version of N.C. Gen. Stat. § 14-42‘ in

effect for offenses committed between April 8, 1974

and June 30, 1978 required that Bowden’s “life

sentence is considered as an 80-year sentence for all

purposes.” State v. Bowden, 668 S.E.2d 107, 110 (N.C.

Ct. App. 2008).°

The court in Bowden did not resolve the issue of

whether Bowden was entitled to immediate

unconditional release from prison, nor did it address

whether good behavior credits would even apply to the

calculation of his unconditional release date. Instead,

the court remanded “for a hearing to determine how

many sentence reduction credits defendant is eligible

to receive and how tiose credits are to be applied.” Id.

* The statute provided “Every person who shall be

convicted of any felony for which no specific punishment 1s

prescribed by statute shall be punished by fine, by

imprisonnient for a term not exceeding 10 years, or by both,

in the discretion of the court. A sentence of life

imprisonment shall be considered as a _ sentence of

imprisonment for a term of 80 years in the State’s prison.”

N C. Gen. Stat. § 14-42 (1974).

0

The North Carolina Supreme Court initially granted

review of the decision of the Court of Appeals, but it

subsequently found that review had been improvidently

granted. State v. Bowden, 683 S.E.2d 208 (N.C. 2009)

7

Initially, officials at DOC were uncertain as to the

effect of the decision in Bowden. (Pet. App. 115a-120a)

While considering the legal implication of the decision,

preparations were made in case any inmates were

ordered to be released. (Pet. App. 120a-123a)

Ultimately, DOC Secretary Alvin Keller directed —

in compliance with the decision in Bowden — that

unconditional release dates be calculated as eighty

years from the date of conviction for all inmates whose

crimes were committed between 1974 and 1978 when

the earlier version of N.C. Gen. Stat. § 14-42 was in

effect. (Pet. App. 103a, 107a-108a) Because the

decision in Bowden did not address good behavior

credits, Secretary Keller further directed that the

unconditional release dates for the Bowden group not

be reduced by use of good behavior credits. (Pet. App.

102a-103a, 135a-136a, 150a-152a) Although Secretary

Keller could have exercised the statutory discretion

conferred upon him by the state legislature to apply

good behavior credits to the unconditional release

dates, he declined to do so for inmates in the Bowden

group because he thought it appropriate that all

prisoners with life sentences should be treated

similarly in this respect and because he wanted to

continue North Carolina’s good public policy of

releasing prisoners with life sentences only under

parole supervision. (Pet. App. 104a, 119a-120a, 123a-

125a, 145a-146a, 152a)

8

2. Application of Good Behavior Credits to Jones.

In 1975, a jury found Jones guilty of first-degree

murder in the “cold-blooded killing” of William B.

Turner, Sr. (Pet. App. 52a, 66a) He was sentenced to

life imprisonment when his original death sentence

was vacated, and his life sentence has never been

modified or amended by the courts. (Pet. App. 53a,

157a)

Jones's life sentence was imposed for a murder he

committed during the time period when N.C. Gen.

Stat. § 14-2 provided that “[a] sentence of life

imprisonment shall be considered as a sentence of

imprisonment for a term of 80 years.” Recognizing the

eighty-year provision of N.C. Gen. Stat. § 14-42 in

effect for Jones’s crime, DOC utilized good time credits

earned by Jones in two ways: to determine his custody

classification; and to reduce the twenty years (one-

fourth of eighty years) he would have to serve before

being eligible for parole. (Pet. App. 158a-159a)

Although Jones became eligible for custody promotion

in 1982 and parole in 1986 as a result of the

application of good time credits, he was not promoted

to minimum custody until 1992 and the Parole Board

has denied him parole on numerous occasions. (Pet.

