Opposition Brief — Jones v. Wilson (No. 05-1618)

Supreme Court, U.S.

FILED

ORIGINAL

NO. 05-1618 } OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JUSTIN JONES, Director of the Oklahoma

Department of Corrections,

Petitioner,

Vv.

LARRY WILSON,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF OF LARRY WILSON IN OPPOSITION

Respectfully submitted,

RAYMOND P. MOORE

Federal Public Defender

HOWARD A. PINCUS

Assistant Federal Public Defender

Counsel of Record for Respondent

633 17th Street, Suite 1000

Denver, Colorado 80202

(303) 294-7002

TABLE OF CONTENTS

Or I sis a cites i

NINN ops vice cn eavcnencess tices had CIES Ce Senate 1

REASONS FOR DENYING THE WRIT

THIS COURT SHOULD DENY REVIEW BECAUSE THE

TENTH CIRCUIT CAREFULLY APPLIED THIS COURT’S

DECISION IN SANDIN V. CONNER AND BECAUSE THE

ISSUE INVOLVED IS NOT ONE OF ANY PRESSING

NEE is She eT ns eras cack bee Fa rA OWN Chea beusekes 5

A. The Tenth Circuit carefully applied Sandin and

reached a conclusion consistent with this Court's

PRUNE BBS Hered e as buseedacapeseneaceh wah eke sees 6

B. The petitioner’s other criticisms of the Tenth

Circuit’s opinion miss the point that, as this Court

indicated in Sandin, disqualification from earlier

release supports a liberty interest ................... 11

C. The decision in Malchi v. Thaler, which does not

address the aspects of Sandin that the Tenth Circuit

analyzed, and which simply announces its

conclusion, does not provide a good reason to grant

review on an issue that is not of pressing concern ..... 13

ek PPO Te TPT Teer eT ET TUR ETT TUTTE CET ECL Te 15

NT oie ins sh devnkess arth cevstiees fei 16

_TABLE OF AUTHORITIES

Pages

CASES

Gamble v. Calbone, 375 F.3d 1021 (10th Cir. 2004) 22.00... 00. ceece eee. 3

Malchi v. Thaler, 211 F.3d 953 (Sth Cir. 2000) ..........--.2--. eee. 13, 14

- Montgomery v. Anderson, .262 F.3d 641 (7th Cir. 2001) ................. 9

Sangin ¥, Cormer, DiS CS Gra Creed os vk cceccoccritecvesserces 3,6,7,8

Superintendent, Mass. Correctional Institution at Walpole v. Hill,

Pei RT.” FO a a a 3-4

Wilson v. Jones, 430 F.3d 1113 (10th Cir. 2005) ........ 1, 2,3, 4, 7,9, 11, 12

Wolff Ve DIGI AEG Ua OO COTE see escieccicveceevsverececes 10

il

INTRODUCTION

Larry Wilson’s “problem began with what seems an innocuous or

even laudable action.” Wilson v. Jones, 430 F.3d 1113, 1115 (10th Cir.

2005). He tried to use money in his mandatory-savings account at the

Oklahoma Department of Corrections to pay a state court the costs of

copying court documents he needed for post-conviction litigation. Id. Mr.

Wilson noted this purpose on his request to access his funds. Id. at1115- _

16. Oklahoma law permits the use of funds in mandatory-savings accounts

to pay fees or costs in a civil or criminal action, and requires clerks of the

district courts to charge fees for court-imposed costs and assessments. Id.

at 1115 (describing Oklahoma law).

Prison officials nevertheless accused Mr. Wilson, in a disciplinary

proceeding, with attempting to obtain money by false pretenses in

violation of state law. Id. Based seely on Mr. Wilson’s written request,

they adjudged him guilty of this Class ». misconduct. Id. at 1116.

