Brennan v. Cunningham

• Decision Date: 05 November 1986
• Docket Number: No. 86-1877,86-1877
• Citation: Brennan v. Cunningham, 813 F.2d 1 (1st Cir. 1986)
• Parties: Robert BRENNAN, Plaintiff, Appellee, v. Michael J. CUNNINGHAM, etc., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

813 F.2d 1

Robert BRENNAN, Plaintiff, Appellee, v.Michael J. CUNNINGHAM, etc., Defendant, Appellant.

No. 86-1877.

United States Court of Appeals First Circuit.

Heard Nov. 5, 1986.

Decided March 3, 1987.

Ronald F. Rodgers, Sr. Asst. Atty. Gen., with whom Stephen E. Merrill, Atty. Gen., Concord, N.H., was on brief for defendant, appellant.

James E. Duggan, Concord, N.H., by Appointment of the Court, for plaintiff, appellee.

Before COFFIN, Circuit Judge, TIMBERS, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Michael J. Cunningham, warden of the New Hampshire State Prison, appeals from summary judgment on a habeas corpus petition in United States District Court for the District of New Hampshire.The court reinstated the appellee, prisoner Robert Brennan, in a work release program at the Manchester Community Correction Center (the halfway house).Brennan had been removed from the program and transferred back to prison under circumstances which the district court viewed as a violation of due process.

I.BACKGROUND

In 1966, Brennan pleaded guilty to second degree murder in the brutal killing of a six-year old boy.¹He was sentenced to life imprisonment and first became eligible for parole in 1976.His applications for parole were denied in 1976 and 1977.In May, 1983, Brennan sought admission to the work release program at the halfway house.

Brennan was able to enter the program only with the assistance of then Warden Perrin.The halfway house considers inmates for admission when they are within eight months of parole.The parole board, however, had refused to consider Brennan for parole until he had demonstrated his readiness for parole through participation in a work release program.Warden Perrin, therefore,

obtained "assurances" from the chairman of the board of parole "that if [Brennan] completed a work release program the Board would look favorably on [Brennan's] parole application in April, 1984."

Brennan v. Cunningham, 126 N.H. 600, 493 A.2d 1213, 1214(1985).On the basis of these "assurances," Brennan was transferred to the Manchester halfway house on October 28, 1983.

In December, 1983, the prison administration was restructured.A new Commissioner of Corrections, Ronald Powell, and a new warden, appellantMichael Cunningham, were appointed.SeeN.H.Rev.Stat.Ann. ch. 21-H(Supp.1986).

From the end of October, 1983, to mid-January, 1984, Brennan's life at the halfway house and his employment at the Granite State Packing Company passed without incident.In mid-January, however, a series of newspaper articles appeared that called attention to a petition to the governor by the victim's family.The petition opposed Brennan's work release status and impending parole.On January 30, 1984, an unsigned, typewritten note ² was read to Brennan that stated:

You (Robert Brennan) were transferred to the Manchester Community Correction Center with the expectation that you would receive a favorable parole hearing.However, with present community reaction to your potential parole, the Department of Corrections feels that it is less likely that you would receive a favorable decision.For your safety and for what the public perceives to be their safety, we have decided to transfer you back to the New Hampshire State Prison.

Brennan was returned to prison the same day.

On February 1, 1984, Brennan's counsel wrote to Warden Cunningham asking for a written explanation of the transfer and seeking to represent Brennan at any hearing.On February 3, a hearing was held, attended by Brennan, Warden Cunningham, and Peter McDonald, Director of Treatment and Programs.Brennan declined to request the presence of counsel after being advised that counsel would only be allowed to attend as a silent observer.Brennan was allowed to make statements in his own behalf and was not denied the opportunity to present evidence.The only evidence actually presented was Brennan's case file and statements by Brennan and McDonald.

On February 17, 1984, Brennan received a letter from the warden which stated in pertinent part:

You were removed from work release status at the Manchester Community Correction Center on Monday, January 30, 1984, pursuant to RSA 651:25, IV.Your recall to the New Hampshire State Prison was based on my judgment that the peace, safety, welfare, or security of the community may be endangered were you to remain on work release status.

....