App. 159a)

In addition to applying good time as described

above, DOC gave Jones opportunities to earn other

good behavior credits denominated gain and merit

2

time. Gain and merit time earned by Jones was

recorded but never applied in any way. The times

were recorded in case Jones succeeded in persuading

the Governor to commute his sentence. If so, good,

gain, and merit time would be applied to calculate a

release date. (Pet. App. 98a, 102a, 156a-158a)

Prior to 2009, no expiration or release date for

Jones’s life sentence had been calculated by DOC.

Instead, agency records showed his release date as

“life” or “99/99/99” and time remaining to be served as

“99999.” (Pet. App. 157a-158a, 161a) Following the

decision in Bowden, DOC calculated Jones’s

unconditional release date as February 27, 2055. (Pet.

App. 161a)

3. Proceedings Below. On November 18, 2009,

Jones filed a petition in Superior Court claiming as

follows: (i) his lfe sentence was the same as a

sentence of eighty years because he committed the

murder 1n 1975; (11) by application of good behavior

credits, he had completed service of eighty years even

though he had been in prison for less than thirty-five

years; and (111) he was entitled to unconditional release

from prison. Following a hearing in Superior Court,

the court granted the petition. (Pet. App. 39a-66a)

10

The North Carolina Supreme Court reversed. (Pet.

App. la-32a°) Three justices joined in a plurality

opinion, two other justices filed a concurring opinion,

and two justices dissented. (Pet. App. la-32a)

After concluding that DOC had the authority

under state law to make and interpret its own

regulations concerning the application of good behavior

credits, the court considered whether Jones had been

deprived of his constitutional right to due process as

the result of DOC’s interpretation that he is not

entitled to application of the credits toward his

unconditional release date. The court, recognizing

that a liberty interest may be created through state

regulations, held that Jones “has not been denied

credits in which he has a constitutionally protected

liberty interest” because he “has received the awards

to which he is entitled for the purposes for which he is

entitled.” Jones, 698 S.E.2d at 55-56 (emphasis

added). This is so, the court concluded, because as to

prisoners with life sentences “[n]o regulation explicitly

provides that credits are to be used to calculate an

unconditional release date.” /d. at 57.

On the same day, the court filed its opinion in Brown

v. N C. Dep't of Corr.,697S E 2d 327 (N.C. 2010). The court

reversed the order of the trial court “[flor the reasons stated

in Jones v. Keller.”

1 |

The court also considered Jones’s contention that

an ex post facto violation had resulted from the failure

to unconditionally release him because “DOC’s

interpretation of its regulations has retroactively

increased the punishment for his offense after the

offense was committed.” /d. at 57. Recognizing that

legislation retroactively altering sentence reduction

credits in effect when a crime was committed can

amount to an ex post facto law, the court held there

was no ex post facto violation because Jones did “not

allege that any legislation or regulation has altered the

award of sentence reduction credits” and because DOC

had not “changed its interpretation of its applicable

regulations.” Jd. at 57.

The court did not reverse the trial court’s order as

a result of balancing any liberty interest Jones had

against public safety. Only after finding Jones had no

liberty interest at all because no state law required

application of good behavior credits to unconditional

release did the court even discuss whether any hberty

interest would be de minimis.

In his concurring opinion, Justice Newby further

explained the court’s decision. He first stated that by

its legislation in 1974 “the General Assembly never

abolished life sentences.” Jd. at 58 (Newby, J.,

concurring). He further found that because the

statutes and regulations governing good behavior

credits “make no attempt to set forth the specific

12

purposes for which time credits are to be applied,”

DOC’s interpretation that the statutes and regulations

do not require application of credits to calculate

unconditional release dates for life inmates was

reasonable and worthy of deference. As a result, he

concluded, “life inmates like Jones can claim no liberty

interest in having time credits applied to calculate

their unconditional release dates.” Id. at 59.

