Ellard v. Alabama Bd. of Pardons and Paroles, 86-7438

• Decision Date: 19 August 1987
• Docket Number: No. 86-7438,86-7438
• Citation: 824 F.2d 937
• Parties: Richard Mark ELLARD, Petitioner-Appellant, v. ALABAMA BOARD OF PARDONS AND PAROLES; Ealon M. Lambert, John Thomas Porter, and Ray Morrow, members of the Board of Pardons and Paroles of the State of Alabama; and State of Alabama, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 937

824 F.2d 937

Richard Mark ELLARD, Petitioner-Appellant, v. ALABAMA BOARD OF PARDONS AND PAROLES; Ealon M. Lambert John Thomas Porter, and Ray Morrow, members of the Board of Pardons and Paroles of the State of Alabama; and State of Alabama, Respondents-Appellees.

No. 86-7438.

United States Court of Appeals Eleventh Circuit.

Aug. 19, 1987.

Rehearing and Rehearing En Banc Denied Sept. 24, 1987.

Ralph I. Knowles, Drake, Knowles & Pierce, Tuscaloosa, Ala., for petitioner-appellant.

Donald Siegelman, Atty. Gen., The Alabama State House, Montgomery, Ala., Joseph G.L. Marston, III, Asst. Atty. Gen., Sydney Albert Smith, Alabama Board of Pardons & Paroles, Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before FAY and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

At issue in this appeal is whether a prisoner who has been paroled by one state directly into the custody of another state has a constitutionally protected liberty interest in the first state's grant of parole. The district court concluded that, because such a prisoner has not been released into society, the grant of parole does not create a liberty interest protected by the due process clause of the fourteenth amendment. We reverse and remand to the district court for an evidentiary hearing.

I. BACKGROUND

In 1972, appellant, Richard Mark Ellard, pleaded guilty in Alabama to one count of first degree murder and one count of assault with intent to murder. He was sentenced to life in prison on the murder charge and to a concurrent 22-year sentence on the assault charge. In 1976, Ellard pleaded guilty in Georgia to another murder charge. ¹ He was given a life sentence to run concurrently with the Alabama sentences. After the Georgia sentence was imposed, Ellard remained in custody in the Alabama prison system.

In 1981, the Alabama Board of Pardons and Parole granted Ellard parole and released him into the custody of the state of Georgia to serve his life sentence there. Following a burst of public outrage at the parole decision, the Parole Board requested Alabama Attorney General Charles Graddick to provide an opinion on whether the Board validly could revoke a parole that was "legally issued" but that operated only to release the parolee directly into the custody of another state to serve a pending sentence there. Graddick informed the Board that in his opinion the decision to grant Ellard parole was based upon incomplete information and thus was in violation of Alabama law. He concluded that the Board therefore was authorized to reconsider its decision to grant Ellard parole. The Board, relying on this opinion, declared Ellard in technical violation of his parole and had him returned from Georgia. After conducting an evidentiary hearing, the Board revoked Ellard's parole. Ellard subsequently was transferred back to Georgia to serve out his sentences there.

Ellard commenced state proceedings in Alabama to have the parole revocation reversed. The Alabama Court of Criminal Appeals found that the initial parole decision was based upon incomplete information, was not in accordance with the Parole Board's authority under Alabama law, and thus was void. Ellard v. State, 474 So.2d 743 (Ala.Crim.App.1984). In affirming, the Alabama Supreme Court relied on a completely different rationale. That court concluded, in a 5-to-4 decision, that the Parole Board has the inherent authority to reconsider and rescind a grant of parole so long as "the prisoner is accorded his due process rights." Ex parte Ellard, 474 So.2d 758, 763 (Ala.1985).

Ellard subsequently filed a petition for habeas corpus in federal court. The district court, adopting the recommendations of the magistrate, concluded that because Ellard never had been released from prison confines, he did not have a liberty interest and thus "was not entitled to any federal due process protection." The court rejected as "farfetched and meritless" Ellard's contention that the grant of parole by Alabama created a liberty interest by increasing his chances of eventual freedom should Georgia eventually grant him parole. The court also summarily rejected Ellard's claim that the Board denied him equal protection by treating him differently than all other parolees.

