Opposition Brief — Cain v. Wilkerson

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Supreme Court, US.

pie. FILED

.

= \ SEP 15 2003

No. 03-238 OFFICE OF THE CLERK

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_ ee as

; In The

Supreme Court of the Anited States

@

BURL CAIN, TOM NORRIS, RICHARD PEABODY,

MAJOR R. RACHAL, COLONEL SAM SMITH

and MAJOR PAUL J. MEYERS,

Petitioners,

Vv.

ROBERT KING WILKERSON, ALBERT WOODFOX,

and HERMAN WALLACE,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

&

-

RESPONDENTS’ BRIEF IN OPPOSITION

*

v

THOMAS W. MILLINER*

Cooperating Attorney

ACLU FOUNDATION OF LOUISIANA

One Canal Place, Suite 2800

365 Canal Street

New Orleans, LA 70130

(504) 524-5297

CHARLES DELBAUM

General Counsel

ACLU FOUNDATION OF LOUISIANA

144 Elks Place

New Orleans, LA 70112

(504) 529-1000

Counsel for Respondents

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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REASONS FOR DENYING THE WRIT.................... 1

Fe ives reihaa i bisiniiccdasiinnenniiiaulanm eae 2

I. THERE IS NO SPLIT IN THE CIRCUITS AS

TO THE PROPER INTERPRETATION OF

A. Sandin’s “sliding scale” analysis................. 3

B. The Second and Third Circuit decisions

cited by the prison officials were decided

within Sandin’s “sliding scale” framework.... 5

C. The Seventh, Eighth, Tenth and D.C. Cir-

cuit decisions cited by the prison officials

were decided within Sandin’s “sliding

I FETS, sacsienscenstonserssansescsvexnevereosons 6

II. THIS COURT SHOULD REJECT THE

PRISON OFFICIALS’ PLEA TO RETURN TO

THE HEWITT RULES-BASED APPROACH

WHICH THIS COURT ABANDONED IN

BEIT citevnisvivicnineisnicimannieenininaiaeiimnresvees 8

II. THE FIFTH CIRCUIT DID NOT TAKE SIDES’

PE GIES WE BE. <ivicnericrseroressosionsnsssnceseonsen 10

CE IIEY disevsicennivineisvessusavgcioneisinveunevonrenpresniass 12

TABLE OF AUTHORITIES

Page

CASES

A. SUPREME COURT

Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864 (1983) ....8, 9, 10

Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132

1.256. 2 415 (20GB). ocrvcssiensetnsncnnaiiioneiselannielaaaiaan passim

Young v. Harper, 520 U.S. 148, 117 S.Ct. 1148, 137

Ls. BSd. STO ChOG 7 ) 0n<c<csseessnaniencinsnennpsaeneeaeaa 5

B. FEDERAL

Anderson v. Recore, 317 F.3d 194 (2nd Cir. 2008).............. 5

Cosco v. Uphoff, 195 F.3d 1221 (10th Cir. 1999),

cert. denied, 531 U.S. 1081, 121 S.Ct. 784, 148

L.Ed. 28 CBO (2062). vrvcessivivinesinienniimaaamaaammammaiea 7

Frazier v. Coughlin, 81 F.3d 313 (2nd Cir. 1996) ............... 5

Hake v. Clarke, 91 F.3d 1129 (8th Cir. 1996)...................008 7

Hanks v. Wagner, 128 F.3d 1173 (7th Cir. 1997)................ 7

Hatch v. District of Columbia, 184 F.3d 846 (D.C.

Cit. 1900) ........:+00s:is::nsssnnnsviahaenaiaiaeaan 6,7

Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996).......... 8

Rowe v. Shake, 196 F.3d 778 (7th Cir. 1999) ...............seeeeee 7

Tellier v. Fields, 280 F.3d 69 (2nd Cir. 2000)................66. 5, 6

Torres v. Fauve, 292 F.3d 141 (3rd Cir. 2002)..................00 6

Wilkerson v. Cain, 233 F.3d 886 (5th Cir. 2000)................. 3

Wilkerson v. Maggio, 703 F.2d 909 (5th Cir. 1983)............. 3

iil

TABLE OF AUTHORITIES -— Continued

C. STATE

State v. Brewer, 301 So.2d 630 (La. 1974) ............cceeeeeeeeeees 3

1

REASONS FOR DENYING THE WRIT

The prison officials state that the sole question pre-

sented by their Petition is whether the Fifth Circuit was

correct in rejecting petitioners’ argument that Sandin v.

Conner’ added an additional prong (the “atypical and

significant hardship” inquiry) to the pre-existing liberty

interest analysis.”

