Ex parte Berry

• Decision Date: 01 September 2000
• Parties: Ex parte Douglas BERRY. (Re Douglas Berry v. Alabama Department of Corrections).
• Court: Alabama Supreme Court

794 So.2d 307

Ex parte Douglas BERRY.

(Re Douglas Berry v. Alabama Department of Corrections).

1990230.

Supreme Court of Alabama.

September 1, 2000.

Rehearing Denied December 15, 2000.

Douglas Berry, petitioner, pro se.

Andrew W. Redd, general counsel, and William F. Addison, asst. general counsel, Department of Corrections, for respondent.

COOK, Justice.

Douglas Berry, an Alabama prisoner, appealed from the circuit court's summary dismissal of his writ of habeas corpus. The Court of Criminal Appeals, on September 10, 1999, affirmed by an unpublished memorandum, Berry v. Alabama Dep't of Corrections, (No. CR-98-1789) 778 So.2d 882 (1999) (table). We granted Berry's petition for certiorari review. Berry argues that the Department of Corrections, without providing him due process, deprived him of a liberty interest he claimed in remaining a part of the work-release program, by removing him from work-release status. Berry's removal from work-release status was the result of an administrative change in the criteria that determined an inmate's eligibility for the program. Berry further argues that the Department of Corrections' policy and procedures created on the part of an inmate a liberty interest in retaining work-release status.

On December 8, 1992, Berry began participating in the work-release program, and he continued to do so for over six years. On February 12, 1999, his work-release status was revoked. On March 17, 1999, he was notified that he was to appear before a reclassification committee on March 18, 1999. On March 18, the reclassification committee informed Berry that he was being reclassified as a "heinous offender," pursuant to new criteria that became effective on February 3, 1999. The committee also informed Berry that because of his new classification as a "heinous offender" he was permanently ineligible to participate in the work-release program. Berry argues that he was entitled to a due-process hearing, as provided by the Department of Corrections' Classification Manual, before the Department of Corrections could revoke his work-release status.

The United States Constitution has not been interpreted to confer on inmates a liberty interest in work-release programs. See Whitehorn v. Harrelson, 758 F.2d 1416 (11th Cir.1985). Nor has Alabama law. See Francis v. Fox, 838 F.2d 1147 (11th Cir.1988). In Fox, the United States Court of Appeals for the Eleventh Circuit stated: "The existence of a liberty interest in work-release arising from state law depends on the extent to which official discretion has been constrained by statute, regulation, or practice." Id. at 1149. Section 14-8-2(a), Ala.Code 1975, allows inmates to leave the prison facility and work at paid employment "at the discretion of the [B]oard [of Corrections]." Therefore, the statute governing work release does not confer a liberty interest, but leaves any inmate's participation in the work-release program to the discretion of the Board of Corrections. The Eleventh Circuit further held in Fox that the regulations employed in that case protected the Department's discretion in choosing inmates for the work-release program. Fox, 838 F.2d at 1149-50.

However, Berry argues that the Department of Corrections' Classification Manual, not the statute, created a liberty interest, by stating: "No due process hearing is required for transfers among institutions other than removal from full work release status including free world employment, PDL or SIR." (Emphasis added.) The Classification Manual, by requiring a due-process hearing before an inmate is removed from full work-release status, imposes a restriction on the discretionary power of the Board of Corrections.

This Court has not previously addressed the issue whether the Department of Corrections' regulation and practice confers upon an inmate a liberty interest in participating in the work-release program. However, the Eleventh Circuit has previously addressed this issue. In Whitehorn v. Harrelson, 758 F.2d 1416, 1422 (11th Cir.1985), the Eleventh Circuit narrowed the issue to "whether the State of Alabama, by statute, regulation, or practice, created a liberty interest in the plaintiff's continued participation in the Alabama work release program that could not properly be revoked without due process of law." In answering that question the Eleventh Circuit wrote:

"The rules and procedures set forth in the Handbook suggest that the Alabama Department of [Corrections'] discretion to terminate a prisoner's work release status is a guided discretion that cannot be exercised for any reason or for no reason at all. This limitation on the prison administration's discretion, coupled with the severity of the loss of conditional liberties enjoyed by a participant in the work release program, tends to establish a legitimate expectation [of] or entitlement to the plaintiff's continued participation in the work release program.... Moreover, although the plaintiff has asserted that his protected liberty interest stems, at least in part, from the practices of the prison administration, there has been no factual development in the case concerning these practices. All of these elements must be considered before a determination can be made of the nature of the plaintiff's protected liberty interest, if any, its scope, and the due process protections implicated by its revocation.

". . . .

"`... [T]he practices of a state may be determinative, for even if a state by statute or regulation explicitly refuses to grant inmates certain liberty interests, practices of a state may nevertheless give rise to those same liberty interests.'"

Id. at 1424 (quoting Parker v. Cook, 642 F.2d 865, 876 (5th Cir.1981)). The Eleventh Circuit held that Whitehorn had "raised a genuine issue of material fact as to the regulations applicable at the time his work release status was revoked and as to the official prison practices regarding revocation of work release" and that the "[s]ummary dismissal of Whitehorn's claim was, therefore, inappropriate." Id. at 1425.

Similarly, in this present case Berry argues that the procedures set out in the Classification Manual require a due-process hearing before an inmate's participation in the work-release program can be terminated. Berry has provided this Court with the portion of the Department of Corrections' Classification Manual that contains the language stating that "[n]o due process hearing is required for transfers among institutions other than removal from full work release status including free world employment, PDL or SIR." Berry also alleges that it has been the practice of the Department of Corrections to remove inmates from the work-release program only after the inmate commits some infraction of an administrative rule or regulation. The language in the Classification Manual prevents the Department of Corrections from arbitrarily removing an inmate from the work-release program, and, by doing so, creates a liberty interest in an inmate's continued participation in the work-release program. Therefore, the circuit court erred in summarily dismissing Berry's petition for the writ of habeas corpus. Berry's petition creates a genuine issue of material fact as to the applicability of the regulation to his work-release status.

The judgment of the Court of Criminal Appeals is reversed, and the case is remanded for that court to remand to the circuit court for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, LYONS, JOHNSTONE, and ENGLAND, JJ., concur.

HOOPER, C.J., and MADDOX, SEE, and BROWN, JJ., dissent. HOOPER, Chief Justice (dissenting).

I must respectfully dissent. The main opinion relies on Whitehorn v. Harrelson, 758 F.2d 1416 (11th Cir.1985), for the determination that the Department of Corrections manual has given Douglas Berry a liberty interest in his work-release status. However, in Whitehorn, the United States Court of Appeals for the Eleventh Circuit stated that the revocation of work-release status may "trigger the protections of the due process clause if the State of Alabama, through its statutes, regulations, or official practices has placed substantive restrictions on the prison administration's discretion to revoke work release participation." 758 F.2d at 1426. That court found material questions of fact as to whether the practices of the Department of Corrections had placed restrictions on the Department's discretion to revoke an inmate's work-release status; therefore, the summary judgment was inappropriate.

The Eleventh Circuit noted that a full factual development was required for a resolution of the issue: "The court must examine the statute creating the program, the regulations governing work release, and the practices of the prison officials in administering the program to determine whether any of these sources place a restriction on the prison official's discretion to revoke a prisoner's work release status." 758 F.2d at 1422. Although the Whitehorn court stated that the rules and procedures listed in the handbook "suggest[ed]" that the discretion to terminate a prisoner's work-release status may be limited, the court held that the issue should be resolved by the district court.

Following Whitehorn, I would reverse the dismissal and remand the case for further proceedings in the trial court, rather than expressly finding that the Classification Manual created a liberty interest in Berry's continued participation in the work-release program.

BROWN, Justice (dissenting).

I dissent from this Court's judgment and opinion, which has the effect of...