As the petitioner admits, Petition for Writ of Certiorari (”Pet.”) at 6,

this conviction carried automatic penalties under state statute and prison

regulations that the prison officials had no ability to suspend. Mr. Wilson

was automatically demoted from level-four earning status, in which he had

been earning 44 credits a month -- credits that reduced his sentence day for

day -- to level-one earning status, in which “was statutorily ineligible to

earn any credits.” Wilson, 430 F.3d at 1116. After thirty days at level one,

he could potentially advance to level-two earning status, which enabled

him to earn 22 credits a month towards reducing his sentence. Id.; Pet. at 6.

But the misconduct conviction barred Mr. Wilson from irks placed in

either of the two higher levels, even if his conduct otherwise merited

advancement, for two years. Wilson, 430 F.3d at 1116; Pet. at 6.

Prison officials also revoked 180 days of Mr. Wilson's earned time

and ordered him to serve thirty days of disciplinary segregation. Wilson,

430 F.3d at 1116. This aspect of the punishment was suspended for ninety

days and, as Mr. Wilson had clear conduct for that period, was not applied.

Id.; Pet. at 6.

The Tenth Circuit determined Mr. Wilson had a liberty interest under

the Due Process Clause given the mandatory disqualification from earning

credits that reduced his sentence. The court stressed the automatic nature

of the disqualification, which allowed for no exercise of discretion by

prison officials. Wilson, 430 F.3d at 1116, 1120-21, 1123, 1124. It held that,

under Sandin v. Conner, 515 U.S. 472 (1995), there was the direct and

unattenuated effect on the duration of his sentence that supports a liberty

interest. Wilson, 430 F.3d at 1121.

In reaching this conclusion, the Tenth Circuit drew a contrast with

the situation in Sandin. The circuit observed that this Court had explained

that the misconduct conviction there did not require the denial of parole,

but was just one factor that officials could consider. Wilson, 430 F.3d at

1118 items Sandin, 515 U.S. at 487). The effect on the diieslieis of the

sentence was thus too attenuated and could not support a liberty interest.

Id. But here, because the misconduct conviction mandated action that

precluded the award of credits that would reduce Mr. Wilson's sentence,

there was the requisite direct impact on the length of his sentence. Id. at

1121.

The Tenth Circuit also concluded, based on its earlier decision in

Gamble v. Calbone, 375 F.3d 1021 (10th Cir. 2004), that the discipline could

not lawfully be imposed, and so there was insufficient evidence in the

record to support it. Wilson, 430 F.3d at 1123-24. The conviction therefore

did not comport with the due process under the test of Superintendent,

Mass. Correctional Institution at Walpole v. Hill, 472 U.S. 445 (1985).

Wilson, 430 F.3d at 1123.

By the time the Tenth Circuit’s decision was implemented, Mr.

Wilson was about to complete his sentence. His release, with good time

required by the decision, came just two days before his sentence was

otherwise set to expire.

REASONS FOR DENYING THE WRIT

THIS COURT SHOULD DENY REVIEW BECAUSE THE TENTH

CIRCUIT CAREFULLY APPLIED THIS COURT'S DECISION IN

SANDIN V. CONNER AND BECAUSE THE ISSUE INVOLVED IS NOT

ONE OF ANY PRESSING IMPORTANCE.

The petitioner maintains that this case involves the right to be in a

particular classification for earning credits iva early release. E.g., Pet.

at i, 3-4, 6,9, 13. He then asserts the Tenth Circuit decided this qualified as

a liberty interest by looking for mandatory language in state regulations.

Id. at 12. From these premises, the petitioner concludes the Tenth Circuit

ran afou! of this Court's decision in Sandin v. Conner.

The petitioner has distorted both the issue and the Tenth Circuit's

approach. This case does not involve an assignment to an earning status

that can depend on a range of factors, and that arises from the exercise of

official discretion. Instead, this case involves the automatic disqualification

from higher earning levels because of a misconduct conviction, and which

precludes the exercise of discretion. The only mandatory ‘tanguage the Tenth

Circuit considered was that which made automatic this discretion-

stripping penalty for the (unconstitutional) misconduct conviction.

