Appendices — Lewis v. Hanlon

App. 1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESLIE ANDREW HANLON ) No. 95-15869

)

Plaintiff-Appellee,

D.C. No.

v. CIV 92-1506 PHX EHC

)

)

SAMUEL A. LEWIS ar en ee

)

)

Defendant-Appellant.

(Filed Jul. 23, 1996)

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued and Submitted June 11, 1996

San Francisco, California

Before: REINHARDT and HALL, Circuit Judges, and

MERHIGE, District Judge.**

Samuel A. Lewis, Director of the Arizona Depart-

ment of Corrections, appeals the district court’s denial of

his-motion for summary judgment on the basis of quali-

fied immunity on Leslie Andrew Hanlon’s 42 U.S.C.

§ 1983 complaint alleging an ex post facto violation

regarding his sentence. We conclude that the district

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3.

** The Honorable Robert R. Merhige, Jr., Senior United

States District Judge for the Eastern District of Virginia, sitting

by designation.

App. 2

court correctly denied defendant Lewis’s assertion of

qualified immunity, and affirm.

In 1988, plaintiff Leslie Hanlon was charged in Pinal

County Superior Court with embezzlement. He entered

into a plea agreement and, on July 25, 1988, was sen-

tenced to a term of 5.25 years. His sentence expiration

date was set at April 29, 1993.

Arizona state law provides an opportunity for

parole-eligible prisoners to earn release credits. A pris-

oner’s earned release credit date is the date when the

sum of the release credits earned and actual time served

equals the sentence imposed. In its decision denying the

defendant’s qualified immunity assertion, the trial court

stated that Hanlon’s earned release credit date was set at

November 5, 1991.!

At the time of Hanlon’s offense, Arizona law gave

the director of the Arizona Department of Corrections

(ADOC) authority, pursuant to rules promulgated by the

ADOC, to release any prisoner on his earned release

credit date.2 At the time of Hanlon’s offense, it was the

1 Defendant in his opening brief on appeal states that

Hanlon’s original earned credit release date was estimated to be

January 5, 1992. We do not resolve this potential dispute as it in

no way affects the decision on qualified immunity.

2 A.R.S. § 41-1604.07(D) provides in pertinent part: “The

director, according to rules promulgated by the department,

may authorize the release of any prisoner who has earned

release credits which, when added to the time served by the

prisoner, equal the sentence imposed by the court which shall be

the prisoner’s earned release credit date.”

App. 3

practice of the department routinely to release prisoners

on that date.

At the commencement of his custody, Hanlon was

given an administrative classification profile. A classifica-

tion profile consists of two parts: a “P” score reflecting

the inmate’s risk to the public; and an “I” score reflecting

the inmate’s institutional risk. Both scores range from one

to five, with five representing the greatest risk. On March

8, 1990, after he was found guilty of three major rule

violations, Hanlon’s classification profile was raised to

5/5, the maximum in both categories. At the time of his

conviction, and on March 8, 1990, an inmate’s classifica-

tion profile did not bear on his earned release credit date:

neither official policy nor department practice linked

them. Indeed, defendant Lewis concedes that throughout

this time prisoners were routinely released on their

earned release credit dates with classification profiles of

3/5.

On May 1, 1991, more than three years after the

offense for which Hanlon was sentenced occurred and

more than a year after his classification profile was raised

to 5/5, the ADOC promulgated the Director’s Manage-

ment Order (DMO) 91-03. DMO 91-03 provided that in

order to qualify for release at the earned release credit

date, an inmate must have a correctional classification

profile with a P factor of 3 or below, and an I factor of 4

or below. Under the order, those inmates who meet such

a profile, whose underlying offense allows for earning

release credits, and who have earned release credits, are

automatically approved for release on their earned

release credit dates; those who do not meet the required

App. 4

profile are automatically denied earned release credit

date release.

On August 19, 1991, Hanlon’s status was reviewed

for earned release eligibility, and he was deemed inelig-

ible, pursuant to DMO 91-03, because his classification

profile was too high. Hanlon was not released until his

sentence expired on April 29, 1993.

Defendant Lewis is entitled to qualified immunity in

a suit for civil damages insofar as his conduct did not

“violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To be clearly

established, “[t]he contours of the right must be suffi-

ciently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987).

We conclude that defendant Lewis’s retroactive

application of DMO 91-03 in this case violated a right

sufficiently clearly established that a reasonable official

would have understood that he was violating that right.

Article I of the Constitution provides that neither

Congress nor any state shall pass any ex post facto law.

U.S. Const. art. I, § 9, cl. 3, art. I, § 10, cl. 1. The Supreme

Court has announced a two-prong test to determine

whether the application of a penal law violates the ex

post facto clause. “[F]irst, the law ‘must be retrospective,

that is, it must apply to events occurring before its enact-

ment’; and second, ‘it must disadvantage the offender

affected by it.’” Miller v. Florida, 482 U.S. 423, 429 (1987)

(quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)).

IAA he a Lot i a 8 al

App. 5

An ex post facto law is not simply one that makes

criminal an act that was lawful at the time it was commit-

ted, or a law that increases a sentence following the

commission of the act for which punishment is imposed.

Rather, this court has held that “[t]he ex post facto provi-

sion applies to a wide range of changes affecting trial

procedures and the mechanics of punishment.” U.S. v.

Paskow, 11 F.3d 873, 876 (9th Cir. 1993),

In Flemming v. Oregon Bd. of Parole, 998 F.2d 721 (9th

Cir. 1993), the Ninth Circuit struck down as an ex post

facto law an amended state parole regulation that merely

reduced the “opportunity” for early release. The court

relied on the reasoning of the leading Supreme Court

cases, and particularly on Weaver, stating that “it is suffi-

cient for ex post facto purposes if a statute significantly

reduces an inmate’s early release opportunities, regardless

if such opportunities are contingent on the exercise of

official discretion.” Id. at 724 (emphasis in the original).

The regulation promulgated by defendant Lewis

when retroactively applied to Hanlon similarly deprived

him of the opportunity to reduce his time in prison. As

the trial court noted in granting plaintiff Hanlon’s motion

for summary judgment on the issue of liability, “Before

DMO 91-03, plaintiff was eligible for release on his

earned release credit date, and after DMO 91-03 he was

not.”

Appellant Lewis relies on Smith v. United States Parole

Commission, 875 F.2d 1361 (9th Cir. 1989) and Wallace v.

Christensen, 802 F.2d 1539 (9th Cir. 1986), to argue that,

because “[t]he ADOC Director retained at all times since

1986, the absolute discretion to regulate the earned credit

App. 6

release of prison inmates,” the prohibition against ex post

facto laws does not attach. He contends that the fact that

the Director had discretion to promulgate rules means

that the DMO is not a “law” for the purposes of ex post

facto analysis, but rather a “mere procedural guidepost

without the characteristics of law.” Smith, 875 F.2d at

1367. Lewis’s reliance on Smith is misplaced.

The Supreme Court has held that retroactive applica-

tion of a statute which mandates a punishment that had

been discretionary at the time the crime was committed

violates the ex post facto clause. See Lindsey v. Washington,

301 U.S. 397, 400-02 (1937). Thus, “Lindsey establishes

‘that one is not barred from challenging a change in the

penal code on ex post facto grounds simply because the

sentence he received was not more onerous than that

which he might have received under the old.’ ” Miller, 482

U.S. at 432 (1987).

