Lemieux v. Kerby, No. 90-2253
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before McKAY, SEYMOUR, and EBEL; EBEL |
| Citation | 931 F.2d 1391 |
| Parties | Paul LEMIEUX, Petitioner-Appellant, v. Dareld KERBY, Respondent-Appellee. |
| Docket Number | No. 90-2253 |
| Decision Date | 26 April 1991 |
Page 1391
v.
Dareld KERBY, Respondent-Appellee.
Tenth Circuit.
Page 1392
Paul Lemieux, pro se.
Tom Udall, Atty. Gen. of New Mexico, Katherine Zinn, Asst. Atty. Gen., Santa Fe, N.M., for respondent-appellee.
Before McKAY, SEYMOUR, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
We grant the appellant's application for certificate of probable cause.
The appellant, Paul Lemieux, appeals from the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas petition. Lemieux raises one issue for this court to consider: 1 whether a New Mexico sentencing statute that authorizes a sentence reduction (credit) for post-sentencing "good time" served but does not authorize credit for pre-sentencing "good time" served is unconstitutional. The United States District Court for the District of New Mexico denied Lemieux's petition. We affirm.
On March 28, 1988, Lemieux was convicted for the offense of Criminal Sexual Penetration in the Second Degree in New Mexico State Court. The New Mexico court set Lemieux's sentence at eight years. The state court credited Lemieux with 314 days for time spent in county jail prior to his incarceration in the New Mexico State Prison system. Lemieux claims that he is entitled to an additional 104 days "good time" credit stemming from the time he spent in the county jail. Under New Mexico law, "good time" credit cannot be earned during time served in county jail prior to incarceration in the state prison stemming from a felony conviction. See State v. Aqui, 104 N.M. 345, 721 P.2d 771, 775 (1986), cert. denied, 479 U.S. 917, 107 S.Ct. 321, 93 L.Ed.2d 294 (1986). Instead, "good time" credit can only be earned once the prisoner is placed in state prison following his felony conviction. Id.
Lemieux notes that if he had posted bail, his entire eight year term would have been served at the state prison, and that under N.M.Stat.Ann. Sec. 33-2-34(A), he would have been eligible to earn "good time" credit during the entire eight years. However, because he was unable to make bail, Lemieux served 314 days of his eight year sentence in county jail prior to his conviction and incarceration in the state prison. 2 Thus, because he will have served part of his eight year sentence in county jail, the actual time he will serve may be longer than the actual time he would have served had he been able to make bail. Because indigent defendants generally are unable to make bail and, thus, commonly serve part of their sentence in county jail, Lemieux complains that the New Mexico sentencing scheme unconstitutionally penalizes indigent prisoners.
Lemieux petitioned unsuccessfully for state habeas relief. Upon exhausting his state remedies, he petitioned for federal habeas relief to the United States District Court for the District of New Mexico. His request was denied. Lemieux then lodged this appeal.
Lemieux claims that the New Mexico sentencing scheme violates the Equal Protection
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Clause as well as the Due Process Clause of the Constitution. The New Mexico Supreme Court has rejected this very argument. State v. Aqui, 721 P.2d at 777. 3 The New Mexico Supreme Court relied heavily on McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). In McGinnis, the Supreme Court upheld the constitutionality of a similar...To continue reading
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Walker v. O'Brien, Nos. 96-4010
...good-time credits needed certificates of probable cause. See, e.g., Crowell v. Walsh, 151 F.3d 1050 (D.C. Cir. 1998); Lemieux v. Kirby, 931 F.2d 1391 (10th Cir. 1991). All of the Justices who wrote or joined opinions in Davis v. Jacobs, 454 U.S. 911 (1981), assumed that this is so. And the ......
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McNeil v. Commissioner of Correction
...considered good time statutes with rehabilitative, rather then disciplinary, purposes. See McGinnis v. Royster, supra; Lemieux v. Kerby, 931 F.2d 1391, 1394 (10th Cir.1991) ("We are satisfied that [the good time statute at issue] serves a rational purpose of rehabilitating criminals ..."); ......
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State v. Morrow, No. C7-92-1295
...the result in Bearden would have been identical whether analyzed under the Due Process or Equal Protection Clause. See Lemieux v. Kerby, 931 F.2d 1391, 1393 n. 4 (10th Cir.1991). We, too, reach a result under an equal protection analysis that is identical to the result reached under due pro......
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MacPheat v. Mahoney, No. 00-006.
...issue against the same sort of equal protection challenge that MacPheat raises in the case at bar. See Lemieux v. Kerby (10th Cir.1991) 931 F.2d 1391; Chestnut v. Magnusson (1st Cir.1991) 942 F.2d 820. Indeed, Lemieux specifically rejected an argument that Bearden overruled McGinnis. Lemieu......
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Walker v. O'Brien, Nos. 96-4010
...good-time credits needed certificates of probable cause. See, e.g., Crowell v. Walsh, 151 F.3d 1050 (D.C. Cir. 1998); Lemieux v. Kirby, 931 F.2d 1391 (10th Cir. 1991). All of the Justices who wrote or joined opinions in Davis v. Jacobs, 454 U.S. 911 (1981), assumed that this is so. And the ......
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McNeil v. Commissioner of Correction
...considered good time statutes with rehabilitative, rather then disciplinary, purposes. See McGinnis v. Royster, supra; Lemieux v. Kerby, 931 F.2d 1391, 1394 (10th Cir.1991) ("We are satisfied that [the good time statute at issue] serves a rational purpose of rehabilitating criminals ..."); ......
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State v. Morrow, No. C7-92-1295
...the result in Bearden would have been identical whether analyzed under the Due Process or Equal Protection Clause. See Lemieux v. Kerby, 931 F.2d 1391, 1393 n. 4 (10th Cir.1991). We, too, reach a result under an equal protection analysis that is identical to the result reached under due pro......
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MacPheat v. Mahoney, No. 00-006.
...issue against the same sort of equal protection challenge that MacPheat raises in the case at bar. See Lemieux v. Kerby (10th Cir.1991) 931 F.2d 1391; Chestnut v. Magnusson (1st Cir.1991) 942 F.2d 820. Indeed, Lemieux specifically rejected an argument that Bearden overruled McGinnis. Lemieu......