Josselyn v. Powell
Opinion
USCA1 Opinion
September 2, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-2436
DAVID A. JOSSELYN,
Petitioner, Appellant,
v.
RONALD POWELL, ET AL.,
Respondents, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
___________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
___________________
David A. Josselyn pro se on Application for Certificate of
_________________
Probable Cause.
__________________
__________________
Per Curiam. Pro se prisoner David Josselyn seeks a
__________ ___ __
certificate of probable cause to appeal the district court's
summary denial of his petition for habeas corpus. Josselyn
is presently incarcerated in Massachusetts. He is serving
Massachusetts and New Hampshire prison sentences. His habeas
petition names the Warden of the New Hampshire State Prison
and the Commissioner of the New Hampshire Department of
Corrections as respondents. The habeas petition seeks to
compel the New Hampshire respondents to restore certain good
time credits which Josselyn was compelled to forfeit from his
New Hampshire prison record following a September 1989 escape
attempt from the Massachusetts Correctional Institution
(M.C.I.) at Norfolk. After this escape attempt, Josselyn
was subjected to internal disciplinary proceedings instituted
by the Massachusetts Department of Corrections (MA-DOC). The
MA-DOC sanctioned Josselyn by requiring him to forfeit 500
good time credits.1 In contrast, the New Hampshire
Department of Corrections (NH-DOC) compelled Josselyn to
forfeit all of the good time credits he had earned thus far
on his New Hampshire prison sentence. Josselyn's habeas
____________________
1. The MA-DOC also punished Josselyn with 15 days of
isolation, 2 years in segregation, and reclassification to a
higher security prison. Josselyn filed a 42 U.S.C. 1983
action against various Massachusetts prison officials which
challenged, inter alia, the disciplinary proceedings which
_____ ____
resulted in his loss of 500 days of good time credits in
Massachusetts. This court affirmed summary judgment for
those defendants in Josselyn v. Poirier, et al., slip op. No.
________ _______________
92-1014, (1st Cir. July 27, 1992).
-2-
petition alleged that the NH-DOC's action violated the Double
Jeopardy Clause and his right to procedural due process
insofar as the action was taken without advance notice to
Josselyn and an opportunity to defend himself.
To justify the issuance of a certificate of probable
cause, the petitioner must "make a 'substantial showing of
the denial of a federal right.'" Barefoot v. Estelle, 463
________ _______
U.S. 880, 893 (1983)(quoting Stewart v. Beto, 454 F.2d 268,
_______ ____
270 n. 2 (5th Cir. 1971), cert. denied, 406 U.S. 925(1972)).
____ ______
"[I]n order to make a substantial showing of the denial of a
federal right a petitioner who has been denied relief in a
district court '"must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
_____
the issues [in a different manner]; or that the questions are
'adequate to deserve encouragement to proceed further.'"'"
Lozada v. Deeds, 111 S.Ct. 860, 863 (1991) (citations
______ _____
omitted).
We have thoroughly reviewed the record and Josselyn's
memorandum to this court and conclude that Josselyn has
failed to make a substantial showing that he has been denied
a federal right. The Double Jeopardy Clause does not apply
to prison disciplinary proceedings. Rather, the Supreme
Court has indicated that the Double Jeopardy Clause applies
only to criminal and quasi-criminal proceedings. See, e.g.,
___ ____
Breed v. Jones, 421 U.S. 519, 528 (1975)("The risk to which
_____ _____
-3-
3
the [Double Jeopardy] Clause refers is not present in
proceedings that are not 'essentially criminal.'")(citation
omitted). See also Wolff v. McDonnell, 418 U.S. 539, 556
___ ____ _____ _________
(1974)("Prison disciplinary proceedings are not part of a
criminal prosecution..."). Josselyn was not technically in
jeopardy when the MA-DOC instituted administrative
disciplinary proceedings against him for his escape attempt.
It follows that Josselyn also was not in jeopardy when the
NH-DOC decided that he must forfeit all of his good time
credits for the same offense. This result is supported by
case law which indicates that the fact that a prisoner's
conduct results in administrative disciplinary proceedings
and sanctions does not bar a subsequent criminal prosecution
of the prisoner for the same conduct. See, e.g., Fano v.
___ ____ ____
Free access — add to your briefcase to read the full text and ask questions with AI
Josselyn v. Powell, (1st Cir. 1993).
Josselyn v. Powell (Josselyn v. Powell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
Related
Wolff v. McDonnell
418 U.S. 539 (Supreme Court, 1974)
Breed v. Jones
421 U.S. 519 (Supreme Court, 1975)
Meachum v. Fano
427 U.S. 215 (Supreme Court, 1976)
Hewitt v. Helms
459 U.S. 460 (Supreme Court, 1983)
Superintendent, Mass. Correctional Institution at Walpole v. Hill
472 U.S. 445 (Supreme Court, 1985)
Lozada v. Deeds
498 U.S. 430 (Supreme Court, 1991)
Charles Henry Stewart v. Dr. George J. Beto, Director, Texas Department of Corrections
454 F.2d 268 (Fifth Circuit, 1971)
Arthur Fano v. Larry Meachum
520 F.2d 374 (First Circuit, 1975)
Michael P. Parenti v. Joseph J. Ponte
727 F.2d 21 (First Circuit, 1984)
United States v. Walter Michael Rising
867 F.2d 1255 (Tenth Circuit, 1989)
Commonwealth v. Sneed
322 N.E.2d 435 (Massachusetts Appeals Court, 1975)