The “discretion” delegated to the ADOC Director

under Arizona state law is not sufficient to render earned

release credit date regulations mere “procedural guide-

posts without the characteristics of laws,” in line with

Smith. Rather, A.R.S. § 41-1604.07(D) delegates rulemak-

ing authority to the ADOC to establish binding regula-

tions for determining when a prisoner will be released on

his earned release credit date. After DMO 91-03 was

promulgated, the ADOC Director did not have discretion

to “ignore” the directive “altogether as circumstances

require,” as the test set out in Smith requires. Smith, 875

F.2d at 1367.

Finally, Lewis’s reliance on Smith is misplaced most

clearly because in Flemming, this court, relying on well-

App. 7

settled Supreme Court precedent — Weaver, Miller, and

Lindsey — expressly limited Smith “to the context of fed-

eral parole guidelines and their related regulations.”

Flemming, 998 F.2d at 727. Lewis’s contentions that the

retroactive application of DMO 91-03 did not violate the

ex post facto violation are without merit.

Lewis next argues that even if his decision to apply

DMO 91-03 retroactively violated the prohibition against

ex post facto laws, plaintiff Hanlon cannot establish that

the ‘contours’ of his rights were ‘sufficiently clear’ that

Lewis should have understood that his actions were

unlawful. Lewis argues that the “mixed state of existing

ex post facto analysis” entitles him to qualified immunity,

even if a violation occurred. Lewis is only able to muster

two cases to support his contention that Hanlon’s rights

were not clearly established.

In arguing for qualified immunity, Lewis argues that

because the court’s decision in Flemming to limit Smith

expressly to its facts was not handed down until 1993, he

was entitled to rely on Smith in 1991 when DMO 91-03

was promulgated. Such a contention is without merit.

Lewis’s reading of Smith was as implausible in 1991 as it

is now. That Flemming was not decided until 1993 does

not weaken its holding that prior Supreme Court prece-

dent limited Smith: in Flemming, the court merely made

explicit what was clear in the light of overwhelming

Supreme Court precedent.

Lewis also relies heavily on the fact that the Arizona

Court of Appeals, in considering the same issue raised in

this case, found no ex post facto violation. Sanchez v.

App. 8

Ryan, 178 Ariz. 88, 870 P.2d 1184 (App. 1993). This argu-

ment is more persuasive, however it is not dispositive.

The Sanchez case was decided after Flemming, yet it fails

to cite Flemming, or any other relevant Ninth Circuit or

Supreme Court ex post facto decisions, with the single

exception of Weaver, in concluding that no ex post facto

violation occurred. That a court joined Lewis in his

obvious error, does not convert the disregard of existing

law into a reasonable mistake. Lewis is not entitled to

qualified immunity simply by relying on a state ruling

that failed to consider controlling precedent.

We conclude that, in light of Lindsey, Weaver, and

Miller, Lewis’s decision to retroactively apply the provi-

sions of DMO 91-03 violated a clearly established consti-

tutional right of which a reasonable person would have

known. Accordingly, we affirm the district court’s denial

of qualified immunity.

AFFIRMED

;

;

;

ee ee ee ee a ee

App. 9

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

LESLIE ANDREW HANLON, ) CIV 92 -

Plaintiff, 1506 PHX EHC

é‘ ORDER

v. )

) (Filed

SAMUEL LEWIS, ) Mar. 24, 1995)

Defendant. )

)

Plaintiff’s original Complaint was filed on August 10,

1992, while he was confined in the Arizona State prison

Complex at Florence (ASPC-F). A Second Amended Com-

plaint was filed on December 2, 1993. Plaintiff was

released from custody on April 29, 1993.

Plaintiff alleges in his Complaint that the retroactive

application of Director Management Order (DMO) 91-03

made him ineligible for release on his earned release

credit date, in violation of the Ex Post Facto Clause of the

United States Constitution. Plaintiff also alleged viola-

tions of his constitutional rights to due process and equal

protection.

On September 27, 1994, this Court entered an Order

ruling on the parties’ Cross-Motions for Summary Judg-

ment on the ex post facto claim. The Court granted the

plaintiff’s motion and denied the defendant’s motion,

ruling that the defendant’s retroactive application of

DMO 91-03 violated the Ex Post Facto Clause (dkt. 94).

The Court did not rule on the issue of damages and did

not address the plaintiff’s due process and equal protec-

tion claims.

App. 10

Defendant raised qualified immunity as a defense in

his Answer to the Second Amended Complaint (dkt. 49).

After the Court ruled on the summary judgment motions,

the defendant filed a second Motion for Summary Judg-

ment, arguing that the ex post facto claim should be dis-

missed on grounds of qualified immunity. The sole

question for the Court is whether the defendant is

shielded from liability in connection with the plaintiff’s

ex post facto claim by the doctrine of qualified immunity.

The motion is fully briefed and ready for disposition

without oral argument.

I, Background

The relevant facts are more extensively set forth in

the Court’s September, 1994 Order. The statutory back-

ground is described in that Order and in the state court of

appeals decision in Sanchez v. Ryan, 178 Ariz. 88, 870 P.2d

1184 (App. 1993), (review denied, April 19, 1994), which

addressed an identical ex post facto claim.

A.R.S. §41-1604.07(A)(1) entitles prisoners classified

as parole eligible, class one to earn release credits. Prior

to 1986, A.R.S. §41.1604.07(B) provided that release

credits would be deducted from and would thus reduce

the term of imprisonment imposed. Prisoners were auto-

matically released on the date that their release credits,

when added to the time that they had served, equaled the

sentence imposed.

In 1986, §41-1604.07(B) was amended to provide that

release credits would no longer reduce the term of

imprisonment imposed. New subsection §41.1604.07(D),

however, provided that

5

4

3

j

a a a ey ~~

App. 11

The Director, according to rules promulgated by

the department, may authorize the release of

any prisoner who has earned release credits

which, when added to the time served by the

prisoner, equal the sentence imposed by the

court which shall be the prisoner’s earned

release credit date.

DMO 91-03, promulgated on May 1, 1991, provided

that earned release would be available only to prisoners

who met certain criteria and who were granted release by

the director. Significant for purposes of this motion is the

DMO’s requirement that a prisoner must have a public

risk factor of 3 or below and an institutional risk factor of

4 or below to be eligible for earned release.! The court of

appeals noted in Sanchez that at the hearing on the peti-

tion for writ of habeas corpus in Superior Court,

counsel for the state admitted that before DMO

91-03 became effective, ADOC’s practice was to

release prisoners on their earned release credit

dates even if their public risk factor was greater

than 3.

Sanchez, 178 Ariz. at 90.

The plaintiff was charged with embezzlement in

Pinal County Superior Court in 1988. He entered a plea

agreement and was sentenced to 5.25 years on July 25,

1988. Plaintiff’s earned release credit date was November

5, 1991; Plaintiff’s sentence expiration date was April 29,

1993.