REASONS WHY THE WRIT

SHOULD BE DENIED

No statute or regulation in North Carolina has

ever explicitly given prisoners with a life sentence any

right to have good behavior credits applied to reduce

the date on which the prisoner must be

unconditionally released. To the extent that

regulations have stated that credits are to be awarded

to “all prisoners,” those regulations are ambiguous

because it is impossible for the credits to be used for

the reduction of unconditional release dates for some

prisoners. DOC’s consistent interpretation of the

regulations that good behavior credits are applied ina

limited way to prisoners with a life sentence is

eminently reasonable.

Without a doubt, life sentences imposed for murder

and other serious offenses committed between 1974

and 1978 must be treated as eighty-year sentences for

all purposes. But because there has never been a state

13

law requirement that prisoners with life sentences

have their good behavior credits used to reduce

unconditional release dates and because DOC has

reasonably interpreted its own regulations, the North

Carolina Supreme Court correctly held there was no

due process or ex post facto violation in this case.

I. JONES’S CONSTITUTIONAL RIGHTS WERE

NOT VIOLATED BECAUSE HE HAD

RECEIVED ALL AWARDS TO WHICH HE

WAS ENTITLED UNDER STATE LAW.

A. THE DECISION BELOW WAS IN ACCORDANCE

WitH THIS CouRT’S DUE PROCESS

JURISPRUDENCE.

Jones contends the North Carolina Supreme Court

erred by holding that his due process rights were not

violated because good time credits reducing his

unconditional release dates were “taken away.” (Pet.

App. 24a) Because no statute or regulation requires

application of good behavior credits to reduce the date

on which a prisoner with a life sentence must be

unconditionally released and because DOC’s

interpretation of its own regulations is reasonable and

lawful, the North Carolina Supreme Court correctly

concluded that under state law Jones had received all

the credits to which he was due. And because Jones

received all the credits to which he was due and

14

remains lawfully incarcerated, the court did not err by

holding that his due process rights were not violated.

“[A] State may create a liberty interest protected

by the Due Process Clause through its enactment of

certain statutory or regulatory measures.” Hewitt v.

Helms, 459 U.S. 460, 469 (1983). Although there is no

constitutional right to credit for good behavior while in

prison, an inmate has a cognizable liberty interest in

a shortened prison term resulting from the application

of good behavior credits under state law. Wolff v.

McDonnell, 418 U.S. 539, 557 (1974)

In this case, the North Carolina Supreme Court

held that Jones remains lawfully incarcerated because

“he has not been denied credits in which he has a

constitutionally protected liberty interest.” Jones, 698

S.E.2d at 56. It correctly based this decision on its

conclusion that under state law Jones was not entitled

to have his good behavior credits applied to his

unconditional release date.

No North Carolina statute has ever required DOC

to grant good behavior credits to Jones for any

purpose. Except for prisoners who were sentenced

under the Fair Sentencing Act — which Jones was not

— the state legislature has for the entire time in which

Jones has been imprisoned granted absolute discretion

to the DOC Secretary to provide for regulations related

to good behavior.

—"

> 8

Similarly, no North Carolina regulation has ever

explicitly required DOC to grant good behavior credits

to Jones for the specific purpose of calculating his

unconditional release date. Itis true that. pursuant to

the discretion given its Secretary, DOC has

implemented regulations that have made “falJll

inmate[s], including... those with life terms” eligible

for good time credits and “{a]ll inmates who perform

work” eligible for gain time credits. Absent any plain

language showing how those credits should be applied,

DOC from the first time those regulations were in

effect has interpreted them as applying in a hmuited

way to prisoners with life sentences. Specifically, DOC

has always interpreted the regulations as applying to

prisoners with life sentences only for the purposes of

custody grade and parole eligibility. DOC has never

interpreted them as enabling prisoners with life

sentences to obtain early release outside the context of

parole.

