Hamm v. Latessa
| Decision Date | 04 April 1995 |
| Docket Number | 94-2018,Nos. 94-1999,s. 94-1999 |
| Citation | 72 F.3d 947 |
| Parties | Ralph C. HAMM, III, Petitioner, Appellant, v. Arthur LATESSA, Superintendent of MCI, et al., Respondents, Appellees. Ralph C. HAMM, III, Petitioner, Appellee, v. Arthur LATESSA, Superintendent of MCI, et al., Respondents, Appellants. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Daniel S. Tarlow, with whom John F. Tocci and Glovsky & Associates were on brief, for petitioner.
William J. Meade, Assistant Attorney General, with whom Scott Harshbarger, Attorney General, was on brief, for respondents.
Before SELYA, CYR and STAHL, Circuit Judges.
Petitioner Ralph C. Hamm, III, is currently serving two concurrent, parole-eligible life sentences in a Massachusetts state penitentiary. He faces an additional twenty-six to forty years in prison from and after the culmination of his life sentences. Hamm solicits a writ of habeas corpus, naming as respondents the superintendent of the state correctional facility where he is confined, the Commissioner of Correction, and the Parole Board (hereinafter collectively the respondent or the Commonwealth), and contending that a policy implemented by the Commonwealth after his incarceration delayed his eligibility for a parole hearing. In his estimation, the change in policy transgressed both due process and the ban on ex post facto laws. The district court rejected the latter claim but granted the writ on due process grounds and ordered, inter alia, a nunc pro tunc parole hearing.
The petitioner appeals from both the dismissal of his ex post facto claim and from the limited grant of relief. The Commonwealth cross-appeals from the due process ruling and the allowance of any relief. We hold that the Commonwealth's implementation of the challenged policy neither abridged the petitioner's rights under the Due Process Clause nor violated the Ex Post Facto Clause. Hence, we reverse the district court's order and dismiss the habeas application.
We divide the introductory section of our opinion into five segments.
These appeals have their genesis in events that occurred over a quarter-century ago. In 1969, following a bench trial, a Massachusetts court found the petitioner guilty of charges stemming from a brutal attack and robbery that occurred the previous year. A more complete account of the crimes, unnecessary here, is available in Commonwealth v. Hamm, 19 Mass.App. 72, 471 N.E.2d 416, 418-19 (1984) (Hamm I ). The trial court sentenced petitioner to two concurrent, parole-eligible terms of life imprisonment for his convictions on counts of armed robbery and assault with intent to rape, and to a series of consecutive sentences totalling sixty-eight to eighty years on the other counts of conviction (including mayhem and assault with intent to murder). These consecutive sentences were to be served "from and after" the life sentences. 1 The appeals court, in an unpublished rescript, reduced the from-and-after sentences to twenty-six to forty years but upheld the convictions and sentences in all other respects.
The Massachusetts statute governing the parole eligibility of convicts serving terms of life imprisonment provides (and substantially provided in 1968) that:
Every prisoner who is serving a sentence for life in a correctional institution of the commonwealth [with specified exceptions not relevant here] shall be eligible for parole, and the parole board shall, within sixty days before the expiration of fifteen years of such sentence, conduct a public hearing before the full membership.
....
After such hearing the parole board may, by a vote of a majority of its members, grant to such prisoner a parole permit to be at liberty upon such terms and conditions as it may prescribe for the unexpired term of his sentence. If such permit is not granted, the parole board shall, at least once in each ensuing three year period, consider carefully and thoroughly the merits of each such case....