The Fifth Circuit’s ruling does not raise the question

presented by the Petition. Instead, the Fifth Circuit's

narrowly drawn decision focused solely on whether the

inmates’ confinement in extended lockdown resulted from

their initial classification or from violations of prison

rules. The Court did not address how the Sandin analysis

applied to the inmates’ confinement.

The prison officials also attempt to create a circuit

split where no such split exists. The prison officials allege

that some circuits have interpreted Sandin by looking only

as to whether “atypical and significant hardship” exists

(the “replacement test”) whereas other circuits have

interpreted Sandin as requiring, in addition to “atypical

and significant hardship,” that the State create an enti-

tlement by mandatory language (the “additional prong”

test). The alleged circuit split rests upon prison officials’

misreading of Sandin and the circuit court decisions.

Sandin and the circuit court decisions do not employ

different tests for similar deprivations. Instead, Sandin

sets forth a “sliding scale” analysis which looks to the

nature of the deprivation and employs different tests

' 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

* Pet. ati.

2

depending upon the severity of the deprivation. All of the

decisions cited by the prison officials were decided within

the framework of Sandin’s “sliding scale” analysis.

Additionally, the prison officials urge this Court to

come full circle and re-embrace the rules-based approach

that this Court abandoned in Sandin. Rather than elimi-

nating the undesirable effects claimed by the prison

officials, a return to rules-based approach would resurrect

the problems that led this Court to decide Sandin in the

first place.

There is no circuit split and the Fifth Circuit did not

take sides in a circuit split even if such a split exists.

Respondents respectfully urge this Honorable Court to

deny the Petition for Writ of Certiorari.

te

v

FACTS

This case presents the extraordinary — and possibly

unique — circumstance of inmates being kept continuously

in extended lockdown for decades. Two of the plaintiffs,

Herman Wallace and Albert Woodfox, were placed in

extended lockdown in 1972 after the murder of a prison

guard. Wallace has remained continuously in extended

lockdown for the last thirty-one years. Woodfox has been

continuously in extended lockdown since 1972 except for a

thrée year period when he was incarcerated in a parish

jail. It appears likely that without judicial relief Wallace

and Woodfox will remain in extended lockdown for the rest

of their lives.

With regard to the third plaintiff, Robert Wilkerson,

the prison officials err at page four of their Petition where

3

they state that Wilkerson was placed in extended lock-

down for killing a fellow inmate. Wilkerson was first

placed in extended lockdown in May 1972 approximately

two weeks after his arrival at Angola.* Over a year later,

on September 14, 1973, Wilkerson was indicted for the

murder of a fellow inmate.‘ Wilkerson was convicted of the

murder and remained continuously in extended lockdown

until 2001 when he was released from prison after the

Fifth Circuit granted Wilkerson’s second habeas corpus

petition.’

I.

THERE IS NO SPLIT IN THE CIRCUITS AS TO

THE PROPER INTERPRETATION OF SANDIN.

A. Sandin’s “sliding scale” analysis.

The prison officials have sought to create a circuit

split where no such split exists. The prison officials allege

that some circuits have interpreted Sandin by looking only

as to whether “atypical and significant hardship” exists

(the “replacement test”) whereas other circuits have

interpreted Sandin as requiring, in addition to “atypical

and significant hardship,” that the State create an enti-

tlement by mandatory language (the “additional prong”

test).

* Wilkerson v. Maggio, 703 F.2d 909 (5th Cir. 1983).

* State v. Brewer, 301 So.2d 630 (La. 1974).

* Wilkerson v. Cain, 233 F.3d 886, 889 (5th Cir. 2000) (A successive

habeas corpus petition will be granted only if the petitioner can prove

that he is “actually innocent” of the crime of conviction).

+

The alleged circuit split rests upon the prison officials’

misreading of Sandin and the circuit court decisions.

Sandin and the circuit court decisions do not employ

different tests for similar deprivations. Instead, Sandin

sets forth a “sliding scale” analysis which looks to the

nature of the deprivation and employs different tests

depending upon the severity of the deprivation:

Level 1. Deprivations that are not severe or are

closely related to the original terms of confine-

ment will not be considered as impinging upon a

liberty interest even though state law or regula-

tions may contain “mandatory language.”

Sandin, 515 U.S. at 481, 482, 115 S.Ct. at 2297,

2298.

Level 2. Deprivations that impose “atypical and

significant hardship on the inmate in relation to

the ordinary incidents of prison life” may be con-

sidered as impinging upon a liberty interest pro-

vided that state law creates a liberty interest.

Sandin, 515 U.S. at 479, 115 U.S. at 2300.

Level 3. Deprivations that are so severe that

they exceed the inmate’s sentence “in such an

unexpected manner as to give rise protection by

the Due Process Clause of [their] own force” give

rise to a liberty interest irrespective of state law.

