GonzÁlez-fuentes v. Molina, No. 08-1818

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: HOWARD, Circuit
• Citation: 607 F.3d 864
• Parties: Efraín GONZÁLEZ-FUENTES, et al., Petitioners, Appellees,v.Hon. Carlos MOLINA, Secretary of Corrections and Rehabilitation of Puerto Rico and Administrator of Corrections of the Commonwealth of Puerto Rico, Respondent, Appellant.Carmen Rivera-Feliciano, et al., Plaintiffs, Appellees,v.Hon. Luis Fortuno Burset, Governor of Puerto Rico; Hon. Roberto Sanchez-Ramos, Secretary of Justice of the Commonwealth of Puerto Rico; Hon. Carlos Molina, Secretary of Corrections and Rehabilitation of Puerto Rico and Administrator of Corrections of the Commonwealth of Puerto Rico; Hon. Jose R. Lozada, Director of the Bureau of Special Investigations of the Commonwealth of Puerto Rico, Defendants, Appellants.
• Docket Number: No. 08-1818,08-1819.
• Decision Date: 10 June 2010

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Efraín GONZÁLEZ-FUENTES, et al., Petitioners, Appellees,
v.
Hon. Carlos MOLINA, Secretary of Corrections and Rehabilitation of Puerto Rico and Administrator of Corrections of the Commonwealth of Puerto Rico, Respondent, Appellant.
Carmen Rivera-Feliciano, et al., Plaintiffs, Appellees,
v.
Hon. Luis Fortuno Burset, Governor of Puerto Rico; Hon. Roberto Sanchez-Ramos, Secretary of Justice of the Commonwealth of Puerto Rico; Hon. Carlos Molina, Secretary of Corrections and Rehabilitation of Puerto Rico and Administrator of Corrections of the Commonwealth of Puerto Rico; Hon. Jose R. Lozada, Director of the Bureau of Special Investigations of the Commonwealth of Puerto Rico, Defendants, Appellants.

Nos. 08-1818, 08-1819.

United States Court of Appeals,
First Circuit.

Heard June 3, 2009.
Decided June 10, 2010.

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Susana I. Peñagarícano-Brown, Puerto Rico Department of Justice, with whom Roberto J. Sanchez Ramos, Secretary of Justice, Ileana M. Oliver-Falero, Acting Solicitor General, and Carlos A. Del Valle Cruz, Special Counsel, were on brief, for appellants.

Guillermo Ramos Luiña, with whom Carlos V. García Gutiérrez, Alejandra Bird Lopez and Rafael E. Rodríguez Rivera, were on brief, for appellees.

Before HOWARD, SELYA and EBEL ^*, Circuit Judges.

HOWARD, Circuit Judge.

In 2005, the Commonwealth of Puerto Rico determined that a number of individuals in its prison system had been unlawfully admitted into an electronic supervision program. Seeking to rectify the situation, Puerto Rico attempted to reincarcerate them. After one set of fourteen individuals had been reimprisoned, another set successfully brought a civil rights suit under 42 U.S.C. § 1983 in federal district court to enjoin Puerto Rico from taking any action against them. Their reimprisoned counterparts then filed a federal habeas petition on identical grounds, which the district court similarly granted. Puerto Rico appealed both the grant of the preliminary injunction and the grant of habeas relief, and we consolidated the two appeals.¹

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The questions presented are the same in each case: whether Puerto Rico's revocation of these individuals' participation in the electronic supervision program violated the Ex Post Facto Clause or the Due Process Clause of the Fourteenth Amendment.

I.

In 1989, faced with overcrowding within its prison system, the Puerto Rico Administration of Corrections (“AOC”) issued a memorandum proposing procedures for an Electronic Supervision Program (“ESP”). The ESP would permit eligible inmates to wear electronic tracking anklets and complete the remainder of their sentences outside of prison. Acting under the authority conferred in its enabling act, see P.R. Laws Ann. tit. 4, § 1101 et seq. , the AOC formalized the electronic supervision program in 1994 when it adopted Regulation No. 5065 (“the 1994 regulation”). The program's eligibility criteria provided that convictions for certain designated offenses would bar an inmate from participating in the ESP. Because murder was not included in the list of ineligible offenses, murder convicts were initially permitted to join the program.

That changed on May 26, 1995 with the Puerto Rico legislature's passage of Public Law 49 (“Law 49”), which amended the AOC's enabling act to preclude murder convicts from ever participating in transition or treatment and rehabilitation programs. P.R. Laws Ann. tit. 4, § 1136a. The AOC originally interpreted Law 49 to apply retroactively, blocking admission to the ESP for all individuals convicted of murder.² But a number of inmates who had been convicted of murders committed before Law 49's effective date separately filed suits in state courts challenging the application of the law to them.³ These courts determined that retroactive application would violate the Ex Post Facto Clause of the U.S. Constitution. The AOC did not appeal these rulings. Rather, in August 1996, it issued an internal agency memorandum instructing corrections personnel not to apply Law 49 to any inmate sentenced before the law's effective date. Under this new policy, a number of murder convicts who had committed their crimes prior to May 26, 1995, were admitted into the ESP.