2 ee

Properly viewed, this case poses no conflict whatevér with Sandin.

The petitioner’s argument that it does is fueled by his failure to appreciate

the significance of the fact that this case involves action that “inevitably

affect[ed] the duration of [the] sentence.” Sandin, 515 U.S. at 487. The

Tenth Circut made the very inquiry that this Court has directed when the

asserted claim is an effect on a sentence’s duration. And the circuit's

conclusion is supported by this Court's observation of what was, in this

regard, lacking in Sandin. The conviction in Sandin, this Court noted, did

not require denial of parole. The conviction here did have sucha

preclusive effect on earlier release.

A. The Tenth Circuit carefully applied Sandin and reached a

conclusion consistent with this Court's teachings.

This Court’s concern in Sandin was with a search for liberty interests

that are protected by the Due Process Clause that is divorced from what is

at stake. Sandin, 515 U.S. at 482-84. It is not enough, this Court instructed,

that a state rule mandates certain treatment. Instead, State action creates a

protected liberty interest only if it implicates an independently weighty

interest. Id. at 484. The interest must generally be one that imposes

“atypical and significant hardship” relative to ordinary prison life. Id.

This includes disciplinary actions that “inevitably affect the duration of

[the] sentence.” Id. at 487.

The Tenth Circuit faithfully followed this approach. Its opinion was

always focused on the “nature of the deprivation.” Id: at 481. The opinion

stressed there had ‘ be a direct, unattenuated impact on the sentence for

Mr. Wilson to have a liberty interest under Sandin. Wilson, 430 F.3d at

1117, 1119, 1120. Likewise, the opinion tested the effect of the misconduct

conviction against this standard. Id, at 1120-21, 1123.

: The petitioner is thus quite wrong in portraying this case as a court's

search for mandatory regulations for their own sake. The Tenth Circuit did

not, as the petitioner would have it, only “ purport[}” to invoke the test of

an effect on the duration of Mr. Wilson’s sentence. Pet. at 12. Rather, this

was the true, and eminently correct, “focus[]” of the circuit's opinion. Id.

Of course, the Tenth Circuit also considered whether the misconduct

conviction mandated a disqualification from particular earning statuses.

But the circuit court could hardly have done otherwise. If the conviction

were only a factor prison officials could consider in deciding what credits

could be earned, there would be no inevitable effect on the duration of Mr.

Wilson's confinement. There would only be a potential impact on how

long he served. The misconduct conviction would be simply one of “a

myriad of considerations” that affected what credits he received. Sandin,

515 U.S. at 487. In that scenario, the chance the conviction would “alter the

balance” of when Mr. Wilson would be released, would be “too attenuated

to invoke the procedural guarantees of the Due Process Clause.” Id.

This was the case in Sandin, where the misconduct conviction did not

have an automatic impact on parole, but was only a factor the board could

consider. This Court emphasized this fact in holding that Hawaii had not

created a liberty interest. “ Nothing in Hawaii's code requires the parole

board to deny parole in the face of a misconduct record or to grant parole

in its absence, even though misconduct is by regulation a relevant

consideration.” Id. (citation omitted).

But what was missing in Sandin is, as the Tenth Circuit held, present

here. The misconduct conviction required prison officials to demote Mr.

Wilson to level one and prevented them from advancing him beyond level

two for two years. These consequences -- which made him categorically

ineligible to earn any credits for a month, and made him categorically

ineligible to earn credits at higher rates for a full two years -- “occurred

solely, automatically, and mandatorily” because of the conviction. Wilson,

430 F.3d at 1121. Just as a regulation that calls for automatic denial of

parole on conviction for misconduct implicates a liberty interest, so do the

provisions here that automatically prevented Mr. Wilson from earning

credits at particular rates regardless of whether he otherwise would be

eligible to do so.

