Hawkins v. Freeman, No. 96-7539

CourtU.S. Court of Appeals — Fourth Circuit
Writing for the CourtBefore MURNAGHAN and ERVIN, Circuit Judges, and PHILLIPS; MURNAGHAN; PHILLIPS
Citation166 F.3d 267
PartiesIrving Houston HAWKINS, Petitioner-Appellant, v. Franklin FREEMAN, Secretary for the North Carolina Department of Correction; J.V. Turlington, Superintendent, Pender Correctional Institute, Respondents-Appellees.
Docket NumberNo. 96-7539
Decision Date26 March 1999

Page 267

166 F.3d 267
Irving Houston HAWKINS, Petitioner-Appellant,
v.
Franklin FREEMAN, Secretary for the North Carolina
Department of Correction; J.V. Turlington,
Superintendent, Pender Correctional
Institute, Respondents-Appellees.
No. 96-7539.
United States Court of Appeals,
Fourth Circuit.
Argued June 3, 1998.
Decided Jan. 20, 1999.
Rehearing En Banc Granted, Opinion Vacated March 26, 1999.

Page 268

ARGUED: Kelly M. Baldrate, Third Year Law Student, University of Virginia School of Law Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Clarence Joe DelForge, III, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. ON BRIEF: Neal L. Walters, James D. Jones, Third Year Law Student, University of Virginia School of Law Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Michael F. Easley, Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees.

Before MURNAGHAN and ERVIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Reversed and remanded with instructions to grant the petition by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge ERVIN joined. Senior Judge PHILLIPS wrote a dissenting opinion.

OPINION

MURNAGHAN, Circuit Judge:

In 1981, Irving Hawkins was sentenced to fifty years of imprisonment in North Carolina as a habitual felon. After receiving contradictory notifications about when he would be eligible for parole, he was finally paroled in 1992. Hawkins successfully reintegrated into the community, obeying all

Page 269

conditions of his parole, holding a job in which he was promoted, and reacquainting himself with his family. Then in 1994 he was rearrested on the basis that the determination that he was eligible for parole had been made in error.

Having exhausted his state appeals, Hawkins petitioned for habeas corpus relief. He argues primarily that his reincarceration violates the Fourteenth Amendment's guarantee of substantive due process. We hold that, where the parolee did not know that his release was in error, his interest in his continued liberty crystallized during the two years of successful parole and the Fourteenth Amendment requires that we strictly scrutinize the State's intentional infringement of that interest.

I.

The facts in this case are essentially agreed upon: the State does not contest Hawkins's "apparent good-conduct while released," and Hawkins concedes that, although he did not realize it at the time, he was statutorily ineligible when he was paroled. 1 We begin with a short review of how Hawkins came to be arrested, paroled and rearrested.

On February 27, 1981, Irving Hawkins was convicted in Guilford County, North Carolina, of possession, sale and delivery of one-half gram of cocaine. Hawkins was found to be a habitual felon and sentenced to fifty years of imprisonment on the sale and delivery charge and ten years concurrently on the possession charges (along with sixty days concurrently on a charge of driving under the influence). It must be admitted that Hawkins is not a sympathetic character. The habitual felon determination was based on evidence that Hawkins had as a young man been convicted of and imprisoned for one count of rape, two counts of aggravated assault with intent to commit rape and one count of armed robbery. See State v. Simmons, 56 N.C.App. 34, 286 S.E.2d 898, 900 (Ct.App.N.C.1982). His FBI record reveals other less serious charges as well, both as an adult and as a minor.

From the beginning of his incarceration as a habitual felon, Hawkins was given conflicting explanations of when he would be eligible for parole. The record suggests that, at first, he may have been told that he would be eligible for parole very shortly after his conviction. Then, on June 14, 1982, the Parole Commission informed Hawkins that he would not be eligible for parole until he had "served 30 years" of his sentence, giving him a parole eligibility date of "October 20, 2010." The Commission assured Hawkins it had "studied all the facts in your case, and we are sure that we are following the requirement of the law" in reaching this 2010 date. About a year later, on September 7, 1983, the Parole Commission changed its mind once again: "After carefully checking your parole eligibility date, we find that you will not be eligible for parole until April 20, 2018." Finally, on March 13, 1992, Hawkins was suddenly informed that he was being considered for community service parole. Assuring Hawkins that it had "made a careful investigation of this case," the Parole Commission paroled Hawkins on July 6, 1992.

Hawkins claims to have been completely rehabilitated during his eleven years of imprisonment. The magistrate judge who first heard this habeas petition found that Hawkins had a good prison record during those years and, while incarcerated, obtained a business degree from Shaw University through a study-release program. The magistrate judge further found that during Hawkins's nearly two years on parole he substantially complied with his parole obligations, held a steady job in which he was promoted,

Page 270

and reestablished ties with his family. Although there is some indication that Hawkins did not complete the community service that he was assigned, the Parole Commission reported that "Hawkins had no problems while on parole," and the State does not contest Hawkins's statement in his affidavit that during his release he "never violated [his] parole."

Then, on March 25, 1994, Hawkins was rearrested on the basis that he had not been eligible for parole in 1992. The Parole Commission concluded that the habitual felon statute under which Hawkins was sentenced, N.C. Gen.Stat. § 14-7.6, required that he serve 75% of his 50-year sentence (37.5 years) before he would be eligible for parole. Ironically, that statute had been repealed effective only four months after Hawkins's sentencing and replaced with a requirement that a habitual offender serve "not less than seven years." By letter of October 10, 1994, the Commission informed the reincarcerated Hawkins that his "current parole eligibility date" would be April 20, 2018.

