Graham v. Broglin

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before CUDAHY, POSNER, and RIPPLE; POSNER
• Citation: Graham v. Broglin, 922 F.2d 379 (7th Cir. 1991)
• Decision Date: 07 January 1991
• Docket Number: No. 89-3201,89-3201
• Parties: Gene Vontell GRAHAM, Plaintiff-Appellant, v. G. Michael BROGLIN, Defendant-Appellee.

Page 379

922 F.2d 379

Gene Vontell GRAHAM, Plaintiff-Appellant, v. G. Michael BROGLIN, Defendant-Appellee.

No. 89-3201.

United States Court of Appeals Seventh Circuit.

Submitted Sept. 27, 1990.

Decided Jan. 7, 1991.

Gene V. Graham, Westville, Ind., pro se.

Kimberlie A. Forgey, Deputy Atty. Gen., Indianapolis, Ind., for defendant-appellee.

Before CUDAHY, POSNER, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

We write to clarify the relation between an action for habeas corpus (28 U.S.C. Sec. 2254) and a civil rights action (42 U.S.C. Sec. 1983) as vehicles by which state prisoners can challenge their confinement on federal constitutional grounds. After violating parole, Gene Graham was returned to an Indiana state prison to complete his sentence for robbery. He applied for work release but his application was denied because of a rule of the state parole authorities to the effect that a person who is imprisoned solely because he violated parole is ineligible for work release. Graham brought this habeas corpus action to challenge the rule as a denial of equal protection of the laws. The district judge dismissed the action on the alternative grounds that habeas corpus was the wrong vehicle for Graham's claim and that the claim lacked merit.

If a prisoner seeks by his suit to shorten the term of his imprisonment, he is challenging the state's custody over him and must therefore proceed under the habeas corpus statute with its requirement of exhausting state remedies, while if he is challenging merely the conditions of his confinement his proper remedy is under civil rights law, which (with an inapplicable exception) does not require exhaustion. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Miller v. McCollum, 695 F.2d 1044, 1046 (7th Cir.1983). The difficult intermediate case is where the prisoner is seeking not earlier freedom, but transfer from a more to a less restrictive form of custody. We know that if a prisoner claims to be entitled to probation or bond or parole, his proper route is habeas corpus, even though he is seeking something less than complete freedom. Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989); Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963); Vargas v. Swan, 854 F.2d 1028, 1030 (7th Cir.1988). What if, as here, he is seeking work release, which involves less confinement than ordinary imprisonment because, as the term implies, it allows him to be outside the prison during working hours? Or what if he were seeking to be confined in his home rather than in a prison?

In a series of cases that are the most like this case of any we have been able to find, the Third Circuit has held that a claim to be entitled to home furlough is a civil rights claim, not a habeas corpus claim, because if successful it would merely change the location where the prisoner's sentence is to be served. Wright v. Cuyler, 624 F.2d 455, 458 (3d Cir.1980); Jamieson v. Robinson, 641 F.2d 138, 141 (3d Cir.1981); Georgevich v. Strauss, 772 F.2d 1078, 1086-87 (3d Cir.1985) (en banc) (dictum). "Merely" is an overstatement; home is a less restrictive place in which to serve one's sentence as well as a different one. Brennan v. Cunningham, 813 F.2d 1, 4-5 (1st Cir.1987), without citing the Third Circuit's cases, reached a contrary conclusion in a case involving work release, but the case is readily distinguishable because successful completion of the work release program, which was specifically designed to test the prisoner's ability to function outside prison, would have resulted in the prisoner's being paroled--so in effect he was challenging the length of his confinement. Finally, we held in McCollum that a prisoner can use habeas corpus to get out of disciplinary segregation and into the regular prison environment, which is "freer" but of course still custodial. Yet the length of his prison term is not affected.

The cases suggest the following generalization. If the prisoner is seeking what can fairly be described as a quantum change in the level of custody--whether outright freedom, or freedom...