Carver v. Lehman

558 F.3d 869, 2009 U.S. App. LEXIS 7022, 2009 WL 514205

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 3, 2009
• Docket: 06-35176
• Status: Published

Opinions

Opinion by Judge Milan D. Smith, Jr.; Concurrence by Judge Reinhardt.

ORDER AND AMENDED OPINION

ORDER

The opinion and concurrence filed on December 22, 2008, and appearing at 550 F.3d 883 (9th Cir.2008) are hereby amended. The amended opinion and concurrence are filed concurrently with this order.

The petition for rehearing en banc filed January 20, 2009, remains pending.

No further petitions for rehearing or for rehearing en banc may be filed.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

This case presents the question whether a Washington state law providing for convicted sex offenders’ early release into community custody creates a liberty interest that is protected under the Due Process Clause of the Fourteenth Amendment. We hold that it does not. We therefore affirm the decision of the district court denying Carver relief in this civil rights action.

Factual and Procedural Background

In August 1999, Joseph Dale Carver, then 20 years old, pled guilty to child molestation in the third degree. This conviction followed two prior convictions for child molestation in the first degree and a conviction for third-degree assault. Carver committed his first sex offense at age 14. He was sentenced to fifty-four months of confinement in the custody of the Washington State Department of Corrections (“DOC”) for his 1999 conviction. The brief record on appeal indicates Carver committed fifteen disciplinary infractions while incarcerated, including sexual harassment of a prison staff member.

Washington Revised Code § 9.94A.728(l)(b)(ii)(B)(I) prohibits early release for those convicted of sex offenses. However, section 9.94A.728(2)(a) provides that sex offenders may become eligible for transfer to community custody in lieu of early release.¹ Carver was sentenced to a consecutive thirty-six month period of community custody to begin on his adjusted release date.² Carver’s behavior as a prisoner resulted in an adjusted release date of January 13, 2003.

Before an inmate is eligible for transfer to community custody, he must submit an acceptable “release plan.” Wash. Rev. Code § 9.94A.728(2)(c). Carver submitted his proposed plan in March 2002. It was denied in April 2002, pursuant to a DOC policy then in effect which provided for the categorical denial of release plans of offenders, like Carver, whom the DOC determined “appealed] to meet the definition of a sexually violent predator and [who had] been referred for Civil Commitment. ...” DOC Policy Directive 350.200 (May 4, 2001).³ As a result of the denial of his proposed release plan, Carver served his full term of confinement.

In September 2004, Carver filed a civil rights suit under 42 U.S.C. § 1983, asserting that DOC officials denied him early release into community custody without affording him due process of law under the Fourteenth Amendment.⁴ The district court, adopting the report and recommendation of the magistrate judge, granted the DOC officials’ motion for summary judgment on two principal grounds: first, that Washington law does not create a liberty interest in early release into community custody and, therefore, Carver did not have a due process right protected by the Fourteenth Amendment; and second, that even if such a right existed, Defendant Lehman was entitled to qualified immunity. Carver timely appealed.

Jurisdiction and Standard of Review

We have jurisdiction to review the district court’s determination pursuant to 28 U.S.C. § 1291, and we review de novo its grant of summary judgment and finding of qualified immunity. See Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir.2001); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007).

Discussion

The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law-” U.S. Const, amend. XIV, § 1. Our analysis of due process claims proceeds in two steps. “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citation omitted).

“A liberty interest may arise from either of two sources: the due process clause itself or state law.” Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir.1986). Carver concedes that the Due Process Clause does not create a liberty interest in an inmate’s “conditional ] release[ ] before the expiration of a valid sentence.” Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Rather, he argues that Washington’s statutory scheme governing early release into community custody “uses mandatory language, ‘creating] a presumption that ... release will be granted’ ... unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest.” McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir.2002) (quoting Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100; citing Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). As in prior cases, our task here is to apply the well-established mandatory language rule governing state-created liberty interests set forth by the Supreme Court in Green-holtz and Allen to the Washington sex offender statutory scheme at issue.⁵ See, e.g., Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir.2006) (holding that California law creates a liberty interest in parole); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003) (same); McQuillion, 306 F.3d at 901-902 (same); Bermudez v. Duenas, 936 F.2d 1064, 1065-66 (9th Cir.1991) (holding that Guam law creates a liberty interest in parole); Baumann v. Ariz. Dep’t of Corr., 754 F.2d 841, 843-45 (9th Cir.1989) (holding that Arizona law does not create a liberty interest in custodial release); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 469-70 (9th Cir.1989) (holding that Idaho law does not create a liberty interest in parole).