Based on the foregoing factors, particularly the heinous nature of your crime, the relatively short period of time during which you have been incarcerated and the necessarily low level of supervision afforded work release inmates at the Halfway House, I have decided to discontinue your participation in the work release program for the indefinite future.Your participation in that program will be considered once again if and when the Adult Parole Board assigns you a definite parole date.

In September, 1984, the Parole Board voted to deny Brennan parole, stating that "[r]elease at this time would depreciate the seriousness of his crime."

In April, 1984, Brennan initiated habeas corpus proceedings in state court.The initial petition requested that

Petitioner be allowed forthwith to resume and complete his work release at the Manchester Community Correction Center, and upon his successful completion thereof to receive a parole hearing no less favorable than the hearing expected by Petitioner and the Respondents when Petitioner's work release was terminated.

Brennan pursued this petition in state court until its rejection by the New Hampshire Supreme Court in May, 1985.SeeBrennan v. Cunningham, 126 N.H. 600, 493 A.2d 1213(N.H.1985).

The United States District Court for the District of New Hampshire granted Brennan's petition on motions for summary judgment.In an April, 1986, order, the court found that, based on existing state regulations, revocation of work release implicated a liberty interest for due process purposes.In an August, 1986, order, the court held that Brennan was entitled to the kind of due process hearing described in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935(1974).The court found that the written statement issued by the warden after the hearing was defective because it was not based on the "modicum of evidence" required by the Court in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356(1985)(Hill ), for hearings under Wolff.The court ordered that Brennan be reinstated in the halfway house and that a parole board hearing be held upon Brennan's completion of the halfway house program.

II.REINSTATEMENT IN THE HALFWAY HOUSE AS A HABEAS CORPUS ACTION

Appellant raises the threshold issue of the appropriateness of maintaining this action under the federal habeas corpus statute, 28 U.S.C. Sec. 2254(1982).He argues that the claim for reinstatement challenges the conditions of confinement and not the fact or length of confinement.Citing Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439(1973), appellant contends that the proper vehicle for such a challenge is the civil rights statute, 42 U.S.C. Sec. 1983(1982).

We reject this contention.We do not agree that Preiser would mandate that the reinstatement claim be brought as a Sec. 1983 action even if we were to accept appellant's characterization of the claim as a challenge to the conditions of confinement.In Preiser, 411 U.S. at 499-500, 93 S.Ct. at 1841, the Court explicitly left open the possibility that a challenge to prison conditions, cognizable under Sec. 1983, might also be brought as a habeas corpus claim.³See alsoBell v. Wolfish, 441 U.S. 520, 526-27 n. 6, 99 S.Ct. 1861, 1867-68 n. 6, 60 L.Ed.2d 447(1979);Dickerson v. Walsh, 750 F.2d 150, 153-54(1st Cir.1984).

We find, moreover, that this case may be properly viewed as similar to cases involving challenges to the fact or length of confinement.The work release program in New Hampshire is closely connected to a prisoner's impending release.The program considers for admission only those inmates who are within eight months of parole.The program's "Mission Statement," printed in the "Community Centers--Handbook of Rules and Regulations"(Handbook), states that the "Centers function as testing situations to enable inmates to demonstrate they are capable of leading responsible law-abiding lifestyles."See Handbook, Rule C.Moreover, the Handbook states that admission into this "testing situation" for release is granted only after a lengthy application process involving consideration by a classification board, and approval by the warden and the sentencing judge.Seeid. at Rule D, "Application and Screening Process."Presumably, this evaluation process is undertaken in light of the "mission" of the program.

Finally, the actual operation of the work release program shows that it indeed warrants our viewing it as a "halfway house" between incarceration and release.The Handbook states that "[t]he program allows for the resident to progress through four phases of increasing freedom and responsibility."SeeHandbookat 13.The four phases culminate in such freedoms as

"UNSUPERVISED OUTINGS OF UP TO12 HOUrs."id. at 14.

The present case provides a telling example of the intimate connection between the halfway house program and ultimate parole.Brennan's admission to the program was the culmination of a "long-range pre-parole plan" lasting several years.SeeBrennan v. Cunningham, 493 A.2d at 1214.This plan included a year of intensive therapy at the New Hampshire Hospital for "sexual abnormality," as well as participation in "socializing programs" in the prison's minimum security unit.Id.Finally, Brennan was admitted to the halfway house only after the "assurances" from the Parole Board were obtained by Warden Perrin that the board would "look favorably" on Brennan's parole application in ...