October 18, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-2385
ROBERT C. BEAUCHAMP,
Petitioner, Appellee,
v.
PAUL MURPHY, THE SUPERINTENDENT OF THE OLD COLONY CORRECTIONAL CENTER,
Respondent, Appellant.
ERRATA SHEET
The opinion of this court issued on September 26, 1994, is amended as follows:
On page 13, delete the first full paragraph and replace with the
following paragraph:
"In the state court proceeding, the Department of Correction also provided an affidavit from the chief of its fugitive apprehension unit making similar contentions; but this, too, was essentially a litigation document and did not suggest that Washburn had any personal involvement in making the decision to deny credit to Beauchamp. It is questionable whether either the arguments made in the state's brief or the Washburn affidavit amount to anything more than a kind of "post hoc rationale" that courts do not normally accept as a
basis for appraising administrative action. NLRB v. Yeshiva
Univ., 444 U.S. 672, 675 n.22 (1980). In any event, neither
document suggests any individualized attempt to target Beauchamp."
October 4, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
PAUL MURPHY, THE SUPERINTENDENT OF THE OLD COLONY CORRECTIONAL CENTER,
The opinion of this Court, issued on September 26, 1994, is amended as follows:
On page 13, line 1 of footnote 2, continued from page 12, replace "context" with "contest".
On page 17, second line from bottom, replace "But" with "By".
On page 19, line 8 of second full paragraph, replace "does" with "do".
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
PAUL MURPHY, THE SUPERINTENDENT OF THE OLD COLONY CORRECTIONAL CENTER,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
William J. Duensing, Assistant Attorney General, with whom Scott
Harshbarger, Attorney General, was on brief for appellant.
Joseph H. Zwicker with whom Massachusetts Correctional Legal
Services was on brief for appellee.
September 26, 1994
BOUDIN, Circuit Judge. This appeal presents the
question whether Massachusetts was constitutionally obliged,
under the circumstances of this case, to give an escaped
convict credit against his Massachusetts sentence for time
spent in an Illinois jail resisting extradition back to
Massachusetts. The district court in a habeas corpus
proceeding held that the Constitution required such a credit.
We disagree, and reverse.
The facts are straightforward. On February 23, 1973, a
jury found Richard Beauchamp guilty of second degree murder
in Massachusetts. He received a life sentence but, under
Massachusetts law, was nevertheless eligible for parole after
14 years. Scarcely a year later, on April 29, 1974,
Beauchamp was released from prison on a 12-hour furlough. He
fled from Massachusetts. Beauchamp thereafter lived "in
various places under different names with false
identification and largely by his wits and deception."
United States ex rel. Beauchamp v. Elrod, 1987 WL 15164, *2
(N.D. Ill. 1987).
On July 6, 1981, Beauchamp was arrested on federal
charges in California. Shortly thereafter, Massachusetts
learned of the arrest and notified the federal authorities of
the Commonwealth's desire to have Beauchamp returned to
Massachusetts prison. After serving a nine-month sentence in
California on federal charges, Beauchamp waived his
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objections to extradition to Illinois where federal mail
fraud charges had been lodged against him. While there, he
was convicted and sentenced to a brief term of imprisonment.
After that sentence expired, he appeared on February 17,
1983, in Illinois state court on an Illinois misdemeanor
charge of deceptive practice.
Illinois dismissed its misdemeanor charge on March 11,
1983, anticipating Beauchamp's extradition to Massachusetts.
In April the governor of Illinois issued a rendition warrant,
but Beauchamp refused to waive extradition. Instead he
brought a state habeas corpus action challenging his
extradition on a variety of inventive grounds. The state
habeas corpus petition was denied on November 10, 1983, but
by an appeal and then a rehearing petition Beauchamp delayed
a final disposition until November 1985. Beauchamp v. Elrod,
484 N.E.2d 817 (Ill. App. 1985).
Beauchamp then began a federal habeas corpus proceeding.
In Illinois, Beauchamp claimed that the Massachusetts murder
had been committed at the CIA's behest and that Massachusetts
prison officials had thereafter connived at Beauchamp's
escape from Massachusetts prison. The district court held an
evidentiary hearing but then denied relief, concluding that
the facts alleged by Beauchamp would not in any event furnish
a defense to extradition. United States ex rel. Beauchamp v.
Elrod, supra, 1987 WL 15164, *2.
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On August 7, 1987, Beauchamp was finally returned to
Massachusetts. He pleaded guilty to a separate charge of
escape from prison, but no separate sentence was imposed.
Beauchamp then began a campaign to obtain credit, against his
Massachusetts second-degree murder sentence, for a four-year
period (March 11, 1983, to August 7, 1987) that he had spent
in the Illinois jail while resisting extradition to
Massachusetts. Although credit would not reduce his formal
sentence, which was for life imprisonment, credit would
reduce the wait before Beauchamp was eligible for parole.