1 A classification profile consists of two parts: (1) a “P”

score reflecting risk to the public and (2) an “I” score reflecting

institutional risk. The scores range from one to five; five

represents the highest risk.

App. 12

On March 8, 1990, the plaintiff’s administrative clas-

sification profile was raised to 5/5.2 On August 19, 1991,

the plaintiff was reviewed by the Institution Classifica-

tion staff for earned release eligibility. Pursuant to DMO

91-03, the plaintiff was deemed ineligible for earned

release because his classification profile was too high. The

Court found in its previous order that the implementa-

tion of DMO 91-03 “effectively deprived plaintiff of his

earned release credits.” Order at 4 (dkt. 94).

II. Discussion

Defendant is entitled to qualified immunity unless

the conduct at issue violated “clearly established statu-

tory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). To be

clearly established, “(t]he contours of the right must be

sufficiently clear that a reasonable official would under-

stand that what he is doing violates that right.” Anderson

v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97

L.Ed.2d 523 (1987). The question is not whether the very

action in question has been held unlawful. Id., 483 U.S. at

640, 107 S.Ct. at 3039. An action violates clearly estab-

lished law when, in view of the pre-existing law, the

unlawfulness of the action is apparent. Id.

2 As noted in the previous Order, the record is unclear as to

Plaintiff’s initial classification profile. The defendant has

described the plaintiff as having a “checkered disciplinary

history while at ADOC.”

App. 13

Contrary to the defendant’s argument, it is not dis-

positive that no federal court has previously addressed

the precise issue whether these earned release eligibility ~

guidelines violate the Ex Post Facto Clause. Nor is it

dispositive that the Arizona Court of Appeals found no ex

post facto violation in the Sanchez case. The Court's Sep-

tember, 1994 ruling relied primarily on Supreme Court

precedent that was well established in 1991, when the

DMO was implemented. In particular, the Court relied on

Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17

(1981) and Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96

L.Ed.2d 351 (1987).

Defendant relies in his qualified immunity motion on

the argument that DMO 91-03 did not change Arizona

law because - prior to its implementation - no statute,

rule, or regulation required the director to release an

inmate when he reached his earned release credit date.

The director had discretion to do so and, apparently, it

was the practice to do so even when the public risk factor

exceeded 3. This argument was the basis for the court of

appeals decision in Sanchez. That court found that at the

time in question — before the enactment of the DMO - the

director could release inmates who reached their earned

release credit dates. However,

no statute, rule, or regulation required the direc-

tor to release all prisoners who had reached

their earned release credit dates, and .. . the

director’s practice of doing so did not have the

force and effect of law.

178 Ariz. at 91. The court of appeals concluded that

“Because DMO 91-03 did not represent a change in the

law that existed when appellee committed his offense, it

App. 14

did not violate the constitutional prohibitions against ex

post facto laws.” Id.

This Court, however, reached a different conclusion

in its September 27, 1994 order, finding that it was imma-

terial that the defendant was not required to release the

plaintiff on his earned release credit date. Again, this

Court relied primarily on the Supreme Court’s 1981 deci-

sion in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67

L.Ed.2d 17 (1981).

As the Ninth Circuit has noted, “Several passages in

Weaver indicate that it is sufficient for ex post facto pur-

poses if a statute significantly reduces an inmate’s early

release opportunities, regardless if such opportunities are

contingent on the exercise of official discretion.” Flem-

ming v. Oregon Board of Parole, 998 F.2d 721, 724 (9th Cir.

1993). Specifically, in Weaver, the Supreme Court held that

retroactive application of a statute changing the formula

for deducting gain-time credits from a sentence violated

the Ex Post Facto Clause, in spite of the fact that the gain-

time allowance could be withdrawn, modified, or denied.

Contrary to the reasoning of the Supreme Court

of Florida, a law need not impair a “vested

right” to violate the ex post facto prohibition.

Evaluating whether a right has vested is impor-

tant for claims under the Contracts or Due Pro-

cess Clauses, which solely protect pre-existing

entitlements .. . The presence or absence of an

affirmative, enforceable right is not relevant,

however, to the ex post facto prohibi-

tion . . . Thus, even if a statute merely alters

penal provisions accorded by the grace of the

legislature, it violates the Clause if it is both

App. 15

retrospective and more onerous than the law in

effect on the date of the offense.

101 S.Ct. at 964-965.

The Ninth Circuit also noted in Flemming that the

Supreme Court held in Lindsey v. Washington, 301 U.S.

397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) that one is not

barred from challenging new law on ex post facto grounds

simply because the sentence under the new law is not

necessarily more onerous than that which would have

been imposed previously. 998 F.2d at 725. “This holding

leaves open the door to claims of ex post facto violations

arising from laws with discretionary elements.” Id.

In light of Weaver and Lindsey, a reasonable official

should have been aware in 1991 that the application of

DMO 91-03 to the plaintiff could violate the Ex Post Facto

Clause. The Court concludes that Defendant Lewis is not

shielded by qualified immunity.

lil. Conclusion

Accordingly, for the reasons previously set forth,

(fT IS ORDERED denying Defendant’s Motion for

Summary Judgment on Qualified Immunity (dkt. 97).

iT IS FURTHER ORDERED granting Plaintiff's

Cross-Motion for Summary Judgment on Qualified

Immunity (dkt. 114).

IT IS FURTHER ORDERED setting a pretrial confer-

ence in this matter on Monday, April 17, 1995 at 9:00 a.m.

App. 16

DATED this 22 day of March, 1995.

/s/ Earl H. Carroll

Earl H. Carroll

United States

District Judge

App. 17

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

LESLIE ANDREW HANLON, )

aie ) CIV 92-1506

Plaintiff, PHX EHC

¥. ‘ ORDER

SAMUEL LEWIS, (Filed

Defendant. ) Sep. 27, 1994)

)

Introduction

On August 10, 1992, while confined in the Arizona

State Prison Complex at Florence, Arizona, plaintiff filed

a pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff

filed an amended complaint on September 16, 1992 and a

second amended complaint on December 2, 1993.

Plaintiff alleges that the retroactive application of

Director Management Order (DMO) 91-03 made plaintiff

ineligible for release on his earned credit release date, in

violation of the Ex Post Facto Clause of the United States

Constitution. Plaintiff further alleges that the retroactive

application of DMO 91-03 deprived plaintiff of a liberty

interest in his early release from custody without due

process or equal protection of law under the Fourteenth

Amendment.

Named as defendant is Arizona Department of Cor-

rections Director Samuel Lewis. Plaintiff seeks monetary

1 see infra, note 3.

App. 18

and injunctive relief. Neither party has requested a jury

trial.

On October 1, 1992, the Court stayed the action to

permit plaintiff to pursue his state court remedies and, if

necessary, his federal remedies pursuant to a writ of

habeas corpus.

On April 29, 1993, plaintiff was unconditionally

released from prison and, on October 28, 1993, the stay

was vacated and defendant was directed to respond to

the complaint.?

Currently pending before the Court are the following

motions: defendant’s motion for summary judgment (dkt.