Sandin, 515 U.S. at 479-80, n.4, 484, 115 S.Ct. at

2297, n.4, 2300.

No decision cited by the prison officials acknowledges

a circuit split. In order to give the impression of a circuit

split, the prison officials quote isolated portions of various

decisions without analyzing the bases upon which the

circuits made their respective decisions. An analysis of the

courts’ actual rulings discloses no such split and that the

A See ae,

5

circuits are faithfully following Sandin’s “sliding scale”

analysis.

B. The Second and Third Circuit decisions cited

by the prison officials were decided within

Sandin’s “sliding scale” framework.

The Second and Third Circuit decisions cited by the

prison officials are either nct applicable at all or can be

categorized as Level 1, Level 2 or Level 3 deprivations

within Sandin’s “sliding scale” framework.°

In Frazier v. Coughlin,’ the Second Circuit determined

that the inmate failed to demonstrate a significant depri-

vation of a liberty interest because he did not show that

his confinement in a segregated housing unit for twelve

days was “dramatically different from the ‘basic conditions

of [his] indeterminate sentence.’”* This was a Level 1

deprivation because it did not constitute “atypical and

significant hardship” even if state law or regulations

contained mandatory language.

Tellier v. Fields’ was a Level 2 case. The Second

Circuit found that the inmate could establish a liberty

* One Second Circuit decision cited by the prison officials is

completely inapposite to the present case. Anderson v. Recore, 317 F.3d

194 (2nd Cir. 2003). In that case the State revoked an inmate’s tempo-

rary release status and reincarcerated him without a hearing. The

Second Circuit held with regard to work release programs, this Court’s

decision in Young v. Harper, 520 U.S. 143, 117 S.Ct. 1148, 137 L.Ed. 270

(1997) had supplanted the Sandin analysis.

” 81 F.3d 313 (2nd Cir. 1996).

* Id. at 317.

* 280 F.3d 69 (2nd Cir. 2000).

6

interest because “a confinement of 514 days under condi-

tions that differ markedly from those in the general

population” was “atypical and significant.”” The Second

Circuit also found that the inmate was entitled to the

process required by the language of the Code of Federal

Regulations.”

Torres v. Fauve” was a Level 1 case where the Third

Circuit held that 15 days in disciplinary detention and 120

days in “administrative segregation” was not “the type of

atypical, significant deprivation in which a State might

conceivably create a liberty interest.””

C. The Seventh, Eighth, Tenth and D.C. Circuit

decisions cited by the prison officials were de-

cided within Sandin’s “sliding scale” frame-

work.

All of the Seventh, Eighth, Tenth and D.C. Circuit

decisions cited by the prison officials either did not involve

liberty interests or can be categorized as Level 1, Level 2

or Level 3 deprivations within Sandin’s “sliding scale”

framework.

Hatch v. District of Columbia“ presented the issue as

to whether a seven month confinement in administrative

segregation constituted a Level 1 or Level 2 deprivation.

” Id. at 80.

* Id. at 81.

* 292 F.3d 141 (3rd Cir. 2002).

* Id. at 151, citing Sandin, 515 U.S. at 486, 115 S.Ct. at 2293.

“ 184 F.3d 846 (D.C. Cir. 1999).

7

The D.C. Circuit held that the District of Columbia regula-

tions limited official discretion to place prisoners in segre-

gative confinement. However, the Court remanded the

case for a determination as to the appropriate baseline to

evaluate whether the inmate’s administrative segregation

constituted “atypical and significant hardship.””

The two Seventh Circuit decisions cited by the prison

officials concerned Level 1 deprivations. Rowe v. Shake”

concerned alleged delays in incoming mail to a prisoner.

The Court ruled that no liberty interest was involved

based on Sandin’s holding that regulations alone cannot

amount to a deprivation of liberty. In Hanks v. Wagner”

the Seventh Circuit ruled that a transfer to another prison

within the State did not constitute a deprivation of lib-

erty. 18

In Hake v. Clarke,” an inmate claimed that he was

unconstitutionally denied a transfer from minimum

security to community custody. Inasmuch as the district

court decision had been rendered prior to Sandin, the

Eighth Circuit simply remanded the case for “an analysis

of Sandin.””

Neither. of the Tenth Circuit decisions cited by the

prison officials involved liberty interests. In Cosco uv.

* Id. at 858.

* 196 F.3d 778 (7th Cir. 1999).

128 F.3d 1173 (7th Cir. 1997).

” Id. at 1174.

* 91 F.3d 1129 (8th Cir. 1996).

* Id. at 1132.

