Davis v. Bryan

• Decision Date: 14 November 1989
• Docket Number: No. 1273,D,1273
• Citation: 889 F.2d 445
• Parties: Arthur DAVIS, Plaintiff-Appellant, v. Kay BRYAN and Raymond Lopes, Defendants-Appellees. ocket 89-2101.
• Court: U.S. Court of Appeals — Second Circuit

Page 445

889 F.2d 445

Arthur DAVIS, Plaintiff-Appellant, v. Kay BRYAN and Raymond Lopes, Defendants-Appellees.

No. 1273, Docket 89-2101.

United States Court of Appeals, Second Circuit.

Argued June 22, 1989.

Decided Nov. 14, 1989.

William M. Bloss, New Haven, Conn. (Jacobs, Grudberg, Belt & Dow, New Haven, Conn. of counsel), for plaintiff-appellant.

Leslie D. McCallum, Asst. Atty. Gen., Hartford, Conn. (Clarine Nardi Riddle, Acting Atty. Gen. (Deputy Atty. Gen.), Hartford, Conn. of counsel), for defendants-appellees.

Before MESKILL, PIERCE, and MAHONEY, Circuit Judges.

PIERCE, Circuit Judge:

In this Sec. 1983 action, plaintiff-appellant Arthur Davis alleges that he is entitled, under Connecticut law, to be sentenced to a minimum term of imprisonment of from ten to twenty-five years for each of six consecutive life sentences which he is presently serving. Davis asserts that his due process rights were violated when a state prison official determined that his "minimum sentence" on each count was twenty-five years; he claims that he is entitled to have a judge make this determination.

In an earlier appeal, we reversed an order of the United States District Court for the District of Connecticut which granted a motion for summary judgment by the defendants and we remanded the matter. Davis v. Bryan, 810 F.2d 42 (2d Cir.1987). Upon an expanded record, the district court, Jose A. Cabranes, Judge, has granted summary judgment. Davis appeals from this determination and, since we find that Davis is not entitled to be sentenced to a minimum term of less then twenty-five years, we affirm the district court.

BACKGROUND

While familiarity with our prior decision is assumed, we restate the undisputed facts.

On November 16, 1966, Davis was convicted in Connecticut by a three-judge state court of six counts of murder in the first degree. The next day he was sentenced to death pursuant to Conn. Gen. Stat. Sec. 53-10. ¹ The conviction and sentence were affirmed after direct appeal to the Connecticut Supreme Court. State v. Davis, 158 Conn. 341, 260 A.2d 587 (1969) ("Davis I" ).

In 1969, Connecticut revised its penal code, including the statutes regarding sentencing. Pub. Act No. 69-828 (codified, as amended, at Conn.Gen.Stat.Ann. Sec. 53a-1 et seq. (West 1985)). The revised penal code was expressly made applicable to crimes committed on or after October 1, 1971. Conn.Gen.Stat.Ann. Sec. 53a-2 (West 1985). In 1972, Sec. 53a-35, adopted as part of this revision, provided that murder was punishable with either the death penalty or an indeterminate sentence, imposed by the court, consisting of a minimum term of from ten to twenty-five years and a maximum term of life in prison. Pub. Act No. 71-871, Sec. 13 (codified, as amended, at Conn.Gen.Stat.Ann. Sec. 53a-35(b), (c) (West 1985)).

In the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court granted certiorari in over 100 cases in which the death penalty had been imposed. This included appellant's case. See Davis v. Connecticut, 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d 750 (1972) ("Davis II" ). In each case, the Supreme Court vacated the imposition of the death penalty and remanded for further proceedings. See 408 U.S. 933-40 (1972) (citing Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972)).

The Connecticut Supreme Court, in turn, remanded the case to the Superior Court "for further proceedings and the imposition of penalty." State v. Davis, 163 Conn. 642, 316 A.2d 512, 512 (1972) ("Davis III "). On November 16, 1972, a three-judge panel of the Superior Court re-sentenced Davis to consecutive terms of life imprisonment on each of the six counts of murder. The mittimus transmitted to the Commissioner of Corrections, which is the only evidence of the re-sentencing proceedings that has been produced, does not state the statutory basis for these "straight life" sentences.

In 1980, the Connecticut sentencing statute was again revised, this time to provide for definite sentences for felonies committed on or after July 1, 1981. Pub. Act No. 80-442, Sec. 10 (codified at Conn.Gen.Stat.Ann. Sec. 53a-35a (West 1985)). In conjunction with this revision, Sec. 53a-35(a) was amended to provide that indeterminate sentencing was required for "any felony committed prior to July 1, 1981." Pub. Act No. 80-442, Sec. 9.