62); plaintiff's motion for summary judgment (dkt. 71);

plaintiff’s motion to print Court’s opinion (dkt. 72); plain-

tiff’s motion for the Court to review the legal arguments

in his amended complaint (dkt. 73); plaintiff’s motion for

judgment (dkt 82); plaintiff’s response and objection to

the Magistrate Judge’s order filed March 17, 1994 (dkt

83); and plaintiff’s motion for the Court to review a state

court decision (dkt. 85).

Motions for Summary Judgment

The relevant facts of this case are not subject to any

meaningful dispute:

In January, 1988, plaintiff was charged in Pinal

County Superior Court with the crime of embezzlement.

Plaintiff entered into a plea agreement and, on July 25,

2 Because plaintiff has been released from custody, his

claims for injunctive relief are now moot.

App. 19

1988, was sentenced to the custody of the Arizona

Department of Corrections (ADOC) for a term of 5.25

years. Plaintiff’s earned release credit date was set at

November 5, 1991 and plaintiff’s sentence expiration date

was set at April 29, 1993.5 Plaintiff’s Exhibit F.

At the commencement of his custody, plaintiff was

given an administrative classification profile. A classifica-

tion profile consists of two parts: first, a “P” score reflect-

ing plaintiff’s risk to the public; and second, an “I” score

reflecting plaintiff’s institutional risk. These scores range

from one to five, with five representing the greatest risk.

Plaintiff’s initial classification profile does not appear

in the record before the Court. However, plaintiff had

what defendant alleges as a “checkered disciplinary his-

tory while with ADOC.” Defendant’s Statement of Facts

at { 3. On March 8, 1990, after he was found guilty of

three major rule violations, plaintiff's classification pro-

file was raised to 5/5.4

On May 1, 1991, more than three years after plaintiff

was sentenced and nearly a year after plaintiff’s classi-

fication profile was raised to 5/5, defendant promulgated

DMO 91-03. See Defendant’s Exhibit B. DMO 91-03 pro-

vided, inter alia, that in order to qualify for release at the

3 As will be more fully examined below, pursuant to A.R.S.

§ 41-1604.07, the earned release credit date is the date when the

sum of release credits earned and actual time served (including

credit_for presentence incarceration) equals the sentence

imposed.

4 Plaintiff contends that one of the alleged violations was

dismissed on appeal. Plaintiff’s Exhibit K.

App. 20

earned release credit date, an inmate must have a correc-

tional classification profile with a P factor of 3 or below,

and an I factor of 4 or below. Inmates who meet such a

profile, whose underlying offense allows for earning

release credits, and who have earned the release credits,

shall be approved for earned release credit date release.

DMO 91-03 at sec. 5.1.5

On August 19, 1991, plaintiff was reviewed by the

Institution Classification staff for earned release eligi-

bility. Plaintiff was deemed ineligible for earned release

because, pursuant to DMO 91-03, his classification profile

was too high.

In accordance with the ADOC Offender Classification

System, at least four years are required to reduce an

inmate’s P score from a 5 to a 3 (i.e. a qualifying P level

under 91-03). See Plaintiff’s Exhibit M at p. 38. With a

sentence expiration date of April 29, 1993, the implemen-

tation of DMO 91-03 effectively deprived plaintiff of his

earned release credits because he would not have become

5 Effective June 24, 1992, DMO 91-03 was amended and the

following passage was added to sec. 1.0:

The Director retains the absolute discretion to modify

this Order, as necessary, or to ignore it altogether as

circumstances require. Such override may be made in

the Director’s sole and absolute discretion when

needed to promote institutional safety and security or

to account for other unique concerns. This Order is ©

not a binding constraint on the Director’s

administrative decision-making process, but merely

serves as a guide to the Director’s proper exercise of

his sole discretion.

See Plaintiff’s Exhibit B.

MOG Lae Pee in Sib DOO wee SABA,

App. 21

eligible for earned release, assuming good behavior, until

1995.

Ex Post Facto Claim

Plaintiff alleges that defendant's application of DMO

91-03 violated the Ex Post Facto Clause of the Constitu-

tion.

Article I, section 10 of the Constitution prohibits the

states from passing laws ex post facto:

It is settled, by decisions of this Court so well

known that their citation may be dispensed

with, that any statute which punishes as a crime -

an act previously committed, which was inno-

cent when done; which makes more burden-

some the punishment for a crime, after its

commission, or which deprives one charged

with crime of any defense available according to

law at the time when the act was committed, is

prohibited as ex post facto.

Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719

(1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46

S.Ct. 68, 68 (1925). In Arizona, administrative rules and

regulations may have the force and effect of law and be

subject to the ex post facto prohibition. See Arnold v. Ari-

zona Board of Pardons and Paroles, 167 Ariz. 155, 158, 805

P.2d 388, 391 (App. 1991).

In support of his motion for summary judgment,

defendant Lewis refers the Court to Sanchez v. Ryan, 870

P.2d 1184 (Ariz.App. 1993) (rev. denied April 19, 1994), an

Arizona Court of Appeals opinion that addresses the

identical issues presently before the Court. Defendant

App. 22

argues that Sanchez is dispositive and that the Court

should summarily dismiss plaintiff's amended complaint.

Defendant’s motion is otherwise lacking legal analysis.

The following passage in Sanchez sets forth the statu-

tory history of the Arizona statute governing earned

release credits:

Prior to 1986, A.R.S. section 41-1604.07(B)

provided that release credits would be deducted

from and reduce the term of imprisonment

imposed. Pursuant to this statute, prisoners

were automatically released on the date that

their release credits, when added to the time

that they had served, equaled the sentence

imposed. This release date was then known as

the ‘sentence expiration’ date.

The legislature amended section

41-1604.07(B) in 1986 to provide that release

credits would no longer reduce the term of

imprisonment imposed.® 1986 Ariz. Sess. Laws,

ch. 200, § 2. At the same time, it added subsec-

tion (D) to the statute. Id. Subsection (D) pro-

vides that the director of ADOC, pursuant to

rules that ADOC has promulgated, may autho-

rize the release of any prisoner on the date that

his release credits, when added to the time

6 As amended, A.R.S. section 41-1604.07(B) provides as

follows:

Release credits earned by a prisoner pursuant to

subsection A of this section shall not reduce the term

of imprisonment imposed by the court on such

prisoner nor reduce the sentence imposed on the

prisoner for the purpose of determining such

prisoner’s parole eligibility.

App. 23

served, equal the sentence imposed.” This date

is now known as the earned release credit date.

See A.R.S. § 41-1604.07(D).

870 P.2d at 1185-86 (emphasis in original) (footnotes in

original).

In this case, as in Sanchez, at the time plaintiff com-

mitted his offense, the only rule ADOC had promulgated

concerning earned credit release, as authorized by section

41.1604.07(D), was Internal Management Procedure (IMP)

424.8 IMP 424 set forth the procedure for the forfeiture

and possible restoration of earned release credits.°

According to ADOC’s counsel in Sanchez, “the director

had a practice of treating earned release credits as though

they reduced the term of imprisonment imposed even

” As amended, A.R.S. § 41-1604.07(D) provides in pertinent

part as follows:

The Director, according to rules promulgated by

the department, may authorize the release of any

prisoner who has earned release credits which, when

added to the time served by the prisoner, equal the

sentence imposed by the court which shall be the

prisoner’s earned release credit date.