The Massachusetts authorities were prepared to give
Beauchamp credit for his very brief period in Illinois
custody after his extradition challenges had failed so that
Massachusetts was free to take him into custody. The
authorities refused his request for any further credit, and
Beauchamp then sought judicial review. The superior court
granted Beauchamp's request for full credit but the Supreme
Judicial Court reversed, holding that no credit was due for
the time spent in Illinois resisting extradition.
Commonwealth v. Beauchamp, 595 N.E.2d 307 (Mass. 1992).
On October 1, 1993, Beauchamp commenced the present
action for habeas corpus in the district court. 28 U.S.C.
2254. In a thoughtful decision rendered on November 18,
1993, the district court granted the writ, ordering the state
to allow the 1,574 days' credit sought by Beauchamp. The
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court ruled that to deny the credit would unconstitutionally
burden Beauchamp's right to contest extradition. In the
alternate, the court held that denial of the credit was
unconstitutional retaliation by the state.
On this appeal, the Commonwealth first claims that
Beauchamp did not adequately exhaust his state remedies. In
the district court, as here, Beauchamp has invoked both due
process and equal protection concepts. Due process underlay
Beauchamp's argument that the Commonwealth has
unconstitutionally burdened his right of access to the courts
and impermissibly retaliated against him. The equal
protection claims were of two kinds: first, that
Massachusetts provides credit for time spent contesting
extradition to some extradited persons but not to prison
escapees; and second, that denial of such credit favors
affluent fugitives over those who cannot make bail.
In arguing a failure to exhaust state remedies, the
Commonwealth singles out the equal protection claim that
Massachusetts grants credit to some extradited persons and
withholds it from others based on irrational criteria. Under
Rose v. Lundy, 455 U.S. 509 (1982), Beauchamp's federal
petition may be dismissed if he failed to present to the
state courts any of the federal claims now asserted. The
district court must dismiss such "mixed petitions," "leaving
the prisoner with the choice of returning to state court to
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exhaust his claims or of amending or resubmitting the habeas
petition to present only exhausted claims to the district
court." Id. at 510.
In his brief to the Supreme Judicial Court, Beauchamp
had a separate section devoted to "state and federal
guaranties of due process," whose adequacy (for exhaustion
purposes) the Commonwealth does not challenge, and a section
on "federal equal protection," which makes the indigency
argument briefly but adequately. The equal protection
argument based on irrational classification was set forth in
a prior section, under the heading "state constitution--equal
protection," which begins with a reference to "the state
guaranty of equal protection." As the last paragraph of this
section--after the supposedly irrational classifications have
been described--the brief concludes:
Over and above state constitutional requirements governing by which branch and on what basis the rule proposed [by the Commonwealth denying credit] can be adopted, the rule violates state and Federal Constitutional constraints on how, why, and upon whom a denial of liberty can be imposed. These are the constraints of Federal equal protection and due process guaranties under both Constitutions.
It is possible to read this final paragraph, as the
district court apparently did, to be a federal equal-
protection attack on the classifications just criticized at
length in the same section of Beauchamp's brief. The more
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natural meaning of the paragraph may be to read it as a
transition to the two sections that follow which, as
mentioned above, address "federal equal protection" (where
the indigency issue is discussed) and "state and federal
guaranties of due process" (where the access to the courts
issue is discussed).
However this may be, we have no intention of dismissing
the case under Rose v. Lundy. The substance of the
irrational classifications argument was amply explained in
Beauchamp's state brief and his criticisms were not premised
on any peculiarity of language in the Massachusetts
Constitution or any unusual state court precedent. The
Supreme Judicial Court can hardly have been misled merely
because the reference to federal equal protection occurred at
the end of the argument instead of the beginning. Had the
caption of the argument read "federal and state constitution-
-equal protection," the substance would have been exactly the
same.
Rose v. Lundy assures that state courts have the chance
to pass on federal constitutional issues before federal
courts intrude on the state criminal process. Where the
state court has not fairly been apprised of a constitutional
argument, exhaustion is required. See Nadworney v. Fair, 872
F.2d 1093 (1st Cir. 1989). But in this context "substance
rather than form" is critical, 872 F.2d at 1101, and the
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Supreme Judicial Court would not have viewed the matter
differently if the word "federal" had appeared in the heading
ofthesection thatsetoutthe irrationalclassificationsargument.
We turn, therefore, to the merits and begin with the
district court's holding that the denial of credit to
Beauchamp impermissibly forecloses or burdens the "right of
access" to the courts. Undoubtedly, Beauchamp has a
constitutional right of access to the courts, e.g., Bounds v.
Smith, 430 U.S. 817, 821 (1977), and if Illinois had barred
Beauchamp from filing a federal habeas action to challenge
his detention, serious constitutional concerns would arise.
We will assume arguendo that the federal right of access
included the state habeas proceeding as well.