Washington law mandates that an individual convicted of a sex offense be sentenced to a term of community custody that “shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release.” Wash. Rev. Code § 9.94A.710(1). Unlike other inmates, then, a convicted sex offender who accrues “earned release time ... for good behavior and good performance” is not entitled to early release; rather, he is eligible for discretionary transfer into community custody at an earlier date if his proposed placement is appropriate. Id. § 9.94A.728(1), (2)(a). The law requires the DOC to develop a suitable program to effectuate the transfer to community custody of such inmates. See id. § 9.94A.728(1). As part of that program, the DOC must “require the offender to propose a release plan that includes an approved residence and living arrangement.” Id. § 9.94A.728(2)(c). The law then describes how the DOC, in exercising its broad discretion, should evaluate such release plans:

The department may deny transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section if the department determines an offender’s release plan, including proposed residence location and living arrangements, [1] may violate the conditions of the sentence or conditions of supervision, [2] place the offender at risk to violate the conditions of the sentence,[3] place the offender at risk to reoffend, or [4] present a risk to victim safety or community safety. The department’s authority under this section is independent of any court-ordered condition of sentence or statutory provision regarding conditions for community custody or community placement....

Id. § 9.94A.728(2)(d) (emphasis added).

In order to comply with the statute, the DOC promulgated Policy Directive 350.200. Under the version of this policy in force when Carver submitted his release plan, the DOC instructed that release plans of sex offenders be assessed to determine “the degree of risk for victims and potential victims of similar age or circumstances” and to ensure that, subject to certain exceptions, “[s]ex offenders will not return to a residence where minor vie-tim(s) or other children of similar age are present in the residence.” DOC Policy Directive 350.200 (May 4, 2001). This Policy Directive specified that a residence proposed by an offender within a release plan could be denied if the proposed location would place the offender in violation of court-imposed conditions; at the likely risk to re-offend; or in close proximity to the minor victim(s), schools, child care centers, playgrounds, or other facilities where children of similar age and circumstances surrounding the conviction are present and who may be put at substantial risk of harm by the offender residing at that location.⁶ The DOC’s policy also provided for the categorical denial of release plans “if the End of Sentence Review Committee has determined that the offender appears to meet the definition of a sexually violent predator and s/he has been referred for Civil Commitment....”⁷ This final provision, under which Carver’s release plan was denied, was subsequently eliminated after the Washington Court of Appeals held that it violated the statutory requirement that all sex offenders “may become eligible” for community custody. See Dutcher, 60 P.3d at 638-40.

Carver argues that this statutory scheme creates a protected liberty interest because it requires the DOC to transfer an inmate to community custody in lieu of earned release “unless any one of the ... specifically designated reasons are found[,]” thereby “creating] a presumption that ... release [into community custody] will be granted, and that this in turn creates a legitimate expectation of release absent the requisite finding that one of the justifications for [denial] exists.” Greenholtz, 442 U.S. at 11-12, 99 S.Ct. 2100; see also Allen, 482 U.S. at 377-78, 107 S.Ct. 2415. We disagree. In order to create a constitutionally protected liberty interest, a statute must contain “ ‘explicitly mandatory language/ ie., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow.” Thompson, 490 U.S. at 463, 109 S.Ct. 1904 (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). There is no “explicitly mandatory language” in section 9.94A.728(2) creating a substantive right to transfer to community custody. The statute, using classically permissive language, states that a “person convicted of a sex offense ... may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned release time.” Wash. Rev. Code § 9.94A.728(2)(a). The only “explicitly mandatory language” in section 9.94A.728(2) concerns a procedural right to an individualized determination based on the merits of a proposed release plan.⁸ That language cannot create a “liberty interest” within the meaning of the Fourteenth Amendment because “expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause” of the Fourteenth Amendment. Olim v. Wakinekona, 461 U.S. 238, 250-51 n. 12, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); see also In re Cashaw, 123 Wash.2d 138, 866 P.2d 8, 12 (1994) (“The United States Supreme Court and the Ninth Circuit have clearly held that procedural laws do not create liberty interests; only substantive laws can create these interests.”).⁹