In December 1984, the Superior Court held that all Connecticut prisoners serving life sentences were entitled to benefit from a 1980 amendment to Conn.Gen.Stat. Sec. 54-125 ² which eliminated a restriction on the amount of good time credit they could earn. Ray v. Warden, No. 296657 (Super. Ct. Dec. 7, 1984). In applying the amendment retroactively, the court relied on the application of Conn.Gen.Stat. Sec. 18-7 to prisoners sentenced "prior to October 1, 1976." Id., slip op. at 4.

In January 1985, defendant-appellee Kay Bryan, a records supervisor at the Connecticut Correctional Institution at Somers, recalculated Davis' sentence time as part of her effort to identify prisoners who could benefit from the Ray decision. In the course of calculating appellant's parole eligibility Bryan treated the minimum term of imprisonment on each of Davis' life sentences as twenty-five years.

On January 25, 1985, Bryan sent her calculations to Davis. In a memorandum, she informed Davis that Ray "allows the computation on [sic] the minimum portion of your sentence to be computed as 25 year [sic] less all possible good time [credits]." Attached to this memorandum was a "Time On January 31, 1985, Davis wrote to Warden George Bronson complaining that the records office had imposed a minimum sentence of twenty-five years on each of his life sentences. He argued that the 1980 amendment of Sec. 53a-35 had served to "vacate[ ]" his straight life sentence and that he was entitled to be re-sentenced.

Sheet" which she had completed. This form indicated that Davis had been sentenced to an "Indeterminate" sentence consisting of a "sentenced minimum" of 150 years and a "sentenced maximum" of life.

Warden Bronson responded on February 5, 1985. He noted that "[a] sentence of 'Life' has always been computed as a sentence of 25 years to Life, less a maximum good time credit of five (5) years." Bronson stated that although the 1976 amendment of Sec. 54-125 had deleted reference to the twenty-five year minimum parole date on "straight life" sentences, the Department of Corrections was permitted to continue using the twenty-five year minimum under Conn.Gen.Stat. Sec. 1-1(t). ³

Dissatisfied with the response he received from the prison officials, Davis commenced the instant action seeking damages and declaratory and injunctive relief.

Upon remand from this court, the action was rereferred to Magistrate Margolis. Court-appointed counsel filed an amended complaint and defendants moved for summary judgment. On January 10, 1989, Magistrate Margolis recommended that defendants' motion be granted; Judge Cabranes adopted this recommendation on February 10, 1989. The present appeal followed.

DISCUSSION

A state prisoner has a due process interest in having the correct sentence imposed by the appropriate authority. See generally King v. Hoke, 825 F.2d 720, 724-25 (2d Cir.1987) (habeas corpus granted where judge probably held incorrect view of applicable parole law when sentencing petitioner); Burge v. Butler, 867 F.2d 247, 250 (5th Cir.1989) (habeas petition granted where sentence given was not available under law applicable at time crime was committed); Wasko v. Vasquez, 820 F.2d 1090 (9th Cir.1987) (habeas relief available where Department of Corrections increased petitioner's prison term in contravention of state's sentencing statute).

Davis contends that his due process rights were violated when Bryan "imposed" the highest possible minimum sentence available under Sec. 53a-35 and urges that his minimum sentence should have been determined by a judge. In order to prevail on this claim, Davis must establish both that he was entitled to be sentenced under Sec. 53a-35 and that Bryan impermissibly treated his "straight life" sentences as requiring a twenty-five year minimum.

It is clear that, in 1966, when Davis committed his crimes and was tried, convicted and sentenced, Sec. 53-10 was the applicable statute. While the Supreme Court's remand in 1972 necessitated that Davis' case be re-opened for re-sentencing, we do not view this remand as entitling him to be sentenced under Sec. 53a-35 which had been adopted during the interim.

Section 53a-2 provides that the 1971 revision of Connecticut's penal code is applicable to offenses committed after October 1, 1971 "unless otherwise expressly provided or unless the context otherwise requires." ⁴ See Comm'n to Revise Crim. Statutes, 1971 Comments to Sec. 53a-2 (West 1985) (section "makes clear that the Code only applies to offenses committed on or after October 1, 1971") (emphasis added). We decline to accept Davis' invitation that we construe the portion of Sec. 53a-2 which leaves open the possibility that the revised penal code might not apply to some offenses committed after October 1, 1971 as a grounds for finding that, in certain circumstances, it must be applied to offenses committed prior to the effective date.

Indeed, in 1969 the Connecticut General Assembly established a committee to consider parole and especially the parole eligibility of prisoners serving life sentences. House Jt. Res. 292, 1969 Sess. of the Gen. Assembly. In 1971, this Committee recommended that Sec. 53a-35 be amended "to include within its scope all prisoners currently serving life sentences in Connecticut." Legislative Committee on Parole Eligibility, Report to the 1971 Sess. of the Gen. Assembly 6 (1971). The legislature, however, reenacted the revised penal code without this recommended expansion. Cf. Kimbro, 295 A.2d at 573 & n. 2 (discussing legislature's failure to revise Sec. 54-125 in light of Committee's...