8 IMP 424 was superseded by IMP 503.1 on February 27,

1991.

9 IMP 424(I)(D) provides as follows:

In cases of institutionalized inmates involving major

violations, a finding of guilty by the Disciplinary

Committee may result in the recommendation for the

forfeiture of earned release credits. These

recommendations shall be submitted through the

Institution Classification Committee, the Chief

Executive Officer, and the Deputy Director, Adult

Services, to the Director who may approve or deny

the request at his sole discretion.

App. 24

though section 41-1604.07(B) had been amended to pro-

vide that they would no longer so do.” Id. at 1186.

Section 41-1604.07(C) provides that the director may

declare any and all earned release credits forfeited upon

reclassification of a prisoner resulting from a failure to

adhere to the rules and regulation of the department, or

failure to demonstrate a continual willingness to volun-

teer for or successfully participate in a work, educational,

treatment or training program. In the discretion of the

director, the forfeited release credits may be subsequently

restored.

In this case, however, plaintiff’s earned release

credits were not forfeited following his disciplinary pro-

ceedings and corresponding security profile reclassifica-

tion. On March 2, 1993, plaintiff had accrued 541 days of

earned release credits. Plaintiff's Exhibit D.

Returning to Sanchez, the Court of Appeals con-

cluded as follows:

On appeal, the state argues that DMO 91-03

did not implicate ex post facto concerns because

it did not represent a change in the law that

existed when appellee committed his offense. It

notes that at the time in question, section

41-1604.07(D) provided that the director, in

accordance with rules promulgated by ADOC,

could release prisoners who had reached their

earned release credit dates. It contends that no

statute, rule, or regulation required the director

to release all prisoners who had reached their

earned release credit dates and that the direc-

tor’s practice of doing so did not have the force

and effect of law. We agree.

hI SB teas Loa set oe

App. 25

Appellee has not cited any statute, rule, or

regulation that was in effect at the time he com-

mitted his offense that required the director to

release him when he reached his earned release

credit date . . . Because DMO 91-03 did not

represent a change in the law that existed when

appellee committed his offense, it did not vio-

late the constitutional prohibitions against ex

post facto laws.

870 P.2d at 1187 (Emphasis in original).

Argument

As an initial matter, the Court rejects defendant's

argument that Sanchez is dispositive and, under the prin-

ciples of federalism and comity, plaintiff’s amended com-

plaint must be disposed of summarily. To be sure, this

Court must defer to the state courts on the construction

of their laws, but this case involves more than the con-

struction of the state statutes and regulations at issue;

rather, it requires consideration of the Federal Constitu-

tion, and the inquiry does not call for any special degree

of deference to the state courts. Morales v. California Dep't

of Corrections, 16 F.3d 1001, n.5 (9th Cir. 1994) (ex post facto

challenge to statutory change in the frequency of parole

eligibility hearings).

As outlined above, the Sanchez decision rests on the

ground that plaintiff had not cited any statute, rule or

regulation in effect at the time he committed the offense

that required defendant to release plaintiff when he

reached his earned credit release date.

The Ex Post Facto Clause prohibits laws which “make

more burdensome the punishment for a crime, after its

App. 26

commission.” Collins v. Youngblood, 497 U.S. at 42, 110

S.Ct. at 2724. That defendant was not required to release

plaintiff on his earned credit release date is immaterial: it

is “sufficient that [plaintiff's] ‘opportunity to shorten his

time in prison’ was reduced by the statute in question.”

Flemming v. Oregon Bd. of Parole 998 F.2d 721, 724-25 (9th

Cir. 1993) (quoting Weaver v. Graham, 450 U.S. 24, 34, 101

S.Ct. 960, 967 (1981)):

[T]he Supreme Court has repeatedly stated that

a criminal defendant need not show that she or

he certainly would have received a less onerous

punishment under a prior law to establish a

constitutional violation. Stated another way, ‘a

law need not impair a ‘vested right’ to violate

the ex post facto prohibition.’

Id. at 726 (quoting Weaver, 450 U.S. at 29, 101 S.Ct. at 964).

In Weaver, the Supreme Court considered an amend-

ment to a Florida statute that reduced the amount of

“gain time” an inmate could automatically earn. 450 U.S.

at 25, 101 S.Ct. at 962.19 The Court set forth two critical

elements that must be present for a criminal or penal law

to be ex post facto: “it must be retrospective, that is it must

apply to events occurring before its enactment, and it

must disadvantage the offender affected by it.” Id. at 29,

101 S.Ct. at 964. See also Flemming, 998 F.2d at 723.

10 Fla.Stat. § 944.275(1)(1979) enacted a new formula for

monthly gain-time deductions. For instance, under the prior

statute inmates could gain five days per month off for good

behavior during the first two years of their sentence; whereas

under the revised statute only three days per month could be

gained. Id. at 963.

App. 27

As to the first element, the Court held that “[t]he

critical question is whether the law changes the legal

consequences of acts completed before its effective date.”

Id. at 32, 101 S.Ct. at 965. The Court answered this ques-

tion in the affirmative: “For prisoners who committed

crimes before its enactment, [the statute] substantially

alters the consequences attached to a crime already com-

pleted, and therefore changes the ‘quantum of punish-

ment.’” Id. at 33, 101 S.Ct. at 966 (quoting Dobbert v.

Florida, 432 U.S. 282, 293-94, 97 S.Ct. 2290, 2298 (1977)).

As to the second element, the Court held that plain-

tiff is disadvantaged by the reduced opportunity to

shorten his time in prison: “By definition, this reduction

in gain-time accumulation lengthens the period that

someone in [plaintiff’s] position must spend in prison.”

Id. at 24, 101 S.Ct. at 967.

The Weaver Court found the statute at issue void as

applied to plaintiff, reversing the judgment of the

Supreme Court of Florida and remanding the case for

further proceedings. Id. at 37, 101 S.Ct. at 968.

In Weaver, the Supreme Court relied on Greenfield v.

Scafati, 277 F.Supp. 644 (D.Mass. 1967) (three-judge

court), summarily aff'd 390 U.S. 713, 88 S.Ct. 1409. Weaver,

450 U.S. at 35, 101 S.Ct. at 967; see also id. at 38, 101 S.Ct.

at 969 (Blackmun, J. concurring in judgment). In that case,

a three-judge court considered the following amendment

to a Massachusetts statute concerning good conduct

deductions:

A prisoner released on parole by the parole

board, who has failed to observe all the rules of

App. 28

his parole and has been returned to a correc-

tional institution for the violation of his parole,

shall not receive deductions described in this

section [for good conduct] for any of the first six

months after he is returned to the correctional

institution.

277 F.Supp at 645. The plaintiff in Greenfield was sen-

tenced before the effective date of the amendment, and

was paroled after the effective date. Id. Upon his violation

of parole and return to prison, the statute was invoked.

Id.

The Greenfield Court concluded that plaintiff was dis-

advantaged by the new restrictions on eligibility for

release. Id. at 646. Moreover, the Court found “no distinc-

tion between depriving a prisoner of the right to earn

good conduct deductions and the right to qualify for, and

hence earn, parole. Each . . . materially ‘alters the situa-

tion of the accused to his disadvantage.’ ” Id. (quoting In

re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387 (1890).