Pursuant to that procedural mandate, the DOC has no “discretion to decide whether or when to consider an offender for transfer to community custody,” In re Liptrap, 127 Wash.App. 463, 111 P.3d 1227, 1232 (2005) (emphasis added). But Washington law places no substantive limitation on how the DOC is to make that determination. As noted above, section 9.94A.728(2)(d) enumerates four criteria for evaluating the transfer plan. The statute instructs that the DOC “may deny transfer to community custody if’ one or more of those criteria are met. Id. (emphasis added). Far from setting forth “substantive predicates” under which the DOC must grant transfer, the statute is silent regarding even precatory criteria for granting transfer to community custody, specifying only when the DOC “may” — but need not¹⁰ — “deny.”

No particular words are necessary to create a liberty interest.¹¹ If the section 9.94A.728(2)(d) criteria for denying transfer constituted an exhaustive list of reasons for denial, the language would be effectively mandatory, giving rise to a presumption of transfer. Nothing in the statute, however, indicates that those four criteria are the sole reasons for which the DOC may deny transfer.¹² To the contrary: immediately following the enumeration, the statute goes on to state that the DOC’s “authority under this section is independent of any court-ordered condition of sentence or statutory provision regarding conditions for community custody or community placement.” Wash. Rev. Code § 9.94A.728(2)(d). The statute’s manifest purpose, therefore, is to preserve to the DOC the discretion to deny transfer in the event that it makes one of the four determinations, notwithstanding what other legal sources might otherwise require.

To convert this non obstante permissive clause, meant to preserve discretion in certain cases, into an expressio unius provision that would limit discretion to all but those cases would be to invert the very purpose for which this statute was drafted.¹³ These statutes were enacted to protect the community from recidivist offenders whose proclivity to sexually abuse children is well-documented and whose anti-social tendencies are notoriously difficult to remedy through traditional peno-logical methods. Carver’s record would cause any reasonably cautious state official to pause before authorizing even closely supervised release to the community. On the basis of his prior record alone- — even before this latest conviction— a Washington superior court found probable cause that Carver was a sexually violent predator. A forensic psychological examination had concluded that Carver was, in his own words, “a civil commitment case” — that is, he was found to meet the criteria of a sexually violent predator. Section 9.94A.728(2)(d) reserves discretion for DOC officials precisely so they may deny release plans of prisoners like Carver who remain threats to the community.

Our reading of section 9.94A.728(2)(d) is consistent with the case law of the Washington state courts construing it.¹⁴ In the text of In re Liptrap, the Washington Court of Appeals noted that the statute “stat[es] reasons why the department may deny a release plan,” 111 P.3d at 1232, but kept those “reasons” in the indefinite: they are just “reasons” — not the reasons, let alone the only reasons — for denial. Similarly, In re Dutcher held simply that “the statute ... requires DOC to base its community custody eligibility decisions on the merits of the release plan,” 60 P.3d at 638, which is hardly to imply that section 9.94A.728(2)(d) provides the sole rubric by which those “merits” are to be evaluated.

It is true that the cases cited above refer to a “limited liberty interest” held by prisoners in transfer to community custody. Liptrap, 111 P.3d at 1231; see also Dutcher, 60 P.3d at 636 (describing a “limited but protected liberty interest” in transfer); Crowder, 985 P.2d at 945 (“The statutory right to earned early release creates a limited liberty interest requiring minimal due process.”). We must not be confused, however, by those decisions’ use of a Fourteenth Amendment term of art: those cases concerned only the procedural right to compliance with individualized consideration on the merits of prisoners’ release plans, secured by Washington Rule of Appellate Procedure 16.4(a). Liptrap, 111 P.3d at 1234; Dutcher, 60 P.3d at 638. To the extent they contain dicta using the same term, “liberty interest,” to refer to both a substantive right to transfer and a procedural right to consideration on the merits, the most logical reading is that both derive from Washington law, and are hence of the same sub-constitutional nature. Regardless, those dicta provide no justification for disregarding the plain language of the statute.