Hawkins challenged his reincarceration on various grounds. Having effectively exhausted his claims in state court, 2 Hawkins on January 27, 1995, petitioned for habeas corpus relief. His claim therefore is subject to the pre-Antiterrorism and Effective Death Penalty Act standards. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). A magistrate judge recommended that such relief be denied, and the district judge agreed with that recommendation, granting summary judgment to the State. Hawkins appeals to us.

II.

We review the district court's grant of summary judgment to the State de novo. See Savino v. Murray, 82 F.3d 593, 598 (4th Cir.1996). Hawkins argues primarily that his reincarceration violated his substantive due process rights, and advances alternative theories of waiver, estoppel and the bar against installment sentences. He also argues that his parole revocation hearing did not contain all of the procedural protections he was due. Because we believe that the established principles of the substantive component of the Fourteenth Amendment's Due Process Clause govern the case, we begin with an exposition of those principles.

A.

The Due Process Clause of the Fourteenth Amendment guarantees that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. "Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least years, since Mugler v. Kansas, 123 U.S. 623, 660-661, 8 S.Ct. 273, 31 L.Ed. 205 (1887), the Clause has been understood to contain a substantive component as well, one 'barring certain government actions regardless of the fairness of the procedures used to implement them.' " Planned Parenthood v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Through the doctrine of substantive due process, "all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States." Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring), quoted in Planned Parenthood, 505 U.S. at 847, 112 S.Ct. 2791.

It is contested whether the asserted interest infringed by Hawkins's reincarceration is such a fundamental liberty right. The Supreme Court has "regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.' " Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772 (1997) (quoting Moore v. City of

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East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), (plurality opinion), Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and id. at 326, 58 S.Ct. 149) (citations omitted). Certain liberties enshrined in the Bill of Rights offer the clearest examples of those held to be "fundamental," but the category is not limited to this list, nor is it limited to "those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified." Planned Parenthood, 505 U.S. at 847, 112 S.Ct. 2791. Instead, the "full scope of the liberty guaranteed by the Due Process Clause" comprises "a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which...

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4 practice notes
  • Hawkins v. Freeman, No. 96-7539
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 9 Junio 1999
    ...that the State's action violated Hawkins's substantive due process right and ordering his release on the parole erroneously granted. 166 F.3d 267 (1999). On the State's suggestion, we vacated the panel opinion, reheard the appeal en banc, and now hold, affirming dismissal of the habeas acti......
  • Baker v. Barbo, No. 97-5687
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 13 Mayo 1999
    ...has some real interest in expecting a certain release date or in fact has been released and faces reincarceration. See Hawkins v. Freeman, 166 F.3d 267, 273-75 (4th Cir.1999); DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir.1993); Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.1978). In Breest, the......
  • Henderson v. Simms, No. Civ. S 99-949.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 14 Mayo 1999
    ...erroneously released parolee to remain on release, recently recognized by a panel opinion of the Fourth Circuit, viz., Hawkins v. Freeman, 166 F.3d 267 (4th Cir.1999). The panel decision in Hawkins has been vacated, see 1999 WL 173607 (4th Cir. Mar.26, 1999), and, of course, since it predat......
  • Kerr v. State, No. 25295.
    • United States
    • United States State Supreme Court of South Carolina
    • 29 Mayo 2001
    ...due process rights had been violated. The PCR court wholly relied on a federal case with strikingly similar facts. See Hawkins v. Freeman, 166 F.3d 267 (4th Cir.1999) (Hawkins I). However, the Hawkins I decision, handed down in January 1999, was subsequently vacated. In November 1999, on re......
4 cases
  • Hawkins v. Freeman, No. 96-7539
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 9 Junio 1999
    ...that the State's action violated Hawkins's substantive due process right and ordering his release on the parole erroneously granted. 166 F.3d 267 (1999). On the State's suggestion, we vacated the panel opinion, reheard the appeal en banc, and now hold, affirming dismissal of the habeas acti......
  • Baker v. Barbo, No. 97-5687
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 13 Mayo 1999
    ...has some real interest in expecting a certain release date or in fact has been released and faces reincarceration. See Hawkins v. Freeman, 166 F.3d 267, 273-75 (4th Cir.1999); DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir.1993); Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.1978). In Breest, the......
  • Henderson v. Simms, No. Civ. S 99-949.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 14 Mayo 1999
    ...erroneously released parolee to remain on release, recently recognized by a panel opinion of the Fourth Circuit, viz., Hawkins v. Freeman, 166 F.3d 267 (4th Cir.1999). The panel decision in Hawkins has been vacated, see 1999 WL 173607 (4th Cir. Mar.26, 1999), and, of course, since it predat......
  • Kerr v. State, No. 25295.
    • United States
    • United States State Supreme Court of South Carolina
    • 29 Mayo 2001
    ...due process rights had been violated. The PCR court wholly relied on a federal case with strikingly similar facts. See Hawkins v. Freeman, 166 F.3d 267 (4th Cir.1999) (Hawkins I). However, the Hawkins I decision, handed down in January 1999, was subsequently vacated. In November 1999, on re......

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