No one, however, prevented Beauchamp from filing his
successive habeas actions in Illinois. Rather, the issue is
whether Massachusetts' refusal to credit the time spent in
this litigation is an unconstitutional burden upon
Beauchamp's right of access. Here, the Supreme Court's
decisions provide relatively little direct guidance. Burden
issues, presenting the familiar problem of how much is too
much, peculiarly depend on facts and context, and the Supreme
Court has not had much to say about the relationship between
extradition challenges and the refusal to credit time served
in an out of state jail.
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Where burdens are laid upon the exercise of
constitutional rights by prisoners, the Supreme Court's
current approach is to give very substantial latitude to the
state's judgment. E.g., Turner v. Safley, 482 U.S. 78
(1987); compare Procunier v. Martin, 416 U.S. 396 (1974).
But such cases differ because they involve the actual running
of prisons and the most practical considerations of
discipline, security, administrative feasibility and cost.
While some of these concerns may apply in this case, they are
greatly diluted when the issue is the calculation of a
sentence, a task performed by an administrator with a pencil.
If one looks for analogies to our own case, the closest
ones in the Supreme Court appear to be two decisions, both of
which concern burdens on litigation choices provided to the
defendant. In United States v. Jackson, 390 U.S. 570 (1968),
the Court held it unconstitutional to subject a kidnapper to
a possible death penalty if, but only if, the defendant
elected a jury trial. North Carolina v. Pearce, 395 U.S. 710
(1969), with equal firmness, held that a defendant who
chooses to appeal a conviction may, where successful, be
given a higher sentence in a subsequent retrial. Jackson was
plainly influenced by the enormity of the penalty, so that
Pearce--where seven justices seemed unconcerned about
deterring appeals--may be the more pertinent guidepost.
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Taking together Turner, Jackson and Pearce, the best we
can say is that the burden on the opportunity to litigate
cannot be unreasonable, and reasonableness largely turns upon
the facts. With some emphases peculiar to prison regulation,
Turner itself identifies pertinent criteria: whether the
state's policy serves a valid governmental interest; the
extent to which the prisoner is foreclosed or burdened in
exercising his rights; and the presence or absence of
reasonable alternatives for the government to achieve the
same ends by other means without significant cost or
impairment of the governmental interest at stake. 482 U.S.
at 89-91.1
In this case the governmental interest is patent:
Massachusetts is entitled to shape its own sentences and,
within very broad limits, is entitled to insist that a
sentence of so many years means years served in a
Massachusetts prison. E.g., Boutwell v. Nagle, 861 F.2d 1530
(11th Cir. 1988), cert. denied, 490 U.S. 1099 (1989); Pernell
v. Rose, 486 F.2d 301 (6th Cir. 1973), cert. denied, 415 U.S.
985 (1974). True, serving part of the sentence in Illinois
may not be very different. But this is a practical matter on
which views may vary. Further there is a symbolic importance
1A fourth consideration mentioned in Turner--any ripple
effect of the remedy sought upon the correctional institution and other inmates--was linked peculiarly to prison operations and the special need for deference to corrections officials. Id. at 90.
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to the state's ability, as a separate sovereign in criminal
law enforcement, to shape its own procedures and penalties.
Turning to the impact on escaped prisoners, the denial
of credit clearly does not foreclose access to the courts,
and we think it unlikely that colorable claims against
extradition will be discouraged. The legitimate grounds for
challenging a rendition warrant are narrow and reasonably
clear-cut. See Commonwealth v. Beauchamp, 595 N.E.2d at 309-
10. If an alleged escapee subject to such a warrant has a
substantial defense to extradition and thus a fair to good
prospect of avoiding a return to certain imprisonment, he or
she is not likely to be discouraged by a penalty (denial of
credit) that will never be visited if extradition is blocked.
Finally, there is no "ready alternative" to the denial
of credit. See Turner, 482 U.S. at 90. If Massachusetts
does give credit to Beauchamp, it defeats the very interest
that underlies the no-credit rule: that the Commonwealth
fixes the place of imprisonment, not the prisoner. "To rule
otherwise would allow the defendant to choose the State where
he would serve a significant portion of his sentence."
Beauchamp, 595 N.E. at 310. "[T]he absence of ready
alternatives is evidence of the reasonableness of a
[challenged state policy]." Turner, 482 U.S. at 90.
Accordingly, if the choice is between the burden laid on
legitimate challenges and the state's interest in defining
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its own sentences, we think that the state interest is
legitimate, the burden is very light, and no obvious
alternative is available to achieve the former and avoid the
latter. But two further questions remain: one is whether the
state's decision to deny Beauchamp credit is tainted by a
retaliatory motive, and the other is whether the singling out
of escaped prisoners presents an equal protection problem.
We address these issues in that order.