Washington appellate courts have been careful to distinguish between the state habeas relief available through personal restraint petitions for violations of state law, and personal restraint petitions to redress violations of a constitutional magnitude. The decisions in Dutcher, Crow-der, and Cashaw are examples of the former. In Cashaw, the Washington State Supreme Court explicitly rejected the lower court’s holding that the Indeterminate Sentence Review Board’s failure to follow mandatory parole procedures constituted an infringement of Fourteenth Amendment Rights. 866 P.2d at 12. Though it concluded that “the Board had violated its own procedural rules for parolability hearings,” it specifically held it was error to conclude “this violation was of constitutional magnitude.” Id. at 13. The cases that refer to a “limited liberty interest” do not support Judge Reinhardt’s conclusion that state law regarding community custody creates a liberty interest arising under the Constitution.

Washington courts have implied only one limit on the substance of the DOC’s exercise of discretion: its reasons for denial must be “legitimate.” Liptrap, 111 P.3d at 1234; Crowder, 985 P.2d at 946. But there is no indication that a reason may acquire “legitimacy” only by its enumeration in section 9.94A.728(2)(d). Indeed, every indication is to the contrary: In re Crowder, the first case to imply a requirement of “legitimate reasons” for denial of transfer to community custody, specified the petitioner’s “own withdrawal of a suggested placement plan” as one of the “legitimate reasons” for denying him transfer, 985 P.2d at 946—a reason which certainly seems legitimate, but appears nowhere in section 9.94A.728(2)(d).¹⁵ No Washington case has provided a general definition for what makes a reason “legitimate,” which could be as broad as “any reason having a rational basis,” or even “any reason not otherwise proscribed by law.” This ill — defined “right” to transfer only in the absence of some “legitimate” reason to deny is hardly a sufficient “substantive predicate” to produce the “legitimate expectation of release” required of a protected liberty interest under Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100.

The analysis employed by the Washington courts in parole and community release cases confirms our conclusion that section 9.94A.728(2)(d) does not create a liberty interest. DOC officials had legitimate concern that Carver, based on his multiple sex convictions and behavior in prison, had not presented an acceptable release plan to alleviate the concern for public safety. The Constitution requires no more.

Response to Preamble of Concurrence

We readily acknowledge the self-evident truth of Judge Reinhardt’s observation that in our judicial system the out-come of important appellate cases can vary based on the composition of the judicial body or panel deciding those cases. It has been so ever since the founding of the Republic. We respectfully disagree, however, with much of the balance of our concurring colleague’s pre ambular observations about the processing of this case, and we feel a response is required.

Our colleague states that the “Constitution did not change between the time of the original panel’s decision and the time of the new majority’s opinion. All that changed is the composition of the three-judge panel.” Concurrence at 2511. This implies that the previous panel majority unearthed an unalloyed constitutional nugget waiting to be discovered within the primordial crust of the Fourteenth Amendment, but which must now be reinterred and disregarded as a result of the passing of one of our colleagues. This implication ignores Judge Reinhardt’s candid admission that “[t]he constitutional question is a close one, and substantial arguments can be made for either position.” Concurrence at 2512. It further disregards both the rules of our court and the vicissitudes of life.

The respective corpora of the opinion and concurrence in this case discuss the disputed nature of the constitutional question. But whatever the merits of each side’s constitutional analysis, we respectfully disagree with Judge Reinhardt’s contention that the prior majority’s opinion actually became a binding construction of the Constitution before Judge Ferguson’s death, and that it is somehow unseemly to amend a published opinion when the reason for the change is the death of a member of the prior majority. No opinion of this circuit becomes final until the mandate issues, and the opinion issued by the prior majority was only part way through its finalization process.¹⁶ Until the mandate has issued, opinions can be, and regularly are, amended or withdrawn, by the merits panel at the request of the parties pursuant to a petition for panel rehearing, in response to an internal memorandum from another member of the court who believes that some part of the published opinion is in error, or sua sponte by the panel itself. For example, in the ninety days between July 11, 2008, and October 9, 2008, at least ten published opinions were withdrawn¹⁷ and at least ten opinions were amended¹⁸ in our circuit. Thus, the prior majority’s holding in this case may or may not have survived until the mandate issued, but it was certainly not yet enshrined as a binding construction of the Constitution when Judge Ferguson died. Even when an opinion deals with a constitutional issue, the referenced collaborative process strengthens, not weakens, the final quality of those opinions, thereby better enabling them to stand the test of time, and engender the respect of thoughtful citizens for both the opinion, and the court that produced it.

