Waletzki v. Keohane

• Decision Date: 06 January 1994
• Docket Number: No. 93-1498,93-1498
• Citation: 13 F.3d 1079
• Parties: Daniel J. WALETZKI, Petitioner-Appellant, v. P.W. KEOHANE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1079

13 F.3d 1079

Daniel J. WALETZKI, Petitioner-Appellant, v. P.W. KEOHANE, Warden, Respondent-Appellee.

No. 93-1498.

United States Court of Appeals Seventh Circuit.

Submitted Sept. 30, 1993.

Decided Jan. 6, 1994.

Daniel J. Waletzki, petitioner-appellant, pro se.

Thomas E. Kieper, Asst. U.S. Atty., Office of the U.S. Atty., Indianapolis, IN, for respondent-appellee.

Before POSNER, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

POSNER, Chief Judge.

This is an appeal from the denial of habeas corpus to a federal prisoner, Daniel Waletzki. 28 U.S.C. Sec. 2241. A federal statute (since repealed, but applicable to the considerable number of prisoners who committed their offenses before November 1, 1987) allows a prison to award good-time credits, which reduce a prisoner's sentence, for meritorious performance of the job to which the prisoner is assigned. 18 U.S.C. Sec. 4162. Waletzki claims that he should have received such credits for his work in the food service department of his prison; he argues that the refusal to award them was arbitrary.

We must consider first whether habeas corpus is ever a proper remedy in such a case. At first glance it seems odd that a dispute over a claim for a form of compensation for prison labor should be the basis for seeking habeas corpus. But good-time credits reduce the length of imprisonment, and habeas corpus is available to challenge the duration as well as the fact of custody. Preiser v. Rodriguez, 411 U.S. 475, 490, 500, 93 S.Ct. 1827, 1836, 1841, 36 L.Ed.2d 439 (1973); Hanson v. Heckel, 791 F.2d 93 (7th Cir.1986) (per curiam). It is true that prisoners usually base such challenges on some defect in the conviction or sentence, not here alleged. But not always--in fact a prisoner who challenges his federal conviction or sentence cannot use the federal habeas corpus statute at all but instead must proceed under 28 U.S.C. Sec. 2255. But when he is attacking the fact or length of his confinement in a federal prison on the basis of something that happened after he was convicted and sentenced, habeas corpus is the right remedy. 2 James S. Liebman, Federal Habeas Corpus Practice and Procedure Sec. 36.2, p. 549 n. 7 (1988).

So habeas corpus is, or at least could be, a proper remedy for a denial of good-time credits. This would be clear beyond the possibility of doubt if 18 U.S.C. Sec. 4162 created an entitlement to good-time credits, for their denial would then be a deprivation of liberty within the meaning of the Fifth Amendment's due process clause and Waletzki would have a constitutional claim on which to base his application for habeas corpus. Superintendent v. Hill, 472 U.S. 445, 453-54, 105 S.Ct. 2768, 2772-73, 86 L.Ed.2d 356 (1985); Jackson v. Carlson, 707 F.2d 943, 947 (7th Cir.1983). But section 4162 (unlike section 4161, which awards good-time credits for good behavior, Jackson v. Carlson, supra) creates no entitlement. It places the decision whether to award good-time credits for job performance "in the discretion of the Attorney General," and it provides no criteria for the exercise of that discretion. The implementing regulation requires a staff recommendation as a precondition to such an award, and establishes no criteria for such a recommendation, either. 28 C.F.R. Sec. 523.11. The requirements for showing a deprivation of liberty thus are not met. Hornsby v. Miller, 725 F.2d 1132, 1135 (7th Cir.1984) (per curiam); Moss v. Clark, 886 F.2d 686, 692 (4th Cir.1989); Kalka v. Vasquez, 867 F.2d 546 (9th Cir.1989).

The possibility remains that the prison behaved arbitrarily in denying Waletzki good-time credits. He claims that identically situated prisoners have been awarded such credits, and at this stage in the proceeding there is no evidence to the contrary. It does not follow that he can obtain relief in a habeas corpus proceeding. Habeas corpus is an extraordinary remedy, and many decisions say that it is available only to correct errors of a fundamental character--jurisdictional or constitutional, or, where statutory, similar to constitutional defects or otherwise exceptional. Reed v. Clark, 984 F.2d 209 (7th Cir.1993), cert. granted, and cases cited there; Note, "Federal Habeas Corpus Review of Nonconstitutional Errors: The Cognizability of Violations of the Interstate Agreement on Detainers," 83 Colum.L.Rev. 975, 983-1004 (1983). This is a vague standard, id. at 989-1019, and as explained both in Reed and in the Columbia Law Review Note is motivated in large part by hostility to allowing collateral attacks on criminal judgments, a concern absent here because Waletzki is not mounting a collateral attack on his conviction or sentence. In a case such as this, as in many immigration and parole cases, habeas corpus is simply the vehicle--and the only vehicle--for obtaining judicial review of administrative action; why in such uses it should be confined to "fundamental" defects eludes us and seems inconsistent with the normal presumption that final administrative action is judicially reviewable. The presumption is not easy to rebut in a case in which a person's liberty is at stake. The cases that announce the "fundamental defects" standard involve collateral attacks on criminal judgments, and there is no indication in the opinions that the same standard is applicable to cases in which habeas corpus is not being used to mount a collateral attack on a judgment.

Of course remedies...