Asherman v. Meachum
| Decision Date | 01 May 1991 |
| Docket Number | No. 982,D,982 |
| Parties | Steven M. ASHERMAN, Plaintiff-Appellee, v. Larry MEACHUM, Commissioner, Connecticut Department of Corrections, Defendant-Appellant. ocket 90-2530. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen J. O'Neill, Asst. Atty. Gen., for the State of Conn. (Clarine Nardi Riddle, Atty. Gen., Steven R. Strom, Asst. Atty. Gen., Hartford, Conn., of counsel), for defendant-appellant.
William J. Tracy, Jr. (Furey, Donovan, Eddy, Kocsis, Tracy & Daly, P.C., Bristol, Conn., of counsel), for plaintiff-appellee.
Before OAKES, Chief Judge, and LUMBARD and CARDAMONE, Circuit Judges.
Larry Meachum, Commissioner of the Connecticut Department of Corrections, takes an expedited appeal from an October 24, 1990 judgment entered in the United States District Court for the District of Connecticut (Burns, C.J.) granting appellee Steven Asherman's petition for a writ of habeas corpus. In his petition, Asherman asserted, inter alia, that his Fifth Amendment privilege against self-incrimination had been violated when the Connecticut Commissioner revoked his supervised home release (SHR) status.
The writ of habeas corpus has served as a bulwark protecting individual freedom in England and America for centuries. Among those rights that preserve the personal liberty of individuals under the law of England, Blackstone tells us, is the writ of habeas corpus, "to bring [that person's] body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as justice shall appertain." 1 W. Blackstone, Commentaries on the Laws of England 131 (Univ. of Chicago Press 1979). The writ's "history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments." Brown v. Allen, 344 U.S. 443, 512, 73 S.Ct. 397, 449, 97 L.Ed. 469 (1953) (Frankfurter, J., concurring). This appeal illustrates that the Great Writ--that ancient buttress for individual liberty--is still alive and well.
Petitioner was convicted of manslaughter in the first degree in 1980 in a Connecticut State Court after being found guilty of committing a particularly brutal crime, one in which the victim was stabbed over 100 times. He was sentenced to seven to 14 years imprisonment, and after pursuing a lengthy but ultimately unsuccessful appeal--during which time he was free on bond--he began serving his sentence on March 19, 1985. Thirty-three months later in December 1987, the Commissioner approved Asherman's application for community release, conditioning that privilege on petitioner undergoing drug-abuse and mental-health counseling, in addition to the usual conditions imposed on all releasees.
Asherman also signed a document entitled "Community Residence Agreement and Notification" that stated in pertinent part: "I understand and accept the Community Residence Program as a privilege and thereby may lose this privilege if and when the Commissioner of Corrections or his designee deams (sic) appropriate." The next month, January 1988, petitioner was placed in a halfway house. While there he completed the required drug and mental health counseling; in March he was placed in the supervised home release program (SHR) and began living in an apartment with his wife and working as a computer systems analyst. His release status was short-lived.
In July 1988 the Parole Board denied appellee's application for parole, citing the seriousness of the crime for which Asherman had been convicted, and its findings that there was no "reasonable probability" that he could remain at liberty without violating the law and his release would be incompatible with the public's welfare. A month later Asherman's supervisor ordered him to report to the Department of Corrections to undergo psychological evaluation scheduled for August 24 and 25 because the Commissioner believed that he might have reacted negatively to the denial of parole. Appellee's counsel wrote the Commissioner on August 22, 1988 seeking clarification Asherman was subsequently charged in a disciplinary proceeding with violating the conditions of community residence based on his statement that he would not answer questions relating to the crime for which he had been convicted. After finding he had violated the conditions of his release, the disciplinary committee recommended that the classification committee review Asherman's classification status. Upon review the warden modified the disciplinary committee's "guilty" finding to a finding that Asherman was "not guilty" of a disciplinary violation, but the recommendation that Asherman's classification status be reviewed was upheld, and the entire proceeding was then recast as a classification hearing.
of the evaluation proceeding, informing him that there was pending a petition for a writ of habeas corpus in federal district court challenging his conviction (the petition was ultimately denied), Asherman would appear at the evaluation but would not answer questions related to his conviction. When petitioner reported to the Department of Corrections on August 24 he was taken into custody in the Hartford Correctional Center; he filed a petition for a writ of habeas corpus in state court the same day.
