Littlefield v. Caton, 88-1260

• Decision Date: 26 July 1988
• Docket Number: No. 88-1260,88-1260
• Citation: 856 F.2d 344
• Parties: Theodore LITTLEFIELD, Petitioner, Appellant, v. Mark C. CATON, etc., et al., Respondents, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 344

856 F.2d 344

Theodore LITTLEFIELD, Petitioner, Appellant, v. Mark C. CATON, etc., et al., Respondents, Appellees.

No. 88-1260.

United States Court of Appeals, First Circuit.

Heard July 26, 1988.

Decided Sept. 1, 1988.

Michael L. Parker with whom Murray, Plumb & Murray, Portland, Me., was on brief, for petitioner, appellant.

Peter J. Brann, Asst. Atty. Gen., with whom James E. Tierney, Atty. Gen., and Thomas D. Warren, Deputy Atty. Gen., Augusta, Me., were on brief, for respondents, appellees.

Before BOWNES, NOONAN, ^* and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This appeal involves a four-dimensional interface between (1) the legislative branch of Maine's government, which over time enacted the series of statutes reproduced in the appendix; (2) the judicial branch, particularly the Maine Supreme Judicial Court (SJC), which declared certain of those statutes unconstitutional as applied; (3) the executive branch, in the persons of Maine's governor, attorney general and the ranking administrators of the state's penal system (including respondent Mark C. Caton, appellee herein); and (4) petitioner-appellant Theodore Littlefield, an inmate confined at Maine's state prison. We begin by summarizing the circumstances. ¹

I.

In January 1976, following his guilty plea to a charged crime of violence, Littlefield was sentenced to a lengthy prison term. Under existing law, he was then eligible to receive both basic good-time (BGT) credits at the rate of 7 days per month and extra-meritorious good-time (EMGT) credits, not to exceed 2 days/month. Under prevailing state practice, Littlefield's BGT credits were allotted to him when he began serving his sentence (subject to forfeiture, of course, for disciplinary infractions or other misconduct). Effective May 1, 1976, the state legislature increased BGT, awardable in advance, to 10 days/month. In 1983, it raised allowable EMGT credits to 3 days/month. Persons previously sentenced, including petitioner, were accorded the benefit of these laws. Littlefield's good time was refigured retrospectively, and consequently, his expected parole eligibility and discharge dates were accelerated.

In 1985, the SJC rearranged the legal landscape. In Bossie v. State, 488 A.2d 477 (Me.1985), the court held that the 1983 amendments contravened the state constitution. Insofar as the statute applied to previously-sentenced prisoners (like Littlefield), it reduced existing sentences and thus impermissibly "interfere[d] with the executive's explicit and exclusive grant of the commutation power [under] Me. Const. art. III, Sec. 2." Id. at 480. Relying principally on Bossie, state correctional officials determined that the 1976 amendments (which, like those enacted in 1983, purported retroactively to increase up-front good time) were similarly deficient, ² and revoked the "extra" BGT and EMGT credits which petitioner had garnered under the 1976 and 1983 laws. This turn of events left Littlefield with exactly the good time afforded by the statutes in force when he was sentenced and first immured--no more, no less.

Petitioner contended that the original bestowal of good time to one in his circumstances, although done in pursuance of enactments subsequently declared invalid, could not lawfully be reversed. After exhausting state remedies, he applied for federal habeas review. 28 U.S.C. Secs. 2241-54 (1982). The district court found his rights under the federal Constitution to be unsullied. Littlefield v. Caton, 679 F.Supp. at 92-95. We agree.

II.

This case falls within the zone of influence of our earlier decision in Lerner v. Gill, 751 F.2d 450 (1st Cir.), cert. denied, 472 U.S. 1010, 105 S.Ct. 2709, 86 L.Ed.2d 724 (1985). Lerner, a Rhode Island state prisoner, was advised in August 1976 that he would be parole-eligible in August 1979, after serving 10 years of his sentence. Id. at 452-53. As the date approached, he was transferred to a minimum security facility and various other status adjustments were effectuated. Id. at 453. It turned out, however, that the predicted parole eligibility date, established in reliance on the state attorney general's interpretation of the governing statute, was wildly inaccurate. After the attorney general's erroneous interpretation had been disavowed by his successor and rejected by the state supreme court, Lerner was retransferred to maximum security and a new parole eligibility date, some 10 years in the future, was set. Id. We refused to order habeas relief, observing:

It is a fact of life, unlikely soon to be altered, that new laws are often not challenged and finally interpreted until a number of years go by.... The question of when [Lerner] would be eligible for parole was a novel question, and the various officials and courts cannot be blamed for not being of one mind on the matter.... We would be most reluctant to hold that the due process clause of the Constitution took away from the State of Rhode Island the power to consider and apply its laws correctly in this situation.

