Sumbry v. Davis

84 F. App'x 639

Opinion

Order

Indiana law provides that inmates who engage in frivolous or harassing litigation may be penalized by a reduction in good-time credits. (There is a similar, though little-used, provision in federal law. See 28 U.S.C. § 1932.) The state deprived Larrianté Sumbry of 120 days’ good-time credit after determining that he had engaged in frivolous litigation. Sumbry sought federal collateral relief under 28 U.S.C. § 2254, contending that the state had violated the double jeopardy clause of the fifth amendment (applied to the states via the fourteenth amendment) by adding together two 60-day deprivations, each stemming from a separate conduct report, to yield the 120-day total. Sumbry contended that the two conduct reports stemmed from a single incident, so that he had been subjected to multiple punishments. The district court denied his petition.

Sumbry’s theory would be incorrect even if this were a criminal prosecution. As long as there is only one proceeding, and hence one “jeopardy,” there is no restriction on cumulative sentences. Whether a legislature provides that bank robbery will be punished by one 20-year sentence, or two consecutive 10-year sentences, is unimportant, as they come to the same thing. See, e.g., Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albemaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). But there is a deeper problem. Administrative actions with respect to good-time credits are not criminal prosecutions. See, e.g., Superintendent of Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Ponte v. Real, 471 U.S. 491, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985). How long the state may require a person to serve is fixed by the judgment of conviction; later events, such as good-time credits, parole, and pardon, may reduce that time, but the calculation of these reductions is not a new “jeopardy” for constitutional purposes. That is why a person who commits a new crime while on probation or parole may be criminally prosecuted following the revocation of that status; the revocation affects how much time is served on the original sentence but is not a new (or any) “jeopardy” with respect to the new crime. See United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Garrity v. Fiedler, 41 F.3d 1150 (7th Cir. 1994). Just so with good-time credits. See Meeks v. McBride, 81 F.3d 717, 722 (7th Cir.1996). Thus the double jeopardy clause is irrelevant to Sumbry’s situation.

Affirmed