The district court, in addition to finding an undue
burden upon Beauchamp's right of access to the courts,
declared that the Commonwealth sought to penalize Beauchamp
for resisting extradition:
The Department of Corrections' refusal to credit [Beauchamp's] sentence with the time he spent in custody challenging extradition cannot stand. The record suggests that in refusing Beauchamp's request for credit, the Commonwealth unconstitutionally penalized him for exercising his right to contest rendition to Massachusetts; [the Commonwealth] has not shown otherwise.
Although this may look like a "finding" of the motive for the
Commonwealth's action, the situation is somewhat more
complicated than that.
First, there is no record evidence concerning the motive
of Department of Corrections' personnel who made the initial
decision. Both the district court decision and Beauchamp's
brief rely upon arguments made in the attorney general's
brief in the state's highest court that "to provide credit
toward [an escapee's] sentence . . . for time spent
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contesting extradition opens the floodgates to a significant
increase in extradition contests by escaped inmates."2 We
are in the same position as the district court to reason from
the attorney general's written argument, so that the clear
error doctrine has no application here.
In the state court proceeding, the Department of
Correction also provided an affidavit from the chief of its
fugitive apprehension unit making similar contentions; but
this, too, was essentially a litigation document and did not
suggest that Washburn had any personal involvement in making
the decision to deny credit to Beauchamp. It is questionable
whether either the arguments made in the state's brief or the
Washburn affidavit amount to anything more than a kind of
"post hoc rationale" that courts do not normally accept as a
document suggests any individualized attempt to target
Beauchamp.
Second, we do not think that unconstitutional
retaliation is involved even if we assume arguendo that the
2The district court does say that if Beauchamp had not contested extradition, he would have received credit for time spent in Illinois "for those same days of imprisonment." But those "same days" would never have existed if Beauchamp had agreed to extradition, and in fact Massachusetts did credit Beauchamp with the very brief time spent in Illinois after his extradition contest failed and he was available to Massachusetts.
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correctional authorities do believe that giving credit would
spur time-wasting challenges to extradition. General rules
often rest upon multiple considerations, and concerns about
abusive litigation underlie a number of federal rules adopted
by the courts themselves. These include restrictions on
habeas corpus itself, e.g., McKleskey v. Zant, 499 U.S. 467,
491 (1991), and sanctions under Fed. R. Civ. P. 11, not to
mention various common law torts such as malicious
prosecution.
The Commonwealth's policy, even if resting in part on
litigation concerns, seems to us a mile away from a warden's
decision to disadvantage a prisoner because that prisoner
filed a law suit against the warden. This is not, or at
least has not been shown to be, a case of individual
retaliation for pursuing constitutional rights. At most, as
one element in a legitimate decision generally to deny credit
to escaped prisoners for time spent outside Massachusetts,
the state has given some weight to the benefits of getting
the escapee back promptly where he or she belongs.
We turn finally to the claim that Massachusetts has
denied equal protection to Beauchamp, a claim not addressed
by the district court but advanced by Beauchamp as an
alternative basis to sustain the judgment. Beauchamp is
entitled to defend the district court's judgment on any
properly preserved ground that would serve to sustain it,
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whether or not adopted by the district court. E.g., Martin
v. Tango's Restaurant, 969 F.2d 1319, 1325 (1st Cir. 1992).
The equal protection claim based on indigency made in state
court has not been renewed before us. Cf. Palmer v. Dugger,
833 F.2d 253 (11th Cir. 1987) We proceed, therefore, to
Beauchamp's claim that Massachusetts applies its no-credit
rule based on irrational classifications.
As the foundation for his argument, Beauchamp asserts
that "Massachusetts awards sentence credit to parole
violators and pre-trial detainees for time served in other
states contesting extradition to Massachusetts." It is true
that by statute, Massachusetts requires that prisoners be
credited with time served during pretrial detention. Mass.
Gen. L. ch. 127, 129B, ch. 279, 33A. Another statute
denies credit to a parole violator for time spent out of
prison during revocation proceedings. Id., ch. 127, 149.
Where no statute applies--as in the case of time spent in
detention out of state while resisting extradition--the
Massachusetts courts apply a test of fairness.3
Other than Beauchamp the only other decision by the
Supreme Judicial Court involving an escaped prisoner is
Chalifoux. In that case, the escapee was sentenced to time
3E.g., Beauchamp, 595 N.E.2d at 926; Chalifoux v.
Commissioner of Correction, 377 N.E.2d 923, 926 (Mass. 1978);
Commonwealth v. Grant, 317 N.E.2d 484, 486-87 (Mass. 1974);
Brown v. Commissioner of Correction, 147 N.E.2d 782, 784
(Mass. 1958).