In his reply in support of summary judgment, defen-

dant cites Smith v. Parole Comm'n, 875 F.2d 1361 (9th Cir.

1989). In Smith, the Ninth Circuit held that application of

a revised federal parole regulation did not violate the Ex

Post Facto Clause because it was not a “law” for ex post

facto purposes. 875 F.2d at 1367-68. In Flemming v. Oregon

Bd. of Parole, the Ninth Circuit, relying on Miller v. Florida,

482 U.S. 435, 107 S.Ct. 2446 (1987), explicitly limited Smith

to the context of federal parole guidelines and their

related regulations. 998 F.2d at 727.

Our decision in Smith is distinguishable

from the present case for reasons outlined by

the Supreme Court in Miller v. Florida . . . First,

App. 29

in contrast to cases which “have held that the

federal parole guidelines are not ‘laws’ for pur-

poses of the Ex Post Facto Clause,” Florida

regards its sentencing guidelines as having “the

force and effect of law.” Second, the Miller Court

indicated that the Florida sentencing guidelines

do not “simply provide flexible ‘guideposts’ for

use in the exercise of discretion: instead, they

create a high hurdle that must be cleared before

discretion can be exercised.” Finally, “the

revised [sentencing] guidelines directly and

adversely affect the sentence petitioner receives.

Id. at 725 (interior citations omitted).

Applying the Miller analysis to the DMO at issue in

the instant case, the Court must consider the following

questions: (1) does Arizona regard its prison regulations

to have the force and effect of law; (2) does the regulation

at issue simply provide a flexible guidepost for use in the

exercise of discretion, or does it create a barrier that must

be cleared before discretion can be exercised; and (3) does

the regulation at issue directly and adversely affect the

sentence plaintiff received.

In Sanchez v. Ryan, the Arizona Court of Appeals

concluded that “[a]dministrative rules and regulations

may have the force and effect of law, Herzberg v. David, 27

Ariz. App. 418, 420, 555 P.2d 677, 679 (App. 1976), and

therefore may be subject to the ex post facto prohibition.”

870 P.2d at 1187. The Sanchez Court cited Arnold v. Arizona

Board of Pardons and Paroles, 167 Ariz. 155, 158, 805 P.2d

388, 391 (App. 1991). In that case, involving a regulation

relating to commutation applications, the court wrote:

Appellants argue that the ex post facto clause

applies to administrative regulations that are

=

App. 30

adopted pursuant to statute, in this case, A.R.S.

§ 31-401(F). The board does not dispute that

fact, and neither do we.

Arnold, 805 P.2d at 391. In this case, DMO 91-03 was

adopted pursuant to A.R.S. § 41-1604.07(D). Accordingly,

the first prong of the Miller test is satisfied.

Second, under DMO 91-03 a prisoner must have a P

score of less than 4 and an I score of less than 5 in order

to be considered eligible for earned release. Thus, the

prison regulation at issue creates a high hurdle that must

be cleared before official discretion can be exercised.

Lastly, at the time plaintiff committed the offense, an

inmate was eligible for release on the date that the sum of

his earned time credits and his actual time served

equaled the term of his sentence. After the implementa-

tion of DMO 91-03, an inmate was eligible for release on

the date that the sum of his earned time credits and his

actual time served equaled the term of his sentence, but

only if the inmate has a P score of less than 4 and an I score of

less than 5. Before DMO 91-03, plaintiff was eligible for

release on his earned credit release date, and after DMO

91-03 he was not. DMO 91-03 applied to events occurring

before its implementation and directly and adversely

effected the length of plaintiff’s confinement.!!

11 Because of the Court’s conclusion, the Court need not

address plaintiff’s due process or equal protection claims. The

Court notes, however, that these claims were not raised or

argued in either party’s motion for summary judgment.

In addition, in his motion for summary judgment, plaintiff

argues that this Court must determine defendant's claim of

qualified immunity pursuant to Anderson v. Creighton, 483 U.S.

a dieeeietiiadinetitend

ARNT 2d AO Foto IE ha te On “Bo

App. 31

For the foregoing reasons, the Court concludes that

DMO 9103, as applied to plaintiff, violated plaintiff's

rights arising from Ex Post Facto Clause of the United

States Constitution. There are no material issues of fact in

dispute and plaintiff is entitled to judgment as a matter of

law.

ACCORDINGLY,

IT IS ORDERED denying defendant’s motion for

summary judgment (dkt. 62).

IT IS FURTHER ORDERED granting plaintiff's

motion for summary judgment (dkt. 71).

IT IS FURTHER ORDERED denying plaintiff’s

motion to print Court’s opinion (dkt. 72).

IT IS FURTHER ORDERED denying as moot plain-

tiff’s motion for the Court to review the legal arguments

in his amended complaint (dkt. 73)

IT IS FURTHER ORDERED denying plaintiff's

motion for judgment (dkt 82).

635, 107 S.Ct. 3034 (1987). Anderson stands for the proposition

that qualified immunity is applicable when a reasonable officer

could have believed his actions to be lawful in light of clearly

established law. 483 U.S. at 642, 107 S.Ct. at 3040.

Defendant does not respond to_plaintiff’s assertion.

Qualified immunity is an affirmative defense, Harlow v.

Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736 (1982), and the

burden of proving the defense lies with the official asserting it.

Id. at 819, 102 S.Ct. at 2738.

App. 32

IT IS FURTHER ORDERED denying plaintiff’s

objections to the Magistrate Judge’s order filed March 17,

1994 (dkt 83).

IT IS FURTHER ORDERED denying as moot plain-

tiff’s motion for the Court to review a state court decision

(dkt. 85).

IT IS FURTHER ORDERED setting a preliminary

pretrial conference on Monday, October 31, 1994 at 9:30

a.m. to discuss further proceedings in this matter.

DATED this 26 day of September, 1994.

/s/ Earl H Carroll

Earl H. Carroll

United States

District Judge

App. 33

APPENDIX D

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESLIE ANDREW HANLON, No. 95-15869

Plaintiff-Appellee, D.C. No.

CIV 92-1506 PHX EHC

V.

)

)

)

)

SAMUEL A. LEWIS, ORDER

)

)

Defendant-Appellant.

(Filed Sep. 6, 1996)

Before: REINHARDT and HALL, Circuit Judges, and

MERHIGE, District Judge.*

The panel has voted to deny appellee’s petition for

rehearing. Judges Hall and Reinhardt have voted to reject

the suggestion for rehearing en banc and Judge Merhige

so recommends.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing is DENIED and the sugges-

tion for rehearing en banc is REJECTED.

* The Honorable Robert R. Merhige, Jr., Senior United

States District Judge for the Eastern District of Virginia, sitting

by designation.

App. 34

APPENDIX E

§ 41-1604.07. Earned release credits; forfeiture; restora-

tion

A. Each prisoner classified as parole eligible, class

one, pursuant to § 41-1604.06, shall be allowed the follow-

ing release credits:

1. If sentenced upon a first conviction other than

pursuant to § 13-703 or other than for a felony involving

the use or exhibition of a deadly weapon or dangerous

instrument or the intentional or knowing infliction of

serious physical injury upon another, every two days

served within class one shall be counted as an earned

release credit of one day.