In 1999, the AOC promulgated Regulation No. 6041 (“the 1999 regulation”). The 1999 regulation provided, among other things, that inmates must be within three years of release under their minimum sentence before they could become eligible for the ESP (“the three-years provision”). In addition, the regulation restated Law 49's prohibition on murder convicts participating in the ESP. Consistent with its position that Law 49 was non-retroactive, the AOC did not apply this section of the 1999 regulation to those who had been convicted before Law 49's effective date. It remains

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unclear whether the other sections of the 1999 regulation, such as the three-years provision, were also meant to be non-retroactive. Over the next few years, there was much confusion about and litigation over which regulation applied to whom and just how widely Law 49 should apply.

Meanwhile, independent of the wrangling over the scope of Law 49, the Commonwealth had begun to investigate allegations that certain inmates had acquired ESP privileges through bribery. It did not uncover any evidence supporting those allegations. Nevertheless, in the course of the investigations, it concluded that fourteen ⁴ participants in the ESP did not actually qualify for the program. Although the participants all happened to have been convicted of murder, that fact was entirely incidental to the Commonwealth's initial conclusion that they were ineligible. Instead, it reasoned that these participants did not meet the 1999 regulation's three-years provision, apparently without considering whether that provision applied to them in the first place. On April 6-7, 2005, these participants were arrested and reincarcerated without being told the justification. Following a pro forma administrative hearing in which they were unable to present any evidence on their own behalf, they petitioned for a writ of habeas corpus in the Court of First Instance of Puerto Rico, seeking release back into the ESP. These reimprisoned individuals, who would come to be known as the González-Fuentes petitioners, alleged violations of the Ex Post Facto Clause and of their right to due process. At this point, Puerto Rico abandoned its reliance on the three-years provision and-for the first time-advanced the petitioners' status as murder convicts as a basis for reimprisonment.

The then-current administration, recently installed following the gubernatorial elections, had now resolved that the Ex Post Facto Clause would not actually prevent the retroactive application of Law 49 to ESP participants who had been convicted before May 26, 1995. In its view, both the executive officials who had first litigated the issue and the lower courts which had adjudicated it had misinterpreted ex post facto doctrine. The battleground for this new position was the González-Fuentes petitioners' habeas proceedings. Though the Court of First Instance sided with the petitioners and granted them habeas corpus relief, the Puerto Rico Court of Appeals disagreed, revoking the writ. The petitioners then appealed to the Puerto Rico Supreme Court.

On August 26, 2005, before the Puerto Rico Supreme Court had ruled on the matter, Puerto Rico's Secretary of Justice announced the government's intention to reimprison all participants in the ESP who had been convicted of murder. It based its decision not on infractions of program rules, but rather on the new administration's conclusion that these program participants were all ineligible for the ESP under Law 49. That same day, a number of murder convicts participating in the ESP filed a complaint in federal district court under 42 U.S.C. § 1983 seeking a preliminary injunction to halt the revocation of ESP privileges. These participants, who came to be known as the Rivera-Feliciano plaintiffs, echoed the González-Fuentes petitioners' arguments that reimprisonment would violate the Ex Post Facto and Due Process Clauses.

The fates of these two sets of participants

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would soon become intertwined.⁵ In September 2005, the district court granted the Rivera-Feliciano plaintiffs' request for a preliminary injunction. After the Commonwealth appealed that decision to this court, we elected to stay all proceedings in the case pending the Puerto Rico Supreme Court's resolution of the González-Fuentes petitioners' habeas petition See Rivera-Feliciano v. Acevedo-Vila, 438 F.3d 50, 60-62 (1st Cir.2006).

In March 2006, the Puerto Rico Supreme Court denied the petition. It concluded that the nullification of ESP privileges posed no ex post facto problem because the petitioners committed their respective crimes before the program had even been created. The court also ruled that the nullification did not offend due process because the petitioners did not possess a protected liberty interest in remaining in the program. It reasoned that the plain terms of Law 49 had rendered the petitioners ineligible for the program, such that their admission into it was nothing more than “administrative error.” According to the court, the petitioners could not develop a protected interest in retaining a mistaken grant of liberty.

Following their loss in the Puerto Rico courts, the petitioners filed a subsequent habeas corpus petition in federal district court under 28 U.S.C. §§ 2241 and 2254. Again they alleged violations of the Ex Post Facto and Due Process Clauses. The district court then consolidated the González-Fuentes habeas case with the Rivera-Feliciano § 1983 case.

The Commonwealth filed a motion to dismiss the Rivera-Feliciano claims, which the district court denied. Unfazed,...