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by a California court intended to be served concurrently, in
Massachusetts, upon extradition there. Massachusetts refused
to accept immediate rendition because of overcrowding and
then, after the California sentence had been served, refused
to reduce the Massachusetts sentence for the time spent in
California. On fairness grounds, the Supreme Judicial Court
ordered a credit. Taking the two cases together, we think
that the prevailing practice in Massachusetts is apparently
to deny credit to escaped prisoners for time spent litigating
extradition, absent extraordinary circumstances or distinct
equities.4
One must tread cautiously in generalizing about equal
protection, for there are countless Supreme Court precedents
that cannot all be reconciled even in hundreds of pages of
erudite discussion. See, e.g., L. Tribe, Constitutional Law
1436-1672 (2d ed. 1988). The classification here, however,
is between prison escapees and other fugitives and is far
from any previously deemed suspect. Compare, e.g., Palmore
v. Sidoti, 466 U.S. 429 (1984) (racial classification).
Similarly, the classification does not in any sense deprive
or deny to anyone a fundamental right; at most, it may impose
4See also In re Kinney, 363 N.E.2d 1337, 1338 (Mass.
App. Ct. 1977) (stating the general rule that an escape "suspend[s] the running of the original sentence until such time as [the defendant] should be returned to" the institution from which he escaped).
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a conjectural and incidental burden unlikely to discourage
any substantial objections to extradition.
Since there is no suspect classification here involved,
nor any deprivation of fundamental rights, the ordinary equal
protection test is extremely deferential. The standard
formula is that a non-suspect classification is
unconstitutional only if no legitimate basis can be imagined
to support it. E.g., Harrah Independent School District v.
Martin, 440 U.S. 194 (1979). And "support" means only that a
legislature--or, here, a state court acting in its stead--
could provide a rational basis for the choice. E.g., Vance
v. Bradley, 440 U.S. 93, 111 (1979).
Turning to the distinctions assertedly drawn by
Massachusetts, pretrial detainees (whether held in
Massachusetts or held outside the state while contesting
extradition) are a peculiarly sympathetic case for credit;
these are presumptively innocent individuals held primarily
to assure their presence at trial. Credit for such detention
is widely available. There is nothing whatever irrational
about a general rule that pretrial detention time should be
credited as a matter of course, nor does it conflict with a
presumptive rule against credit for time spent out of state
by one who is convicted and later escapes from prison.
A closer case is presented by the fact, if fact it is,
that credit is given to a parolee who violates parole, flees
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the state and then contests extradition back to
Massachusetts.5 But an escape from prison, even by one on a
12-hour pass, can rationally be treated as a more serious
default than a parole violation. By the same token the state
may take a more sympathetic view of time spent in detention
out of state by one who was out on liberty than by one who
was suppose to be residing in a Massachusetts prison. Again,
the distinction is not irrational.
Beauchamp says that these supposed exceptions undercut
any assertion by the Commonwealth that it is interested in
having a Massachusetts sentence served only in Massachusetts
jails. But a legitimate interest does not cease to be so
because rational exceptions are made on account of
countervailing general concerns or individual equities.
Here, some of the exceptions are more compelling than others,
but none involves a suspect classification or is outside the
bounds of minimal rationality so as to violate the equal
protection clause of the 14th Amendment.
Beauchamp's final claim is that the denial of credit
violates the Fifth Amendment's prohibition against double
jeopardy made applicable to the states through the 14th
Amendment's due process clause. The Supreme Court precedent
5The state has submitted a letter agreeing that this is the policy followed and arguing that it is consistent with Mass. Gen. L. ch. 127, 149. See also Blake v. Rapons, C.A.
No. 91-0795B (Mass. Super. Ct., April 21, 1991).
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relied upon by Beauchamp is North Carolina v. Pearce, a
different aspect of which was discussed above. In Pearce a
defendant served part of his sentence for an offence before
getting the conviction overturned on appeal. Then on retrial
he was convicted and resentenced. In the new sentence,
Pearce was denied credit for the time he served incident to
the first conviction for the same crime.
In the ruling relied on by Beauchamp, the Supreme Court
held that this denial of credit violates the double jeopardy
clause's prohibition against "multiple punishments for the
same offense," 395 U.S. at 717, observing:
[T]his basic constitutional guarantee is violated when punishment already exacted for an offense is not fully "credited" in imposing sentence upon a new conviction for the same offense.
Id. at 718. We think that the formal holding of Pearce on
this issue has no application to Beauchamp. In our case, the
time spent in Illinois was not formally a "punishment" for
the Massachusetts second-degree murder conviction but a
decision by Illinois to hold Beauchamp--who had already fled
once--pending extradition to complete his Massachusetts
sentence.
Formalities deserve weight in applying a fairly
technical constitutional prohibition such as the double
jeopardy clause. That is the lesson of the Court's further
holding in Pearce that a stiffer sentence on retrial after a
successful appeal does not offend the clause. See 395 U.S.
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at 711. The same formal approach is implicit in the even
more famous holding that separate state and federal
punishments for the same conduct do not violate the double
jeopardy clause. E.g., Heath v. Alabama, 474 U.S. 82, 89
(1985).