Judge Reinhardt also suggests that the only appropriate way to have changed the previous panel’s decision was to initiate an en banc process. En banc review is appropriate under our rules only when a panel decision (a) conflicts with decisions from another circuit, (b) conflicts with pri- or decisions of our own circuit, or (c) “substantially affects a rule of national application in which there is an overriding need for national uniformity.” 9th Cir. R. 35-1; see also Fed. R.App. P. 35(a)(1). As our colleague well knows, the previous panel’s majority opinion does not technically qualify for en banc review under our rules,¹⁹ and it is very difficult to obtain en banc review of a case in our court.²⁰ Had we accepted his recommendation, the original opinion would undoubtedly have remained unchanged, the very result preferred by our colleague.

Conclusion

Because Washington law does not create a liberty interest in transfer to community custody, we need not address the sufficiency of the procedures given (or denied) Carver. The judgment of the district court is AFFIRMED.

Each party shall bear its own costs on appeal.

1 ."Community custody is the intense monitoring of an offender in the community for a period of at least one year after release or transfer from confinement. Although it has other purposes, community custody continues in the nature of punishment, and is not equivalent to general release.” In re Crowder, 97 Wash.App. 598, 985 P.2d 944, 945 (1999) (footnote omitted). Offenders in community custody live in a residence pre-approved by the DOC and are subject to mandatory and discretionary conditions imposed by either the DOC or the sentencing court. See, e.g., Wash. Rev. Code §§ 9.94A.710(2)-(3), 9.94A.700(4)-(5) (listing mandatory and discretionary conditions imposed on offenders subject to community custody including reporting requirements, payment of supervision fees, and prohibitions against possession of controlled substances and consumption of alcohol).

2 . When an inmate is first transferred to the DOC, the DOC calculates three possible release dates for the inmate. First, the maximum release date is the date the inmate would finish serving the entire sentence imposed. Second, the earned early release date is the date the inmate would be released if he earned all available sentence reductions and does not lose time for misbehavior. Third, the adjusted release date is the projected date on which the inmate would be released if he loses no further good time or earned time credits.

3 . As we explain infra, this policy was subsequently struck down by the Washington Court of Appeals in In re Dutcher, 114 Wash.App. 755, 60 P.3d 635, 640 (2002) (holding that "DOC Policy 350.200 ... violates the governing statutes”).

4 . Carver's original complaint named as a defendant only Joseph Lehman, secretary of the DOC at the time that Carver’s release plan was denied. In his amended complaint, Carver named two additional defendants, Kimberley Acker and Victoria Roberts, both DOC officials involved in making end of sentence review determinations. The district court adopted the magistrate judge's finding that Acker and Roberts were entitled to summary judgment because Carver failed to show that "these defendants played any part in enacting the policy that precluded [Carver] from being considered for release.” Carver does not appeal this portion of the judgment below.

5 . In his response brief, Lehman argued that Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), should control our liberty interest inquiry. In Sandin, the Supreme Court considered a challenge to a prison regulation imposing disciplinary segregation for misconduct. Id. at 475-77, 115 S.Ct. 2293. In holding that the regulation did not create a liberty interest, the Court did not apply the "mandatory language” framework of Greenholtz and Allen. Id. at 481-86, 115 S.Ct. 2293. Instead, it focused on whether the challenged restraint arising from the regulation "impose[d] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293; see also Wilkinson v. Austin, 545 U.S. 209, 222-24, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (applying Sandin to determine whether Ohio inmates have a liberty interest in avoiding placement in a "super-max” prison). As Lehman properly conceded in his supplemental submissions to the court, we have since held that Sandin's holding was limited to “the separate but related question of when due process liberty interests are created by internal prison regulations.” McQuillion, 306 F.3d at 902-03 (emphasis added). See also Sass, 461 F.3d at 1127 n. 3 (explaining that this court has "consistently rejected th[e] argument” that Sandin eliminated the " 'mandatory language’ approach of Green-holtz and Allen "). Accordingly, we continue to apply the "mandatory language” rule set forth in Greenholtz and Allen in order to determine whether Washington's statutory scheme creates a liberty interest in early release into community custody.