The Tenth Circuit correctly applied Sandin. As Judge Easterbrook

explained in Montgomery v. Anderson, the credit and parole contexts are

analogous: “[a] hope to be released before the expiration of one’s terms on

good-time credits is no different in principle from a hope to be released on

parole.” 262 F.3d 641, 645 (7th Cir. 2001). So, the Tenth Circuit was right

to look at whether the misconduct conviction disqualified Mr. Wilson from

earning credits.

The liberty interest here is not to be “in a particular credit-earning

level.” Pet. ati. Rather, it is in a disciplinary proceeding that results in the

automatic disqualification to be able to earn credits that reduce a sentence.

The analogy to the parole context is again useful. A prisoner does not have

a liberty interest in a discretionary parole determination. But a prisoner

does have a liberty interest in State action that removes discretion and

requires denial of parole.

The petitioner’s claim that in deciding there was a liberty interest the

Tenth Circuit has thrust itself into the day-to-day management of prisons,

Pet. at 8, is erroneous. Misconduct convictions that result in revocation of

good-time credits implicate a liberty interest. Wolff v. McDonnell, 418 U.S.

539, 557 (1974). Given that this is a frequent penalty for such disciplinary

proceedings, the federal courts routinely review whether such proceedings

comport with the Due Process Clause. It was part of the penalty here and,

had it not been suspended, there would be no question at all but that there

was a liberty interest.

Also, as the Tenth Circuit was at pains to emphasize, this case does

not implicate the discretion of prison officials because the regulation

mandates demotion and disqualification from advancement in earning

status upon conviction. “Prison officials exercised absolutely no discretion

a

over the imposition (# these two punishments and had no discretion to

10

allow Mr. Wilson to avoid them.” Wilson, 430 F.3d at 1120-21; see also id.

at 1123 (“as we have repeatedly stressed, Mr. Wilson's reclassification did

not occur because of an exercise of discretion”).

B. The petitioner's other criticisms of the Tenth Circuit's

opinion miss the point that, as this Court indicated in

Sandin, disqualification from earlier release supports a

liberty interest.

| Ironically, the petitioner, who unrelentingly criticizes the Tenth

Circuit’s opinion for considering in any way whether the state regulations

have a mandatory effect on the earning of credits, devotes an entire section

of his petition to the supposedly non-mandatory nature of the regulations.

See Pet. at 13-16. The petitioner maintains the Tenth Circuit has erred in its

interpretation of the Oklahoma regulations. Of course, if the petitioner is

right that the opinion may be flawed for this reason, then this certainly is |

not an appropriate case in which to grant review. This Court does not sit

to decide the proper interpretation of state regulations.

This argument is conceptually misguided also. The petitioner's point

seems to be that Mr. Wilson might for other reasons have been demoted or

failed to eain credits at higher rates. But the same argument could be

11

made in the parole context. State action that precludes parole, it could be

asserted, does not implicate a liberty interest because the board might deny

parole even were it not for the action. Nevertheless, this Court in Sandin

indicated that action that mandated denial of parole gave rise to a liberty

interest.

The disqualifying effects of the misconduct conviction here should

not be treated differently. As the Tenth Circuit aptly observed, given the

“mandatory change in credit-earning status .. . the fact that prison officials

have discretion to change a prisoner's classification when considering other

conduct is irrelevant.” Wilson, 430 F.3d at 1121 (emphasis in original). The

petitioner, as the Tenth Circuit noted, “ignores the fact that Mr. Wilson's

conviction resulted in a mandatory change in credit-earning status.” Id.

(emphasis in original). |

The petitioner’s contention that the Tenth Circuit viewed the effect

on the duration of confinement in hindsight, and not prospectively, Pet. at

16-19, likewise fails. This position is largely tied to the one just debunked.

The petitioner claims the Tenth Circuit ignored that other decisions could

have caused Mr. Wilson’s demotion in earning credits. Id. at 17. This is

12

not meaningfully different from the contention, which Sandin implicitly

rejects, that there is no liberty interest implicated by disqualification from

parole eligibility because subsequent events might independently result in

the denial of parole.