The classification committee later recommended that petitioner be returned to a medium or minimum security facility. The warden approved and Asherman was informed by a September 7, 1988 letter from Commissioner that stated in pertinent part
Your refusal to fully participate in th[e] psychiatric evaluation precludes me from obtaining information necessary to determine whether the denial of parole in and of itself had such an impact upon you that you no longer are a suitable person for home release status.
The absence of the information referred to ... above constitutes sufficient ground for determining that you no longer are a suitable person for home release status.
Your conduct in this regard has denied me the opportunity to obtain information which is essential to my continuing authority to review your suitability for the privilege of home release. I am compelled therefore to conclude that you are no longer suitable for this status and I herewith transfer you to confinement within a correctional facility....
On November 10, 1988 the Connecticut Superior Court ruled on Asherman's August 24, 1988 petition for a writ of habeas corpus. It decided he did not have a protected liberty interest in home release status under the Due Process Clause of the United States Constitution, but that the provisions of the Community Residence Agreement and Notification and the Conditions of Community Residence created such a liberty interest, and that the requirements of due process had not been met.
As a result, another administrative hearing was held on January 3, 1989--by order of the Superior Court the Commissioner did not participate--at which the warden determined that Asherman be reinstated to SHR status on January 12, 1989. On January 12, 1989 William A. O'Neil, then governor of Connecticut, directed that Asherman not be released, effectively staying the warden's determination. The Superior Court of Connecticut promptly granted Asherman's motion to terminate that stay. When the Connecticut Supreme Court affirmed the termination of the stay Asherman was released into the SHR program on May 7, 1989. On November 28, 1989 the Connecticut Supreme Court reversed the Superior Court's November 10 decision that Asherman had been reimprisoned in violation of due process. See Asherman v. Meachum, 213 Conn. 38, 566 A.2d 663 (1989). On December 19, 1989 he was reimprisoned.
In January 1990 petitioner filed the instant petition for a writ of habeas corpus in the United States District Court for the District of Connecticut. On May 4 the Commissioner moved unsuccessfully to dismiss it on the ground that Asherman had failed to exhaust his state remedies. Chief Judge Burns granted Asherman's May 22, 1990 motion for summary judgment and issued the writ on October 24, 1990 holding that though Asherman's due process, equal protection, and First Amendment rights
were not violated, his Fifth Amendment rights had been transgressed by his removal from SHR because the invocation of the Fifth Amendment had been given as the reason for his removal. She ordered that he be returned to SHR status. The Commissioner appeals from this order. We affirm.
On appeal the Commissioner contends that (1) Asherman failed to exhaust his state court remedies with respect to his Fifth Amendment privilege, (2) Asherman waived his right to assert this constitutional argument, (3) his removal from SHR status was not violative of that right, and (4) a grant of summary judgment in petitioner's favor was improper. The Commissioner also contests appellee's assertion that the district court incorrectly denied his due process, equal protection, and First Amendment claims. Because we conclude petitioner exhausted his state court remedies, did not waive his right to assert Fifth Amendment protection, was removed from SHR status in violation of that constitutional right and was entitled to a grant of summary judgment, we need not reach or decide Asherman's other constitutional claims.
We dispose at the outset of the Commissioner's assertion that the district court erred in granting summary judgment because it disregarded unrefuted testimony, ignored evidentiary material, and made independent findings of fact. These claims are either unsupported by the record, or fail to demonstrate material facts as to which there is a genuine issue for trial. Thus, this argument fails. Fed.R.Civ.P. 56(e).
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