The force of Beauchamp's argument does not lie on the
technicalities of double jeopardy. Its essence is a due
process appeal to concepts of fundamental fairness: after
all, but for the Massachusetts detainer, Beauchamp would not
have spent four years in an Illinois jail; and the result of
denying him credit is to hold him in custody, if the Illinois
and Massachusetts terms are combined, for more than the
minimum term otherwise available in Massachusetts. This
argument would have special force if, for example, a state
denied credit to a convicted prisoner for time spent in
pretrial detention.
But this is a one-sided portrayal of the events in this
case. Beauchamp's stay in the Illinois jail is causally
related not only to his Massachusetts sentence but also to
his own action in escaping from Massachusetts prison and then
resisting extradition (mainly on spurious grounds). And, as
we have explained above, Massachusetts has a legitimate, if
partly symbolic, interest in having the full sentence served
in its own prison. To deny Beauchamp credit is simply not a
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case of fundamental unfairness in the constitutional sense.
Compare Rochlin v. California, 342 U.S. 165 (1952).
The Massachusetts rule could strike some observers as a
severe one, but an arguably severe rule is not automatically
unconstitutional. Where as here the underlying issue is one
of minimum fairness and rationality, a federal court polices
the outer perimeter. Where issues are ones on which rational
and civilized men and women can reasonably differ, the
resolution of such choices is not for us.
Reversed.
Dissent follows.
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BOWNES, Senior Circuit Judge, dissenting.
The court has written a very persuasive opinion.
This is due to a combination of two factors: the outstanding
skill and writing style of the author; and its invocation of
the doctrine of "fundamental fairness" to reach a result that
seems at first blush to be fair and just. After all, why
should an escaped felon be rewarded for resisting extradition
to the state from which he fled prison? I dissent, however,
because I think the court's opinion does not meet head-on an
important constitutional issue raised by petitioner. This
issue was, in my judgment, squarely confronted and correctly
decided by the district court.
With respect, I do not think that the basic issue
is "fundamental fairness"; instead, I believe it is whether
petitioner's constitutional right of access to the courts was
violated. For the reasons that follow I think that this
constitutionally guaranteed right was abridged.
An inmate has no independent federal constitutional
right to credit on a sentence lawfully imposed by one state,
for time spent in the custody of another state, absent a
statute in the sentencing state so providing. See Boutwell
v. Eagle, 861 F.2d 1530, 1531 (11th Cir. 1988), cert. denied,
490 U.S. 1099 (1989); Palmer v. Dugger, 833 F.2d 253, 254
(11th Cir. 1987). Petitioner does not have a constitutional
right to credit for the time spent in custody in Illinois
fighting extradition to Massachusetts. The question is
whether the practice of the Massachusetts Department of
Corrections (DOC), pursuant to which he was denied credit,
amounts to retaliation against escapees who exercise their
right of access to the courts.
It is well settled that prisoners, no less than any
other citizens, have a constitutional right of access to the
courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977); Wolff
v. McDowell, 418 U.S. 396 (1974); Johnson v. Avery, 393 U.S.
483 (1969). "[S]tates have an affirmative obligation to
assure that inmates have meaningful access to courts."
Germany v. Vance, 868 F.2d 9, 14 (1st Cir. 1989) (internal
quotation marks and citation omitted); see also Bounds, 430
U.S. at 832-24.6
The right of access has been developed primarily in
prisoner cases where the inmate seeks to challenge the
conditions of his confinement or his underlying conviction.
See Crowder v. Sinyard, 884 F.2d 804, 811 (5th Cir. 1989),
cert. denied, 496 U.S. 924 (1990). These cases generally
concern the adequacy of prison libraries, access to legal
6. Although the Supreme Court has, at various times, viewed the right of access as one aspect of the Due Process Clause of the Fourteenth Amendment, the First Amendment right to petition government for grievances, and the Privileges and Immunities clause of Article IV, section 2 of the Constitution, see generally Germany, 868 F.2d at 17 & n. 9,
we believe that it is most appropriate to view the Due Process Clause as the source of that right. Id. at 17.
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assistance, or the availability of pens, paper, postage and
other non-legal materials without which court documents
cannot be drafted. See, e.g., Alston v. DeBruyn, 13 F.3d
1036 (7th Cir. 1994) (denial of access to law library and
adequate legal assistance); Petrick v. Maynard, 11 F.3d 991
(10th Cir. 1993) (inadequate law library); Davidson v. Smith,
9 F.3d 4 (2d Cir. 1994) (destruction of inmate's legal
materials); Gluth v. Kansas, 951 F.2d 1504 (9th Cir. 1991)
(high postage, copying and supply costs); Ching v. Lewis, 895
F.2d 608 (9th Cir. 1990) (right of access includes attorney
visitation); see also Bounds, 430 U.S. at 824-25 ("[I]ndigent
inmates must be provided at state expense with paper and pen
to draft legal documents, with notarial services to
authenticate them, and with stamps to mail them."). The
right of access is not, however, limited to such cases. As
the Supreme Court held in the context of a diversity tort
action nearly a century ago:
The right to sue and defend in courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship . . . granted and protected by the federal constitution.
Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907).
And at least, one court of appeals has explicitly rejected
the proposition
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that a prisoner's right of "adequate, effective, and meaningful" access to the courts, as recognized by the Supreme Court in Bounds v. Smith, is limited to
the presentation of constitutional, civil rights, and habeas corpus claims . . . . [T]he Bounds opinion was primarily
concerned with constitutional and civil rights claims and with the minimum legal resources that prisons must afford to inmates to ensure effective access to the courts. Recognition of the constitutional right of access to the courts, however, long precedes Bounds,
and has from its inception been applied to civil as well as constitutional claims.
Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986)
(collecting cases); accord Straub v. Monge, 815 F.2d 1467,
1470 (11th Cir.), cert. denied, 484 U.S. 946 (1987). The
constitutional right of access to the courts is broad, and is
not limited to an inmate's right to challenge conditions of
confinement or an underlying conviction. It covers an
inmate's right to bring a divorce action, Corpus v. Estelle,
441 F.2d 68, 70 (5th Cir. 1977), and a common law nuisance
lawsuit, Harrison v. Springdale Water & Sewer Comm'n, 780
F.2d 1422, 1427-28 (8th Cir. 1986). I believe that it also
encompasses the right of an escaped felon to challenge his
extradition.
Under Illinois law petitioner had a statutory right
to challenge his extradition. See Ill. Ann. Stat. ch. 725,
225/10 (Smith-Hurd 1992). Petitioner also had a federal
right to challenge his extradition through a habeas corpus
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proceeding in federal court. Crummley v. Snead, 620 F.2d
481, 483 (5th Cir. 1980) (citing Roberts v. Reilly, 116 U.S.
80 (1885)).
It is now firmly established that an act taken in
retaliation for the exercise of a constitutionally protected
right is forbidden, even if the act, if taken for a different
purpose, would have been proper. McDonald v. Hall, 610 F.2d
16, 18 (1st Cir. 1979); Matzker v. Herr, 748 F.2d 1142, 1150
(7th Cir. 1984). Retaliation by prison officials against an
inmate for pursuing legal action constitutes interference
with that inmate's right of access to the courts. McDonald,
610 F.2d at 18; see also Smith v. Maschner, 899 F.2d 940, 947
(10th Cir. 1990); Valandingham v. Bojorquez, 866 F.2d 1135,
1138 (9th Cir. 1989). Thus, although an inmate may not, for
example, have a constitutional right to remain in a
particular institution or hold a particular job assignment,
prison officials may not transfer him or deny him a job
assignment in retaliation for the exercise of a
constitutionally protected activity. See Williams v. Meese,
926 F.2d 994, 998 (10th Cir. 1990) (inmate transfer cannot be
used as retaliation); Howland v. Kilquist, 833 F.2d 639, 644
(7th Cir. 1987) (same); McDonald, 610 F.2d at 18 (same). The
same rationale applies to the denial of credit against a
prisoner's sentence for time spent in another state's custody
while challenging extradition.
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In addressing petitioner's claim of retaliation,
the district court found:
The circumstances of this case . . . strongly suggest the presence of a retaliatory response to a prisoner's exercising his constitutional right of access to the courts. The facts indicate a reasonable likelihood that in denying Beauchamp's request that it credit his sentence with the time he spent in custody in Illinois solely on the basis of the Massachusetts escape charges, the Commonwealth's Department of Corrections impermissibly penalized him for invoking his statutory right to challenge rendition. Undisputedly, only because Petitioner invoked his right to contest extradition was he deprived of sentencing credit for 1,574 days he spent in custody; had he waived extradition and returned immediately to Massachusetts' custody, he would have received full credit for those same days of imprisonment.
Beauchamp, slip op. at 13. We review the district court's
factual finding of retaliation for clear error, and will
reverse only if we are firmly and unequivocally convinced
that an error has been committed. See Tresca Bros. Sand &
Gravel v. Truck Drivers Union, Local 170, 19 F.3d 63, 65 (1st
Cir. 1994); American Title Ins. Co. v. East West Financial,
16 F.3d 449, 453 (1st Cir. 1994). In other words, if the
district court's factual finding is plausible based on a
whole-record review, we must affirm even if we would have
reached a different result in the first instance. See
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985).
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The district court inferred the existence of
retaliation from the fact that respondent had previously
argued that the denial of credit to petitioner for the time
he served in Illinois challenging extradition was essential
to discourage extradition contests by escapees. Respondent
argues that this is not enough on which to base a finding of
retaliation, and that "[p]ositive evidence of retaliatory
action is necessary." Brief for Respondent at 24. Although
I am not sure what respondent means by "positive," I assume
that it means direct as opposed to circumstantial evidence.
