# Opposition Brief — Cain v. Wilkerson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1975%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 966

## Text

———-_

Supreme Court, US.

pie. FILED

.

= \ SEP 15 2003
No. 03-238 OFFICE OF THE CLERK

|

_ 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
EE SE fasta tiverspsceipsereerioreecingnetinns i
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1975%3A2. Public record. Not legal advice.