II. A LIBERTY INTEREST?

The due process clause of the fourteenth amendment to the United States Constitution provides that no state "shall deprive any person of life, liberty, or property without due process of law." Although "[l]awful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen," prisoners nevertheless "may claim the protections of the Due Process Clause." Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). Yet, "the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed." Id. at 556, 94 S.Ct. at 2975. Consequently, prisoners "retain only a narrow range of ... liberty interests" protected by the due process clause. Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983).

Those liberty interests of prisoners that are protected by the fourteenth amendment "arise from two sources--the due process clause itself and the laws of the State." Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). For a protected interest to arise from the due process clause itself, there must be in "the nature of the interest" some qualities that are inherently deserving of protection. See Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972). Due to "the necessary withdrawal or limitation of many privileges and rights" that results from lawful incarceration, Price v. Johnson, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356, protected interests that arise purely from the due process clause are restricted to "the most basic liberty interests in prisoners." Hewitt v. Helms, 459 U.S. at 467, 103 S.Ct. at 869. Thus, the Constitution itself does not guarantee either parole, Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), or good-time credit for satisfactory behavior, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), nor does it protect against either the transfer from one prison to another, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2632, 49 L.Ed.2d 451 (1976), or "administrative segregation" within a particular prison, Hewitt v. Helms, supra. Once an individual has been released into society under the constraints of either parole or probation, however, the resulting freedom, "although indeterminate, includes many of the core values of unqualified liberty" and thus inherently "falls within the protection of the Fourteenth Amendment." Morrissey v. Brewer, 408 U.S. at 482, 92 S.Ct. at 2601 (parole); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation); see also Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980) (involuntary confinement in mental hospital so "qualitatively different" from usual confinement for criminal conviction that its imposition must be according to strictures of due process clause).

In considering whether Ellard's parole by the state of Alabama into the custody of the State of Georgia created a constitutionally protected interest, the district court examined primarily the nature of the interest immediately created by the grant of parole. See Morrissey v. Brewer, 408 U.S. at 483, 92 S.Ct. at 2601. Concluding that Ellard "has not received any liberties because of the parole and [that] the possibility of future liberty is speculative," the court decided that Ellard's parole did not create a protected liberty interest.

If the nature of the liberty created by the parole were the only basis for determining that the interest deserves protection by the due process clause, we might be inclined to agree with the conclusion of the district court. As we have noted, however, a liberty interest may also arise from state laws. See, e.g., Hewitt v. Helms, supra; Vitek v. Jones, 445 U.S. at 488, 100 S.Ct. at 1261 (1980); Whitehorn v. Harrelson, 758 F.2d 1416, 1422 (11th Cir.1985). This occurs when a state places "substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). Thus, for example, although "the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison," once a state has "created the right to good time" and has established standards for its revocation, "the prisoner's interest has real substance" and falls within the protections of the fourteenth amendment. Wolff v. McDonnell, 418 S.Ct. at 557, 94 S.Ct. at 2975. Similarly, although the mere possibility of parole provides simply "a hope that is not protected by due process," a state might create by statute "an expectancy of release [that] ... is entitled to some measure of constitutional protection." Greenholtz, 442 U.S. at 11, 12, 96 S.Ct. at 2105, 2106 (1979); see also Vitek v. Jones, 445 U.S. at 489, 100 S.Ct. at 1262 (liberty interest against transfer to mental hospital created by "objective expectation, firmly fixed in state law and official penal complex practice").

As was correctly noted in the magistrate's report adopted by the district court, the Alabama parole statute frames the Parole Board's authority in discretionary terms, and thus does not create for Alabama prisoners a protected liberty interest in the expectation of parole. See Thomas v. Sellers, 691 F.2d 487 (11th Cir.1983). We are not here confronted, however, with a claim that a liberty interest in parole arises from the...