2. If sentenced pursuant to the provisions of

§ 13-604, subsection A, or upon first conviction of a class

4,5 or 6 felony involving the use or exhibition of a deadly

weapon or dangerous instrument or the intentional or

knowing infliction of serious physical injury or any other

provision of law which prohibits release on any basis

until serving not less than one-half the sentence imposed

by the court, every two days served within class one shall

be counted as an earned release credit of one day.

3. If sentenced according to any other of the provi-

sions of § 13-604 or any other provision of law which

prohibits release on any basis until serving not less than

two-thirds the sentence imposed by the court, every three

days served within class one shall be counted as an

earned release credit of one day.

B. Release credits earned by a prisoner pursuant to

subsection A of this section shall not reduce the term of

imprisonment imposed by the court on such prisoner, nor

H

App. 35

reduce the sentence imposed on the prisoner for the

purpose of determining such prisoner’s parole eligibility.

C. Upon reclassification of a prisoner resulting from

such prisoner’s failure to adhere to the rules and regula-

tions of the department or failure to demonstrate a con-

tinual willingness to volunteer for or successfully

participate in a work, educational, treatment or training

program, the director may declare any and all release

credits earned by the prisoner forfeited. In the discretion

of the director such release credits may subsequently be

restored. The director shall maintain an account of release

credits earned by each prisoner.

D. The director, according to rules promulgated by

the department, may authorize the release of any pris-

oner who has earned release credits which, when added

to the time served by the prisoner, equal the sentence

imposed by the court which shall be the prisoner’s

earned release credit date. A prisoner on earned release

credit release is not under the control of the department

and the department is not required to provide parole

services or otherwise supervise any prisoner released,

except that the department may revoke the release of the

prisoner until the final expiration of his sentence if the

department has reason to believe that the released pris-

oner has engaged in criminal conduct during the term of

his release.

Added by Laws 1978, Ch. 165, § 18, eff. Oct. 1, 1978.

Amended by Laws 1980, Ch. 229, § 45, eff. April 23, 1980;

Laws 1986, Ch. 200 § 2.

App. 36

APPENDIX F

ARIZONA DEPARTMENT OF CORRECTIONS

DIRECTOR’S MANAGEMENT ORDER 91-03

SUBJECT: EFFECTIVE:

Earned Release Credit Date May 1, 1991

OPR: Al SUPERSEDES: N/A DISTRIBUTION: A

*1.0 PURPOSE: To insure that inmates approved for an

2.0

3.0

4.0

Earned Release Credit Date release meet Department

and statutory criteria. The Director retains the abso-

lute Discretion to modify this Order, as necessary, or

to ignore it altogether as circumstances require. Such

override may be made in the Director’s sole and

absolute discretion when needed to promote institu-

tional safety and security to account for other unique

concerns. This order is not a binding constraint on

the Director’s administrative decision-making pro-

cess, but merely serves as a guide to the Director’s

proper exercise of his sole discretion.

AUTHORITY:

A.R.S. 41-1604, Duties and Powers of the Director.

A.R.S. 41-1604.07, Earned Release Credits; Forfei-

ture; Restoration.

A.R.S. 31-414, Absolute Discharge of Parolee; Effect;

Notice to Victim.

APPLICABILITY: This policy is applicable to

inmates eligible for Earned Release Credit Date

release as defined by Arizona Revised Statute and

staff responsible for preparation of inmate cases for

release.

DEFINITIONS:

4.1 Committing Offense —- The offense for which

the inmate was convicted.

4.2

4.3

App. 37

Correctional Classification Profile (CCP) - The

summary of a series of factors and ratings

used in the inmate classification system.

Earned Release Credit Date (ERCD) — Pursuant

to A.R.S. 41-1604.07, the date when release

credits earned and actual time served

(includes credit for presentence incarceration),

equal the sentence imposed. This release only

applies to offenses committed on or after

August 13, 1986 for inmates who meet criteria

and is granted by the Director.

5.0 THE ORDER:

5.1

Eligibility Requirements - Inmates with date

of offense on or after August 13, 1986, who

meet the following criteria shall be approved

for Earned Release Credit Date release:

5.1.1 Inmates must have a Correctional Clas-

sification Profile with a Public Risk fac-

tor of 3 or below and an Institutional

Risk factor of 4 or below.

5.1.2 The committing offense must allow for

earning release credits; and

5.1.3 The inmate must earn the release

credits.

5.1.4 Special categories of inmates eligible for

Earned Release Credit Date consider-

ation are:

5.1.4.1 Inmates not eligible for provi-

sional release due to the length

of sentence or who become eli-

gible for provisional release

and earned release credit date

at the same time due to the

length of sentence.

App. 38

5.1.4.1.1 Inmates who are

denied a provisional

release due to an

Institutional Risk

Factor rating of 4.

5.1.4.2. Inmates who receive sentence

modification and become

immediately eligible for an

earned release credit date.

5.2 Ineligible for Earned Release Credit Date

Release - The following categories of inmates

shall be ineligible for Earned Release Credit

Date release:

5.2.1

oe

D.ded

5.2.4

Inmates whose committing offense

occurred prior to August 13, 1986.

Inmates with Public Risk Score of 4 or

above or an Institutional Risk Score of 5

as a result of the Institutional Classifica-

tion and Central Office Classification

review.

Inmates who are not eligible for provi-

sional release due to a Public Risk Score

of 4 or above or an Institutional Risk

Score of 5 as a result of the Institutional

Classification and Central Office Classi-

fication review. (See ADC Policy

#303.10, Provisional Release.)

Inmates who are denied Earned Release

Credit Date release by the Administra-

tor of the Offender Services Bureau,

when it is determined that such denial

is in the best interests of the public’s

health, safety, or welfare. The denial,

with stated reasons, shall be provided

to the inmate.

I

5.4

App. 39

New Commitments to the Department -

Within 20 workdays of the inmate’s commit-

ment to the Department, the Time Computa-

tion Unit of the Offender Services Bureau shall

project the Earned Release Credit Date for

those inmates earning release credits who are

not eligible for provisional release due to sen-

tencing or statute.

5.3.1 When an inmate who is eligible for an

Earned Release Credit Date enters the

Reception Center, the Institution Classi-

fication Committee shall complete the

Institutional Endorsement Form, ADC

Form #70501069, at the time of the

inmate’s initial classification. The Insti-

tutional Classification Committee shall

submit the completed form to Central

Classification for processing.

All Inmates Who Meet Criteria - The inmate’s

assigned Correctional Program Officer (CPO)

or concurrent custody case manager shall com-

plete the Institutional Endorsement Form for

all inmates who meet the criteria outlined in

Section 5.1.4.1 and 5.1.4.2.

5.4.1 The Classification and Parole Super-

visor (CPS) of each institution shall

ensure the Institutional Endorsement

Form is completed at each level and the

inmate is notificd if determined to be

ineligible.

5.4.2 The completed form shall be submitted

to the Institutional Classification Com-

mittee.

5.4.3. The Institutional Classification Commit-

tee shall update each eligible inmate's

5.4.4.