Mass.Gen.L. ch. 127, Sec. 133A. Until 1977, the Commonwealth considered inmates who were not only serving life sentences but also facing the grim prospect of overhanging from-and-after sentences as coming within the purview of section 133A. Based on that interpretation of the statute, the Commonwealth granted such inmates parole hearings (for possible parole from their life sentences into their from-and-after sentences) once they had served close to fifteen years. Accordingly, after the state court sentenced Hamm, correctional officials advised him that the parole-eligibility date referable to his life sentences would be November 28, 1983. 2
In 1977, the Commonwealth recast its interpretation of section 133A. The impetus for change was the decision of the Massachusetts Supreme Judicial Court (SJC) in Henschel v. Commissioner of Correction, 368 Mass. 130, 330 N.E.2d 480 (Mass.1975). Henschel required the aggregation for parole-eligibility purposes of a prisoner's consecutive county house of correction and state institution sentences. See id. 330 N.E.2d at 483-85. The SJC advanced a thoughtful justification in support of aggregation:
To follow the defendant's [non-aggregation] approach would require the board to make a series of decisions granting parole from one sentence to the next rather than a single decision on the basis of one parole eligibility date for all sentences. The former procedure makes little sense since the decision to grant parole is to be based on whether the board believes the prisoner can live freely outside of prison without violating the law.
Id. 330 N.E.2d at 484. The Commonwealth found this rationale to be equally convincing in the context of making decisions to parole prisoners serving life sentences into overhanging from-and-after sentences. Consequently, it rethought its earlier interpretation of section 133A and revised its policies regarding parole eligibility for certain classes of inmates, including lifers who faced impending from-and-after sentences. Under the neoteric policy, such inmates were not regarded as falling under section 133A and would no longer receive parole hearings at the fifteen-year mark; instead, the parole-ineligible portion of the prisoner's life sentence (fifteen years) would be aggregated with the parole-ineligible portion of his from-and-after sentences to arrive at a "real" parole-eligibility date, that is to say, a single date at which a favorable parole decision would result in the prisoner's actual release from incarceration, not just his parole from one sentence into another. 3 While this paradigm was not compelled by the holding in Henschel (which did not specifically address the aggregation of life sentences with from-and-after sentences), the respondent determined that the new arrangement more faithfully mirrored the tenets undergirding Henschel.
In 1982--the year before Hamm would have received his initial section 133A hearing under the former policy--the Commonwealth applied the new policy to him and recalculated his parole-eligibility date. 4 The aggregation resulted in a single, "real" parole-eligibility date of November 2001. 5 Though this structural change obviated the need for the petitioner to obtain two parole permits to secure his release in 2001, he claims that it also impermissibly deprived him of an opportunity for release at an earlier date.
The petitioner's thesis runs along the following lines. Massachusetts law affords prisoners serving indeterminate terms of years various ways to reduce their sentences. These same options, Hamm claims, are not available to prisoners who are serving life sentences. Thus, if he had been paroled into his (indeterminate) from-and-after sentences in 1983, he could have availed himself of these opportunities and possibly could have gained his freedom earlier than 2001. Under the 1977 policy, however, he effectively remains on "life sentence status" during the full term of his immurement and, therefore, cannot take advantage of these early-release opportunities, which include:
(1) Establishing a "Wrap-up" Date. Once paroled into his from-and-after sentences, the petitioner would immediately acquire, subject to divestiture for misconduct, statutory good time under Mass.Gen.L. ch. 127, Sec. 129. This "good time" would be based on the top end of his indeterminate sentences (forty years) and would, the petitioner claims, amount to sixteen and one-half years. He could earn additional good-time credits (up to seven and one-half days per month) by participating in educational and vocational programs. 6 See Mass.Gen.L. ch. 127, Sec. 129D. Moreover, the sentencing court (both initially and on resentencing) gave the petitioner 210 days credit on his four from-and-after sentences for pre- sentence incarceration. Hamm theorizes that this credit applies separately to each of his four from-and-after sentences, yielding an aggregate credit of two years and four months for jail time.
We assume arguendo the accuracy of the petitioner's figures without independently verifying them. 7 These potential reductions, totalling twenty-three years and one month, would, if garnered, enable him to leave prison without undergoing a second parole hearing after serving just sixteen years and eleven months on his from-and-after sentences. 8 Hence, if the petitioner had been paroled into his from-and-after sentences in November of 1983, he might have established a wrap-up date in October 2000, thus bringing about his release more than a year earlier than his current aggregated parole-eligibility date.
(2) Early Parole. Once paroled into his from-and-after sentences, the petitioner could also reduce the parole-ineligibility period of these sentences, which otherwise would remain at seventeen years and four months. First, he asserts that he would be credited automatically...
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