Id. at 459. Accord Glenn v. Johnson, 761 F.2d 192, 194-95 (4th Cir.1985) (citing Lerner ). Cf. Mileham v. Simmons, 588 F.2d 1279, 1280 (9th Cir.1979) (Ex post facto clause does not give inmate "a vested right in ... an erroneous interpretation" of statute affecting parole eligibility).

So here. When the amendments to the Maine statutes were put to the acid test, they were determined, as a matter of state law, to be unavailable to previously-sentenced felons. Though discomfiting, this adjudication left Littlefield, like Lerner, in precisely the same position as when he was convicted. The fact that both the legislature and the state's penal officials tried to give him greater rewards for good time did not "t[ake] away from the State ... the power to consider and apply its laws correctly in this situation." Lerner, 751 F.2d at 459.

Lerner controls--and we see no reason to shrink from it. To be sure, Littlefield argues that his case is dissimilar in several material respects--but the claimed distinctions do not seem to make any meaningful difference. It is unnecessary to paint the lily overmuch, for the district court addressed petitioner's major premises in a thoughtful and convincing fashion. See Littlefield v. Caton, 679 F.Supp. at 92-95. We affirm, therefore, substantially on the basis of the opinion below. We do, however, add a few words concerning Littlefield's ostensible BGT entitlement. ³

A.

Quoting Brown v. Lundgren, 528 F.2d 1050, 1052-53 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976), petitioner urges that, "[a]t the constitutional level, there is a clear distinction between the loss of a statutory privilege once obtained and the denial of that same privilege, never given." This asseveration In the instant case, the distinction is of no consequence. The district court held that petitioner had a constitutionally-protected liberty interest in the good time which had been awarded to him. Littlefield v. Caton, 679 F.Supp. at 92. The fact that the district court also held--correctly, we think--that no due process violation was perpetrated, id. at 91-94, does not vitiate the conclusion that petitioner received the full benefit of the Brown dichotomy.

                however, must be taken in its appropriate context.  The distinction--with which we agree--was set out by the Fifth Circuit not as a means of determining the merits of a constitutional controversy, but merely as a step in ascertaining the existence vel non of a constitutionally-protected "liberty or property interest."    Id. at 1053.  The Brown court held that denial of a privilege did not engage the Due Process Clause, although revocation of the same privilege, once bestowed, would likely have done so.  Id.
                

B.

Petitioner strives mightily to persuade us, based on Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973), that the constitutional criteria for retroactive application of judicial decisions were trammeled in this case. The argument, however, is doubly flawed.

In the first place, the Lemon Court grappled with the question of when a court should accord retroactive effect to its own holding. E.g., id. 411 U.S. at 197, 93 S.Ct. at 1467 (opinion of Burger, C.J.). Here, the situation is appreciably different: the choice is not ours to make, for the Maine SJC has already made it. See Chestnut, 524 A.2d at 1220-21 (approving retroactive revocation of like good-time credits). It is settled beyond peradventure that:

A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.

Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932) (Cardozo, J.). To the extent (if at all) that federal constitutional interests pertain to the state's choice, the SJC's decision in favor of retroactivity has a sufficiently rational basis to pass muster. Without serious question, backtracking--though it resulted in the revocation of appellant's excess good time--furthered Maine's stalwart interest in confining the commutation power to the executive branch as mandated by the state constitution. See Chestnut, 524 A.2d at 1219-20; see also Me. Const., art. III, Secs. 1-2 ("The powers of this government shall be divided into three distinct departments, the legislative, executive and judicial.... No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others...."). Separation-of-powers concerns are clearly of enough import to underbrace the retroactive judicial mandate at issue here; "[w]ithout a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours." Morrison v. Olson, --- U.S. ----, 108 S.Ct. 2597, 2622, 101 L.Ed.2d 569 (1...