Contrary to what the petitioner maintains, the Tenth Circuit in fact

viewed the impact of the misconduct conviction “from the point in time

when the action [was] taken.” Pet. at 17. At that point, the conviction’s

preclusive effects going forward were apparent. It was these preclusive

effects that gave rise to the liberty interest.

C. The decision in Malchi-v. Thaler, which does not address

the aspects of Sandin that the Tenth Circuit analyzed, and

which simply announces its conclusion, does not provide

a good reason to grant review on an issue that is not of

pressing concern.

Finaliy, the petitioner’s assertion of a purported conflict between this

case and Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000), see Pet. at 19-21,

does not make review appropriate here. The opinion in Malchi does not

address the portions of Sandin relied upon by the Tenth Circuit, and

discussed in this brief. The opinion does not at all consider the preclusive

effect of a misconduct conviction on earning status. It merely announces

13

the conclusion that the timing of release there was too speculative to create

a liberty interest. Malchi, 211 F.3d at 959.

With the debate at best incompletely joined, there is no need for this

Court to take up the issue now. The issue is evidently not one of pressing

importance, as the petitioner identifies just a single case that supposedly

conflicts with the Tenth Circuit’s decision. The Tenth Circuit's approach is

solidly rooted ‘ee Sandin. Any courts to confront the issue in the future wil!

presumably address the reasoning of the decision here. If they do so, and

in the event they read Sandin to require a different result, this Court can

review the issue then with the benefit of a fuller discourse in the circuit

courts.

CONCLUSION

This Court should deny the petition for a writ of certiorari.

Respectfully submitted,

RAYMOND P. MOORE

Federal Public Defender

HOWARD A. PINCUS

Assistant Federal Public Defender

633 Seventeenth St., Suite 1000

Denver, Colorado 80202

(303) 294-7002

15

NO. 05-1618

IN THE

SUPREME COURT OF THE UNITED STATES

JUSTIN JONES, Director of the Oklahoma

Department of Corrections,

Petitioner,

Vv.

LARRY WILSON,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

AFFIDAVIT OF SERVICE

HOWARD A. PINCUS, Assistant Federal Public Defender for the

Districts of Colorado and Wyoming, hereby attests that pursuant to

Supreme Court Rule 24, the preceding Brief in Opposition to Petidoni for

Writ of Certiorari to the United States Court of Appeals for the Tenth

16

Circuit was served on counsel for the Petitioner by enclosing a copy of this

document in an envelope, first-class postage prepaid and addressed to:

Jennifer B. Miller

Assistant Attorney General

2300 N. Lincoln Blvd., Room 112

Oklahoma City, OK 73105

and that the envelope was deposited with the United States Postal Service,

Denver, Colorado 80202, on July 20, 2006, and further attests that all parties

required to be served have been served.

ep aaa ees a 4 Sci a.

HOWARD A. PINCUS

Assistant Federal Public Defender

STATE OF COLORADO )

) ss

COUNTY OF DENVER ?:

Subscribed and sworn to before me this 20th day of July, 2006.

Sotarre JF Wt

Socorro L. West

Notary Public

My Commission Expires: __{{- 0 3 - 200%

17

NO. 05-1618

IN THE

SUPREME COURT OF THE UNITED STATES

JUSTIN JONES, Director of the Oklahoma

Department of Corrections,

Petitioner,

Vv.

LARRY WILSON,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

AFFIDAVIT OF MAILING

HOWARD A. PINCUS, Assistant Federal Public Defender, and a

member of the bar of the United States Supreme Court, attests that he

18

placed the foregoing Brief in Opposition in the United States mail on July

ae

HOWARD A. PINCUS

Assistant Federal Public Defender

STATEOF COLORADO +)

) ss

COUNTY OF DENVER +)

Subscribed and sworn to before me this 20th day of July, 2006.

NSoverre JF. Wat

Socorro L. West

Notary Public

My Commission Expires: //-03 -000¢

19