8

Uphoff,” the plaintiffs asserted that the mandatory

language in regulations governing what prisoners could

keep in their cells created a property interest; they made

no allegation as to any impingement of their liberty

interests.” In Riddle v. Mondragon,” sex offenders com-

plained that they were not included in certain programs

such as “minimum” custody release, work release and

community corrections. The Tenth Circuit held that the

failure to include sex offenders within the challenged

policies should be analyzed as a denial of equal protection,

not as a denial of due process under Sandin.™

Il.

THIS COURT SHOULD REJECT THE

PRISON OFFICIALS’ PLEA TO RETURN TO

THE HEWITT RULES-BASED APPROACH

WHICH THIS COURT ABANDONED IN SANDIN.

Prior to Sandin the courts looked to the language of

state regulations to determine whether they bestowed an

entitlement.” This Court noted that in Sandin that such a

“rules-based” approach had negative consequences:

By shifting the focus of the liberty interest in-

quiry to one based on the language of a particu-

lar regulation, and not the nature of the

* 195 F.3d 1221 (10th Cir. 1999), cert. denied, 531 U.S. 1081, 121

S.Ct. 784, 148 L.Ed.2d 680 (2001).

* Id. at 1222.

* 83 F.3d 1197 (10th Cir. 1996).

“ Id. at 1206.

* Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864 (1983).

9

deprivation, the Court encouraged prisoners to

comb regulations in search of mandatory lan-

guage on which to base entitlements to various

state-conferred privileges.

* * *

Hewitt has produced at least two undesirable ef-

fects. First, it creates disincentives for States to

codify prison management procedures in the in-

terest of uniform treatment... States may avoid

creation of “liberty” interests by having scarcely

any regulations, or by conferring standardless

discretion on correctional personnel.

Second, the Hewitt approach has led to the in-

volvement of federal courts in the day-to-day

management of prisons, often squandering judi-

cial resources with little off-setting benefit to

anyone.

Sandin, U.S. at 480-82, 115 S.Ct. at 2299-2300.

Ironically, the prison officials here urge this Court to

return to the Hewitt rules-based analysis:

the “additional prong” theory advanced by the

prison officials allows the courts to resolve the

inmates’ procedural due process claims by exam-

ining the 2 short prison rules identified by the |

inmates as the source of their liberty interest in

release from lockdown.”

Thus, the prison officials urge this Court to come full

circle and re-embrace the rules-based approach which this

Court abandoned in Sandin. Rather than eliminating the

* Pet. p. 17.

10

undesirable effects claimed by the prison officials, a return

to Hewitt’s rules-based approach would resurrect the

problems that led this Court to decide Sandin in the first

place.

ITI.

THE FiFTH CIRCUIT DID NOT TAKE

SIDES IN A CIRCUIT SPLIT.

The Fifth Circuit took no definitive position as to how

Sandin applied in the present case. Although the Court

affirmed the district court’s order denying the prison

officials’ Motion to Dismiss, it was on the basis that the

Court could not determine whether the inmates asserted

sufficient facts that would give rise to a denial of a liberty

interest. The Fifth Circuit held that the district court must

first determine whether the inmates’ confinement in

extended lockdown resulted from their initial classification

or from violations of prison rules:

In resolving the nature of the liberty interest and

the process that is due for confinement of prison-

ers in extended lockdown under these circum-

stances, it is crucial to know whether, based on

their crimes of conviction, the inmates’ confine-

ment is the result of an initial classification by

prison officials as opposed to confinement for vio-

lations of less serious prison disciplinary rules.”

The Fifth Circuit took no position as to whether the

Sandin test applied in the present case. The Court simply

held that:

* Pet., App. A at 8.

11

if the inmates confinement in extended lockdown

is not the result of their initial classification, the

Sandin test would be triggered.”

Since the focus of the Fifth Circuit’s decision was

whether the inmates’ confinement in extended lockdown

resulted from their initial classification or from violations

of prison rules, the Court did not address the nature of the

deprivation itself nor did it rule as to how the deprivation

should fit in the Sandin analysis. Therefore, the Fifth

Circuit did not take sides in a circuit split even if such a

split exists.

5

* Pet., App. A at 9.

12

CONCLUSION

For all of the foregoing reasons, Respondents respect-

fully request that this Honorable Court deny the Petition.

Respectfully submitted,

THOMAS W. MILLINER*

Cooperating Attorney

ACLU FOUNDATION OF LOUISIANA

One Canal Place, Suite 2800

365 Canal Street

New Orleans, LA 70130

(504) 524-5297

CHARLES DELBAUM

General Counsel

ACLU FOUNDATION OF LOUISIANA

144 Elks Place

New Orleans, LA 70112

(504) 529-1000

Counsel for Respondents

*Counsel of Record