262 F.3d 641 (7th Cir. 2001), 00-2869, Montgomery v Anderson

Docket Nº:00-2869
Citation:262 F.3d 641
Party Name:Jerry Montgomery, Petitioner-Appellant, v. Rondle Anderson, Warden, Indiana State Prison, Respondent-Appellee.
Case Date:August 13, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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262 F.3d 641 (7th Cir. 2001)

Jerry Montgomery, Petitioner-Appellant,


Rondle Anderson, Warden, Indiana State Prison, Respondent-Appellee.

No. 00-2869

In the United States Court of Appeals, For the Seventh Circuit

August 13, 2001

Submitted July 25, 2001

Rehearing Denied Aug. 31, 2001

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:00-CV-131 AS--Allen Sharp, Judge.

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[Copyrighted Material Omitted]

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Before Flaum, Chief Judge, and Easterbrook and Kanne, Circuit Judges.

Easterbrook, Circuit Judge.

Jerry Montgomery, who is serving a 40-year term for murder, contends in this action under 28 U.S.C. sec.2254 that Indiana violated the due process clause of the fourteenth amendment when it placed him in disciplinary segregation and reduced his credit-earning class. The district court denied his petition, and this appeal presents a series of questions: (1) is a collateral attack under sec.2254 the right way to present a claim of constitutional error in a decision affecting the rate of earning good-time credits?; (2) does a lower rate of earning good-time credits deprive a prisoner of "liberty" or "property" within the meaning of the Constitution?; and, if we give affirmative answers to these questions, (3) did Indiana afford Montgomery all the process due him?

Section 2254 authorizes federal courts to grant collateral relief to state prisoners "in custody in violation of the Constitution or laws or treaties of the United States." Montgomery is in Indiana's custody, and the length of that custody depends on a resolution of his complaint about the award of credits. See Lackawanna County District Attorney v. Coss, 121 S.Ct. 1567, 1572-73 (2001). If the state had deprived him of good-time credits already earned, then sec.2254 would provide the exclusive avenue for seeking federal relief. See Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000). A reduction in the rate of earning good- time credits should be treated identically. The stakes are the same: the length of incarceration. Montgomery was demoted from Class I (one day's good-time credit for each day served) to Class II (one day's credit for each two days served). See I.C. sec.35-50-6-3(a), (b). This difference, applied from the start of a 40-year term, increases confinement by almost 7 years. (A prisoner sentenced to 40 years and in Class I throughout would be released after 20 years; the same prisoner in Class II would be released after 26 years and 8 months.) Any decision that determines the fact or duration of state custody may (and usually must) be challenged under sec.2254 rather than 42 U.S.C. sec.1983. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1973); Edwards v. Balisok, 520 U.S. 641 (1997); Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000).

But only the change in credit-earning class may be challenged under sec.2254. Disciplinary segregation affects the severity rather than duration of custody.

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More-restrictive custody must be challenged under sec.1983, in the uncommon circumstances when it can be challenged at all. See Sandin v. Conner, 515 U.S. 472 (1995); Meachum v. Fano, 427 U.S. 215 (1976). Montgomery cannot use sec.1983 to contest his segregation, for three reasons. First, the decision of a prison disciplinary board may not lead to an award of damages if it is open to contest under sec.2254 yet remains in force. That's the holding of Edwards, an application of Heck v. Humphrey, 512 U.S. 477 (1994). Cf. DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000). Montgomery can achieve review of the board's decision by concentrating on his credit-earning class, so Edwards blocks use of sec.1983 unless Montgomery prevails in the sec.2254 proceedings. Second, Montgomery has been barred from filing any sec.1983 litigation as a result of his failure to pay sanctions imposed for his history of vexatious civil litigation. See Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995). The preclusion order has an exception for proceedings under sec.2254 but forecloses other civil actions until the sanctions have been paid. Third, as Sandin holds, a prisoner has neither a "liberty" nor a "property" interest in remaining in a prison's general population, so Montgomery has nothing substantive to complain about. Only the reduction in credit-earning class requires further consideration.

Although sec.2254 provides the right vehicle, the question remains whether a reduction in credit-earning class deprives a prisoner of "liberty" or "property"--for if not then the state is free to use any procedures it chooses, or no procedures at all. Any temptation to say that freedom from confinement (the maximum 6 year and 8 month difference between Class I and Class II) must be a form of "liberty" was squelched in opinions such as Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979), Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981), and Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998). These hold that a judgment of conviction extinguishes natural liberty for its full length--in Montgomery's case, 40 years. Opportunities for early release, such as parole or pardon, constitute either property interests or a form of synthetic liberty, and then only if the state has made a promise. Unilateral expectations and hopes for...

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