Jones, like other prisoners sentenced for the most

serious offenses committed between 1974 and 1978,

was sentenced to life imprisonment. Although North

Carolina law specified that his sentence be “considered

as a sentence for a term of 80 years,” DOC has always

treated Jones and the other prisoners sentenced to life

imprisonment during that period of time the same as

all other prisoners with life sentences — t.e., DOC has

always interpreted the regulations as applying te them

16

only for purposes of affecting their custody grade and

parole eligibility.

The primary issue in this case is whether, as a

state-law matter, DOC has lawfully interpreted its

own regulations, taking into account the deference

agencies are accorded when construing their own

regulations. See Thomas Jefferson Univ. v. Shalala,

512 U.S. 504, 512 (1994) (holding that an “agency’s

interpretation must be given controlling weight unless

it is plainly erroneous or inconsistent with the

regulation”) (quotation marks omitted). The answer is

yes — even if DOC had mistakenly thought (prior to

Bowden) that N.C. Gen. Stat. § 14-42 treats Jones’s

sentence as an eighty-year sentence only for limited

purposes. DOC’s interpretation of its own regulations

is not clearly erroneous nor inconsistent with the

regulations themselves.

The regulations at issue here are ambiguous, for

they apply on their face to inmates. serving

indeterminate life sentences even though credits could

never reduce the amount of time served by them (apart

from their impact on parole eligibility). Given that the

regulations’ language can be read to apply in that

particular way to some prisoners with life sentences,

their language can likewise be read to apply in that

particular way to the 1974-1978 prisoner with life

sentences.

17

To be sure, DOC could have treated the 1974-1978

prisoners the same way it treated other fixed-sentence

prisoners; but the plain language did not mandate that

route over the one DOC chose. For the Bowden group

of life prisoners, as noted above, “[n]o regulation

explicitly provides that credits are to be used to

calculate an unconditional release date.” Jones, 698

S.E.2d at 57.

Even though DOC Secretaries interpreted N.C.

Gen. Stat. § 14-2 for more than thirty years in a way

now found to be incorrect, the fact remains that no

Secretary has ever exercised the absolute discretion

given to him by statute to grant credits toward

unconditional release to inmates with life sentences,

including those sentenced from crimes committed

between 1974 and 1978. And the DOC Secretary has

declined to do so now.

It is true that some of the amendments made to

DOC rules long after Jones committed murder and

was sentenced for that murder provide that good

behavior credits are sentence reduction credits

“applied to an inmate’s sentence that reduce the

amount of time to be served.” Those versions of the

rules nevertheless do not provide that the credits must

be applied to life sentences.‘

The only mention of “unconditional release” in

DOC's regulations and rules appears in the 2007 version of

18

Because DOC’s interpretation of its own

ambiguous regulations was a reasonable and lawful

interpretation, the North Carolina Supreme Court

correctly held, as a state-law matter, that Jones “has

no State-created right to have his time credits used to

calculate his eligibility for unconditional release.” Zd.

at 56. The court’s holding that Jones has not been

denied his due process rights inevitably follows. His

sentence has not expired on account of good behavior

credits, and it therefore does not violate due process to

continue his incarceration.

Only after the North Carolina Supreme Court

correctly held that Jones had no liberty interest in the

application of good behavior credits to an

unconditional release date did the court address

whether a liberty interest, “if any,” would be de

minimis 1n comparison to the State’s interest. Jones,

698 S.E.2d at 56. It was while discussing this

DOC’s rule. The rule provides that “[fJor inmates sentenced

under the Fair Sentencing Act, Good Time reduces the time

required to be served for unconditional release from prison ”

State of North Carolina Department of Correction, Division

of Prisons, Policy and Procedure § 0110 (2007). (Pet. App.