Time and time again courts have stressed that
"[p]recisely because the ultimate fact of retaliation turns
on defendants' state of mind, it is particularly difficult to
establish by direct evidence." Smith, 899 F.2d at 949
(citing McDonald, 610 F.2d at 18). Thus, circumstantial as
opposed to direct evidence may be enough to support a finding
of retaliation. See Mesnick v. General Elec. Co., 950 F.2d
816, 828 (1st Cir. 1991), cert. denied, 112 S. Ct. 2965
(1992). In the present case, however, there was direct
evidence in the record to support petitioner's allegation of
retaliation. In the Superior Court of Massachusetts,
respondent submitted evidence showing how quickly escapees
are generally returned to Massachusetts after being
apprehended. It then argued that petitioner should not be
credited for his Illinois time because doing so would
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improperly provide escapees with an incentive to challenge
extradition. Clearly respondent was advocating that
petitioner's claim for credit should be denied so that other
escapees would be deterred from challenging extradition in
the future, despite their established right to do so. My
review of the record leads me to conclude that there was
sufficient evidence from which a rational factfinder could
find that petitioner was retaliated against for having
challenged his extradition. And this is as far as an
appellate court can go. I believe that the court had no
choice but to uphold the district court's finding that
respondent impermissibly retaliated against petitioner for
exercising through habeas corpus proceedings his right of
access to the courts.
The court neatly avoids the issue of retaliation by
pointing out that petitioner himself was not denied access to
the courts. This ignores the fact that petitioner's claim
for credit was denied by DOC to discourage the bringing of
such claims in the future, regardless of the merits, and in
the face of the recognized right of escaped felons to contest
extradition in the courts.
As part of its "fundamental fairness" rationale the
court, in effect, finds that petitioner's basis for
contesting extradition had no merit. I do not think that the
right of access to the courts hinges on the probability that
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a given claim will succeed. The resolution of the
constitutional question should not turn upon a post hoc
determination that petitioner's extradition challenges were
frivolous.
It is settled that, "when a prison regulation
impinges on inmates' constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological
interests." Turner v. Safley, 482 U.S. 78, 89 (1987).
Although Turner concerned prison rules and regulations, I see
no reason why its rationale should not apply to other prison
actions that threaten an inmate's access to the courts, such
as the denial of credit on a sentence, as in the case at bar.
Cf. Frazier, 922 F.2d at 562 (applying Turner to inmate
transfer).
In conducting a Turner analysis, the district court
found it dispositive that "[r]espondent . . . [had]
proffer[ed] no legitimate penological interests which might
justify the Commonwealth's response to Petitioner's exercise
of his right to challenge rendition." Beauchamp, slip op. at
15. Respondent has repeated its omission by failing to
provide this court with any penological interests that are
advanced by denying sentence credit to petitioner. Those
interests (real or imagined) did not prevent the Commonwealth
from crediting the petitioner with the time he spent in
Illinois after his extradition challenge. See ante at 12
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n.2. This belies the court's characterization of the no-
credit rule as a "decision generally to deny credit to
escaped prisoners for time spent outside Massachusetts," ante
at 14. Application of the rule only to the time associated
with the petitioner's exercise of his constitutional right
bolsters the inference that the denial of credit was
retaliatory. See supra at 8-9. Respondent simply argues
that the Turner analysis is inappropriate in the case at bar.
See Brief for Respondent at 23-24. But respondent does not
explain why this is so, nor does it offer an alternative
test. Respondent does argue that principles of federalism
require this court to defer to state court decisions to
credit or not to credit a prisoner's sentence with time
served in another state. I have been unable to find any
legal basis for respondent's theory.
I recognize that prison administrators must be
given wide latitude in formulating policies and procedures
for running their prison systems, see Procunier v. Martinez,
416 U.S. at 405 ("courts are ill equipped to deal with the
increasingly urgent problems of prison administration and
reform"), particularly where state prisons are involved, see
Turner, 482 U.S. at 85 ("Where a state penal system is
involved, federal courts have . . . additional reason to
accord deference to the appropriate prison authorities.").
States, however, cannot implement, without justification,
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practices or policies that interfere with the exercise of
prisoners' constitutional rights. See id. at 89-90. While
there may exist some legitimate penological interest that
would justify denying petitioner credit for the time he
served in Illinois, I can only speculate as to what it might
be.
Petitioner is not a person who evokes sympathy.
Nor does his plight suggest that a great injustice has been
done him. Nevertheless, he has raised an important
constitutional issue involving the right of access to the
courts. And I do not think that the issue should be avoided
by masking it in the garb of "fundamental fairness." The
court today decides that a Massachusetts escaped felon has no
right to credit against his time spent in custody while
exercising his undoubted right to contest extradition. I
respectfully disagree. For the reasons stated herein I would
affirm the judgment of the district court. I, therefore,
dissent.
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