6 . The last criterion derives from section 72.09.340(3)(a), which provides that the DOC is "authorized to reject a residence location if the proposed residence is within close proximity to schools, child care centers, playgrounds, or other grounds or facilities where children of similar age or circumstance as a previous victim are present who the department determines may be put at substantial risk of harm by the sex offender's residence at that location.” Wash Rev. Code § 72.09.340(3)(a) (2006).

7 . Washington law defines "sexually violent predator” as "any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Wash. Rev. Code § 71.09.020(16) (2006). An offender determined to be a sexually violent predator may be subject to civil commitment after his term of confinement. Wash. Rev. Code § 71.09.010 (2006). Carver’s criminal record and poor behavior while incarcerated provide sufficient basis on which the DOC could reasonably determine that Carver appeared to meet the definition of a sexually violent predator and that it would be appropriate to refer him to be civilly committed for further custodial treatment after he completed his criminal sentence. The legislature of the State of Washington has enacted a civil commitment custodial treatment program run by the Department of Social & Health Services in which dangerous sexual predators may be safely held while efforts are made to treat their condition. See Wash. Rev. Code § 71.09.010.

8 .Subsection (2)(c) reads: "The department shall, as a part of its program for release to the community in lieu of earned release, require the offender to propose a release plan that includes an approved residence and living arrangement.” As the Washington Court of Appeals in In re Dutcher held, this language, combined with language in subsection (2)(d), mandates that the DOC make an individualized determination "based on the merits of a release plan.” 60 P.3d at 638. The DOC’s failure to provide such an evaluation rendered unlawful its further detention of sex offenders without an individualized determination, a statutory wrong for which the Washington Rules of Appellate Procedure provide relief. See Wash. R.App. P. 16.4(a), (c)(2) (providing that "the appellate court will grant appropriate relief to a petitioner if ... the petitioner’s restraint is unlawful.”). Thus, Dutcher stands for the proposition that release plans may not be categorically denied. It does not require that release plans be categorically approved.

9 . Cashaw, like Dutcher, instead grounded the inmate’s right to challenge his restraint because of procedural error in Washington Rule of Appellate Procedure 16.4. Id. at 13-14.

10 . Section 72.09.340(3) contains two narrower circumstances under which "the department shall not approve a residence location”: if the proposed residence includes a minor child who might be put at risk, or if it is close in proximity to the current residence of the prisoner’s minor victim.

11 . In Allen, the Supreme Court “rejected] the argument that a statute that mandates release 'unless' certain findings are made is different from a statute that mandates release 'if,' 'when,¹ or 'subject to’ such findings being made.” 482 U.S. 369, 378, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987).

12 . If, for example, the statute stated that DOC "may” deny transfer "only if” certain criteria are met or "unless” they are not, that might sufficiently limit the discretion of the DOC to the point it creates an expectation of release. The distinction between "if” and "only if,” however, is not a mere quibble over vocabulary — it goes right to the heart of whether the criteria of section 9.94A.728(2)(d) are necessary or sufficient conditions for transfer, and therefore whether transfer is mandatory or entirely discretionary. "May ... only if” would be effectively identical to "shall ... unless”; "may ... if” is not.

13 . The canon of construction expressio unius est exclusio alterius stands for the proposition that, when the legislature provides a list of related items, it impliedly means to exclude other items not listed. See Norman J. Singer, 2A Sutherland Statutes and Statutory Construction § 47:23 (7th ed.2007). Such a result will obtain, however, only in the absence of evidence to the contrary. "The maxim expressio unius est exclusio alterius is an aid to construction, not a rule of law. It can never override clear and contrary evidences of [legislative] intent.” Neuberger v. Comm’r, 311 U.S. 83, 88, 61 S.Ct. 97, 85 L.Ed. 58 (1940); see also Wash. State Labor Council v. Reed, 149 Wash.2d 48, 65 P.3d 1203, 1209 (2003) ("[T]he rule of expressio unius est ex-clusio alterius d[oes] not necessarily apply without considering other factors which may persuade the court that legislative intent was the opposite of what the statutory construction rule would require.”). In this case, the statement that sex offenders only "may” receive transfer, combined with the final sentence of the paragraph, make clear the permissive intent of the statute.