200a) Jones was not sentenced under the Fair Sentencing

Act. But even for prisoners sentenced under the Fair

Sentencing Act, 1t would be impossible for good time credits

to be apphed to an inmate’s sentence of life imprisonment

for the purpose of reducing time to be served

19

baiancing that the court reiterated that Jones had “no

State-created right to have his time credits used to

calculate his eligibility for unconditional release.” Jd.

at 56. The concurring justices further made clear that

the basis for the decision of the court was not the

balancing of interests when they stated that “the

relevant statutes and regulations do not give inmates

sentenced to life imprisonment” the right to have good

behavior credits applied to their unconditional release

dates and that DOC has never “vested life inmates

with such a right through its manner of administering

those statutes and regulations.” Jd. at 59 (Newby, J.,

concurring). As a result, they found, “life inmates like

Jones can claim no liberty interest in having time

credits applied to calculate their unconditional release

date.” Jd. Where the Court correctly found, based on

state law, that no statute or regulation required

application of good behavior credits to the calculation

of Jones's unconditional release date, a finding that

any liberty interest was de minimis is of no

consequence.

B. THE DECISION BELOW WAS IN ACCORDANCE

WITH THIS CouRT’s Ex Post Facto

JURISPRUDENCE.

Jones also contends the North Carolina Supreme

Court erred by holding there was no ex post facto

violation because DOC’s interpretation of its

regulations has “inflict([ed] a greater punishment, than

20

the law annexed to the crime, when committed.”

Collins v. Youngblood, 497 U.S. 37, 42, (1990).

Because the North Carolina Supreme Court correctly

concluded that under state law petitioners had never

been awarded and had never earned credits toward

unconditional release, it also correctly held there was

no ex post facto violation in this case.

In Lynce v. Mathis, 519 U.S. 433 (1997), this Court

considered whether a Florida statute cancelling early

release credits for certain classes of offenders after

those credits had been awarded — indeed, even after

the inmates were released from custody — resulted in

an ex post facto violation. This Court held that the

statute unconstitutionally disadvantaged the prisoner

“because it resulted in his rearrest and prolonged his

imprisonment.” Id. at 446-47.

This case 1s distinguishable from Lynce. In Lynce,

the Florida legislature enacted a law providing for

early release credits, the credits in fact were awarded

to the prisoner, and he was released. The Florida

legislature actually enacted a law cancelling credits

already received by certain classes of offenders. By

contrast, in the present case no statute or regulation

requires prisoners such as Jones to receive good

behavior credits toward unconditional release. Such

credits never have been awarded to petitioners, who

have not been released, and the North Carolina

21

General Assembly has not enacted any law cancelling

credits already received by petitioners.

The North Carolina Supreme Court did not err in

its conclusion that there was no ex post facto violation

because DOC has not taken away from petitioners

anything already awarded or earned. The undisputed

facts show that DOC, pursuant to its discretionary

authority, has never awarded credits toward an

unconditional release date to prisoners with life

sentences. Nor has DOC changed its longstanding

interpretation of its regulations. Finally, DOC’s

interpretation of its regulations is reasonable and

lawful in light of the fact that none of the regulations

requires application of credits toward unconditional

release of life prisoners.

II. THE DECISION OF THE NORTH CAROLINA

SUPREME COURT DOES NOT CONFLICT

WITH DECISIONS OF OTHER COURTS.

Jones contends the North Carolina Supreme

Court’s decision is in conflict with decisions of other

courts. Specifically, he argues that “North Carolina is

now a dramatic outlier on the question of whether

States must honor sentence-reduction credits earned

and awarded under previously established regimes.”

(Pet. App. 29a-30a) Not so. All of the conflicts alleged

by Jones are based on his mistaken premise that DOC

officials violated the Due Process and Ex Post Facto

‘>

2

i

Clauses by depriving him of credits to which he was

entitled under state law. Because, as shown in Section

I, supra, they did not, the purported conflicts

evaporate.

As noted above, the North Carolina Supreme Court

held that petitioners’ constitutional due process rights

were not violated “[b]ecause Jones has received the

awards to which he is entitled.” Jones, 698 S.E.2d at

56. Only after concluding that under state law no

liberty interest had been created because petitioners

had not been awarded and had not earned good time

credits toward their unconditional release dates did

the court address whether any liberty interest would

be de minimis.