App. 40

Correctional Classification Profile 150

days prior to the release eligibility date

and shall submit the Institutional

Endorsement Form to Central Classi-

fication for processing.

5.4.3.1.

An inmate determined not eli-

gible for Earned Release Credit

Date release shall remain in

institutional status until the

inmate’s sentence expiration

date, unless released by other

means.

Within thirty days of Central Classifica-

tion’s receipt of the Institutional

Endorsement Form, the Administrator,

Offender Services Bureau, shall ensure

that:

5.4.4.1

5.4.4.2

5.4.4.3

5.4.4.4

Central Classification verifies

the updated CCP and endorses

or denies the Earned Release

Credit Date release.

Central Classification forwards

the Institutional Endorsement

Form to the Time Computation

Unit.

If approved, the Time Comput-

ation Unit verifies the release

eligibility dates, annotates the

AIMS DTO8 screen indicating

final release confirmation and

forwards a copy of the com-

pleted institutional Endorse-

ment Form to the institution.

If denied, the Time Computa-

tion Unit recalculates the

oy ee

5.5

5.6

App. 41

inmate’s release dates, notifies

the institution and sends a

copy of the completed Institu-

tional Endorsement to the

institution.

Inmates Who Do Not Meet Provisional Release

Criteria - Inmates reviewed for provisional

release who do not meet criteria shall also be

reviewed for Earned Release Credit Date eligi-

bility.

5.5.1 The Institutional Classification Commit-

tee and Central Office Classification

shall enter on the Institutional Endorse-

ment Form if the inmate is eligible for

Earned Release Credit Date release. No

further review is required at that time to

determine eligibility.

Subsequent Eligibility After The 150-day

Administrative Review - If a normal

reclassification occurs after the 150-day admin-

istrative review which subsequently deems the

inmate eligible for Earned Release Credit Date

release, the inmate shall be determined to be

eligible up to 30 days before the Earned

Release Credit Date.

5.6.1 The Institution Classification Commit-

tee shall complete the required sections

of a new Institutional Endorsement

Form within two workdays and forward

it to Central Classification. The eligi-

bility shall be noted as a subsequent

reclassification in the Comments sec-

tion.

5.7

5.8

App. 42

5.6.2 Central Classification shall verify the

updated CCP and forward it to the Time

Computation Unit.

5.6.3 The Time Computation Unit shall pro-

cess the Institutional Endorsement Form

within five workdays and notify the

institution by AIMS message router.

Appeal — Inmates may appeal the rating on the

updated CCP to the Administrator, Offender

Services Bureau, within five workdays of

receipt of notification of the verified CCP.

5.7.1 Upon receipt of the appeal, the Admin-

istrator, Offender Services Bureau, shall

have ten workdays in which to respond.

His decision shall be final.

Concurrent Custody/Interstate Compact

5.8.1 For concurrent custody inmates serving

an Arizona sentence in another jurisdic-

tion, the inmate’s Institutional Endorse-

ment Form shall be calculated within 20

workdays of receipt of the certified

commitment by Central Office. The

Institutional Endorsement Form for

Interstate Corrections Compact cases

shall be calculated and processed in

accordance with section 5.1.1, 5.4 and

aD.

5.8.2 The concurrent custody case manager

shall request a current progress report

on concurrent custody inmates 180 days

prior to the release eligibility date. Cen-

tral Office Classification shall determine

the eligibility of the inmate within ten

workdays of receipt of the progress

report and forward the Institutional

5.9

App. 43

Endorsement Form to the concurrent

custody case manager.

5.8.2.1 The inmate’s CCP rating shall

be determined by Central

Office Classification based on

progress reports from the other

state or federal jurisdiction.

5.8.3 If the inmate meets the eligibility crite-

ria, the concurrent custody case man-

ager shall notify the other jurisdiction

and drop the detainer on a concurrent

custody case.

5.8.4 The Central Office Special Services Sec-

tion shall coordinate the Earned Release

Credit Date release process for Inter-

state Corrections Compact inmates with

the concurrent custody case manager.

5.8.5 If the inmate does not meet the eligi-

bility criteria, the Special Services Offi-

cer shall notify the other jurisdiction,

and the concurrent custody case man-

ager shall complete a new time comput-

ation.

Rescission of an approved Earned Release

Credit Date release prior to the release of an

inmate — if an inmate’s CCP score changes

from an eligible to an ineligible score as a

result of a classification hearing, or when an

inmate is convicted of a Group I or II violation

of the Rules of Discipline, the Warden, Deputy

Warden, or Administrator shall request a

rescission of the Earned Release Credit Date

release by completing the required sections of

a new Institutional Endorsement Form.

5.9.1

5.9.2

5.9.3

App. 44

The required sections include the

inmate’s name, ADC#, date of birth,

institution location, and the request for

rescission portion of the form.

The completed form shall be forwarded

to the Administrator, Offender Services

Bureau, for review and action.

Inmates may appeai the rating on the

updated CCP to the Administrator,

Offender Services Bureau, within five

workdays of receipt of notification of

the verified CCP.

5.10 Release Conditions — Inmates released under

Earned Release Credit Date release shall not

be supervised by the Department of Correc-

5.11

tions.

5.10.1 Inmates released on provisional

release shall be released from super-

vision on their Earned Release Credit

Date, unless the provisional release is

rescinded.

5.10.2 Inmates who have signed a

Provisional Release Waiver, who are

eligible for Earned Release Credit

Date release, shall be released on

their Earned Releases Credit Date.

5.10.2.1 Inmates may not waive an

Earned Release Credit Date

release.

Inmates Released on Parole - The Time Com-

putation Unit shall calculate an Earned

Release Credit Date for all inmates released

on parole to include all release credits earned.

5.12

5.11.1

App. 45

Inmates shall not earn release credits

while on parole.

Absolute Discharge - Inmates on parole sta-

tus shall be referred to the Arizona Board of

Pardons and Paroles for consideration of

Absolute Discharge on their Earned Release

Credit Date.

5.12.1

Dok bode

YB

5.12.4

5.129

The Time Computation Unit shall

compile an Earned Release Credit

Date/Absolute Discharge eligibility

list each month.

The Earned Release Credit Date/

Absolute Discharge eligibility list

shall be sent to the Arizona Board of

Pardons and Paroles and the Com-

munity Corrections Division sixty

days prior to the Earned Release

Credit Date. ,

The Community Corrections Division

shall review the list and forward any

comments or recommendations to

the Board of Pardons and Paroles

thirty days prior to the Earned

Release Credit Date.

If the Board of Pardons and Paroles

denies the Absolute Discharge, the

inmate shall remain under parole

supervision until the Sentence Expi-

ration Date or until released by other

means.

If the Board of Pardons and Paroles

approved the Absolute Discharge,

the Director of the Department of

Corrections shall release the inmate

from parole supervision and issue an

App. 46

Absolute Discharge, ADC Form

#41002001.

6.0 IMPLEMENTATION: Implementation shall occur

on the effective date of this Order. This Order shall

remain in effect until replaced by permanent

Department policy or rescinded.

/s/ Samuel A. Lewis

Samuel A. Lewis

Director

Forms

Certificate of Absolute Discharge, ADC Form #41002001.

Institutional Endorsement Form, ADC Form #70501069.