14 ."Whether a state statute provides such a protectable entitlement depends on the structure and language of the statute, as well as the state courts' interpretation of the scope of the interest.” Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir.1989) (emphasis added).

15 . In re Crowder predated the enactment of section 9.94A.728(2)(d) by three years. There is no indication in subsequent case law, however, that codification of certain reasons in section 9.94A.728(2)(d) has somehow narrowed the range of "legitimacy.”

16 . United States v. Ruiz, 935 F.2d 1033 (9th Cir.1991) clarifies that "no expectation of finality can attach during the period in which either party may petition for rehearing.” Id. at 1037 (quoting United States v. Foumai, 910 F.2d 617, 620 (9th Cir.1990)). Thus, until the mandate issues, an opinion is not fixed as "settled Ninth Circuit law,” and reliance on the opinion is a "gamble.” Id. Moreover, in recognition of the human condition, our rules provide that "[i]f a member of a three-judge panel becomes unavailable by reason of death, disability, or departure from the court and the case is under submission, the Clerk shall draw a replacement by lot." Ninth Circuit General Orders 3.2g.

17 . Granados-Oseguera v. Mukasey, 546 F.3d 1011 (9th Cir.2008); Al-Mousa v. Mukasey, 545 F.3d 694 (9th Cir.2008); U.S. v. Gianelli, 543 F.3d 1178 (9th Cir.2008); Nguyen v. Mukasey, 292 Fed.Appx. 683 (9th Cir.2008); Amin v. Mukasey, — Fed.Appx. -, No. 04-74693, 2008 WL 4148531 (9th Cir. Sept. 4, 2008); Carver v. Lehman, 540 F.3d 1011 (9th Cir.2008); Center for Biological Diversity v. National Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir.2008); U.S. v. Marcos-Mora, 291 Fed.Appx. 39 (9th Cir.2008); Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116 (9th Cir.2008); Metzler Inv. GmbH v. Corinthian Colleges, Inc., 540 F.3d 1049 (9th Cir.2008).

18 . Center for Public Analysis on Trade and Health v. Office of U.S. Trade Representative, No. 06-16682, 2008 WL 4490366 (9th Cir. Oct. 8, 2008); Lopez-Gutierrez v. Mukasey, 295 Fed.Appx. 883 (9th Cir.2008); Hernandez v. Lamarque, 295 Fed.Appx. 235 (9th Cir.2008); U.S. v. Grubbs, 293 Fed.Appx. 500 (9th Cir.2008); Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049 (9th Cir.2008); Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir.2008); Marceau v. Blackfeet Housing Authority, 540 F.3d 916 (9th Cir.2008); Walter v. Drayson, 538 F.3d 1244 (9th Cir.2008); Smith v. County of Riverside, - Fed.appx. -, No. 06-56848, 2008 WL 2872623, (9th Cir. July 24, 2008); U.S. v. Lopez, 2008 WL 2745948, No. 07-35389, (9th Cir. July 16, 2008).

19 . The prior concurrence did not note, and there are no, conflicts with other circuits, nor direct conflicts with Supreme Court rulings. As discussed in this opinion, this is an issue of first impression for the Ninth Circuit. Finally, as discussed in the substance of this opinion, the issue in this case is one concerning Washington's statutory scheme governing early release into community custody. This is not an issue affecting national uniformity, only one specific to Washington state.

20 . Of the 1097 Petitions for Rehearing En Banc that were filed in 2007, nineteen cases were taken en banc (1.7%).

1 . For the benefit of my colleagues in the majority, I should state that I, of course, do not believe that the original panel majority unearthed a “constitutional nugget,” Maj. Op. at 878, alloyed or otherwise. This is simply a case in which Judge Ferguson and I tried our best to do our job, including the mundane task of seeing that prisoners, like all other persons, are afforded the rights to which they are entitled under the law. I recognize that these days there are many who do not share the view that prisoners’ rights deserve judicial protection, but neither Judge Ferguson nor I was aware of any constitutional or statutory provision to that effect, except per-haps for the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §§ 2241 et seq.