In most of the cases cited by petitioners in support

of their contention that the decision of the North

Carolina Supreme Court is an outlier, the courts found

prisoners were deprived of liberty interests when

credits previously awarded were rescinded or when

laws were amended in such a way that credits could no

longer be earned. See, e.g., Teague v. Quarterman, 482

F.3d 769, 778-80 (5th Cir. 2007) (rejecting concept of

de minimis due process violation where inmate was

“deprived of previously earned good-time credits”);

Raske v. Martinez, 876 F.2d 1496, 1502 (11th Cir.)

(finding there is no doctrine of “constitutional mistake”

that would justify the application of a modified statute

to limit gain time provided to a prisoner by an earlier

23

version of the statute), cert. denied, 493 U.S. 993

(1989); Secretary v. Demby, 890 A.2d 310, 331 (Md.

2006) (finding an ex post facto violation where credits

had not been revoked but an amendment toa law had

“curtailed the availability of future credits”). In this

case, as the North Carolina Supreme Court found, no

credits were rescinded or earned and no regulations

have been changed in such a way as to deprive

petitioners from any entitlement to credits toward

unconditional release.

Similarly, in Smith v. Scott, 223 F.3d 1191 (10th

Cir. 2000), a prisoner had credits deducted after being

informed that he had been mistakenly awarded them.

The court held there was an ex post facto violation

resulting from the deduction of the credits where a

1997 amendment to a rule was a substantive change

that was not foreseeable in 1992. In so holding, the

court noted that although an agency’s interpretation of

its own rules was entitled to due deference, “[a]n

agency's statement that an amendment is nothing

more than a clarification cannot be accepted as

conclusive because such a result would enable the

[agency] to make substantive changes in the guise of

clarification.” Jd. at 1195 (quotation marks omitted).

In this case, unlike in Smith, petitioners were

never awarded and never earned any credits that have

now been taken away. As argued above, DOC’s

interpretation of its own regulations is reasonable and

24

lawful where those regulations are ambiguous and

where none of the regulations has ever explicitly

provided for the application of credits to unconditional

release.

Petitioners have failed to show that the decision of

the North Carolina Supreme Court conflicts with

decisions of other courts. Unlike other decisions cited

by petitioners, the decision here did not involve any

retroactive rescission of credits or any modification or

reinterpretation of a regulation to the detriment of

petitioners because no state law ever required

application of good behavior credits for the purpose of

shortening a life prisoner’s time before unconditional

release.

II.THE ISSUES RAISED ARE NOT OF

NATIONWIDE IMPORTANCE.

Although Jones contends the North Carolina

Supreme Court has misinterpreted and misapplied

this Court’s decisions, he in essence is attacking the

court’s determination that under state law he was not

entitled to the application of his good behavior credits

to calculate an unconditional release date. As

demonstrated above, the court correctly held that no

state law required application of credits in sucha way.

That decision is not one of nationwide importance for

which this Court should grant review.

25

Jones was sentenced to hfe imprisonment after his

death sentence for a cold-blooded murder was vacated.

He has had and should continue to have opportunities

to be paroled. His assertion that he should be released

with no conditions less than halfway through the

eighty years he is required by state statute to serve 1s

nothing more than an attack on North Carolina law.

The North Carolina Supreme Court, the ultimate

authority on North Carolina law, correctly held that no

statute or regulation in North Carolina required

application of Jones’s good behavior credits to his

unconditional release date and that DOC’'s

interpretation of its own regulations was lawful.

There is no reason for this Court to review that.

decision.

CONCLUSION

The petition should be denied.

Respectfully submitted,

ROY COOPER

ATTORNEY GENERAL

Robert C. Montgomery*

Special Deputy Attorney General

March 2011 *Counsel of Record