Warnick v. Booher

• Decision Date: 22 September 2005
• Docket Number: No. 02-5201.,02-5201.
• Parties: Anthony H. WARNICK, Petitioner-Appellant, v. Glynn BOOHER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 842

425 F.3d 842

Anthony H. WARNICK, Petitioner-Appellant, v. Glynn BOOHER, Warden, Respondent-Appellee.

No. 02-5201.

United States Court of Appeals, Tenth Circuit.

September 22, 2005.

Philip J. Weiser, University of Colorado School of Law, Boulder, CO, for the Petitioner-Appellant.

William R. Holmes, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before SEYMOUR, Circuit Judge, PORFILIO, Senior Circuit Judge, and HARTZ, Circuit Judge.

HARTZ, Circuit Judge.

Anthony Warnick appeals the district court's denial of his application for habeas corpus relief under 28 U.S.C. § 2241.

While serving the second of two consecutive sentences, Mr. Warnick requested a review of his first sentence. He thought that the state had improperly subtracted 155 good-time credits—which, by statute, substitute for one day of imprisonment each. Oklahoma prison authorities initially rejected Mr. Warnick's challenge. But while this case was pending in district court, an Oklahoma Court of Criminal Appeals decision involving another prisoner made clear that the 155-credit subtraction was unlawful. The prison accordingly audited Mr. Warnick's sentence and restored the 155 credits. It did not give Mr. Warnick the full relief he sought, however, because during the audit it discovered an unrelated arithmetical error and subtracted 53 credits.

Mr. Warnick contends that the 155-credit subtraction and the 53-credit offset were unconstitutional on various grounds. His challenges to the 155-credit subtraction are moot because the prison has corrected the error. Accordingly, we vacate the district court's ruling on the 155 credits and remand for the district court to dismiss its judgment on the issue for lack of jurisdiction. That leaves for consideration Mr. Warnick's double-jeopardy challenge to the 53-credit offset. The district court, however, has not addressed this issue. Because the question of the offset's constitutionality should be decided by the district court in the first instance, we remand for further proceedings.

I. PRELIMINARIES

A. State Proceedings

On February 24, 1989, an Oklahoma state court sentenced Mr. Warnick to 10 years' imprisonment for lewd molestation. He was eventually released. On March 20, 1996, however, he was convicted on new charges of lewd molestation and sexual abuse of a minor, again in Oklahoma state court. He was sentenced to 20 years' imprisonment for each of these offenses, to be served concurrently. Additionally, his probation was revoked and he was ordered to serve six years' further imprisonment on his 1989 conviction. The six-year term was to be served before the 20-year sentences.

In Oklahoma, as in many other states, an inmate can earn good-time credits that reduce the duration of a sentence at the rate of one day per credit. Okla. Stat. tit. 57, § 138(A). The number of credits that an inmate earns each month is determined by his "class level"—for example, at class-level one, the inmate earns no credits; at level two, 22 credits; at level three, 33 credits; and at level four, 44 credits. Id. § 138(B) & (D) An inmate's class level depends on how long he has been confined, his participation in employment or other programs, and his general behavior. Id. § 138(D).

On February 1, 1997, Mr. Warnick was assigned to class-level four. He was then participating in the prison's sex-offender treatment program and held a job at its furniture factory. On June 1, however, Mr. Warnick was reassigned to class-level three, evidently because of his removal from the treatment program. On July 10, 1997, he was transferred to a different facility, consequently losing his furniture-factory job. On April 1, 1998, Mr. Warnick began as a "Vo-Tech student" and was returned to class-level four. Based on his days of confinement and the credits that he had earned, his "rebill date"—the date on which his first sentence ended and his two concurrent sentences began—was June 28, 1998. That date was duly entered on Mr. Warnick's consolidated time card for the six-year sentence, and a new card was started for his concurrent 20-year sentences.

What happened next is not clear from the record. A July 25, 2000, audit apparently revealed that Mr. Warnick should have been placed in class-level one when he lost his furniture-factory job. Instead, he was allowed to remain at class-level three, thereby earning credits to which he was not entitled. According to the audit memo, his sentence needed to be corrected by removing 75 credits and changing his rebill date from June 28 to August 18, 1998. But in his November 1, 2004, brief on appeal, Mr. Warnick states that the July 25 audit resulted in the removal of 155 credits. And an affidavit by a sentence-administration-unit employee explains that the July audit resulted in the removal of 155 credits and that this adjustment changed Mr. Warnick's rebill date from June 28 to August 18, 1998. Not only does the audit memo disagree with the brief and affidavit on the number of credits that were removed, but also neither figure matches the 52-day difference between June 28 and August 18, 1998, as one would expect, given that each credit substitutes for one day of confinement under § 138(A).

In any event, on July 28, 2000, Mr. Warnick filed a "request to staff"—the first stage in the prison grievance process—asking to be told "how time can be taken from me from a case I have already discharged." R. doc. 1 ex. N. On August 1 he was informed in writing by a prison staff member: "I was told that if days were given and you were not actually eligible to earn them[,] [an auditor] can take the days—even on a discharged case." Id. On August 9 he filed a formal grievance; prison officials denied relief again, for the same reason. On August 21 he appealed and on August 23 his appeal was returned on a form with a check mark on a line beside "no grounds for appeal." R. doc. 1 ex. Q.

B. Federal Court Proceedings

On January 2, 2001, Mr. Warnick filed an application for habeas corpus relief against Warden Glynn Booher under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Oklahoma. He contended that the postponement of his rebill date violated due-process, equal-protection, double-jeopardy, cruel-and-unusual-punishment, and ex post facto principles. The district court had jurisdiction to entertain a request for habeas corpus relief that would affect the duration of Mr. Warnick's confinement even though his success would not have resulted in his immediate release. See Wilkinson v. Dotson, ___ U.S. ___, 125 S.Ct. 1242, 1247-48, 161 L.Ed.2d 253 (2005). On January 8, 2001, the case was transferred to the United States District Court for the Northern District of Oklahoma, the district within which Mr. Warnick had been convicted. On January 30 the district court recharacterized Mr. Warnick's application as one under § 2241 rather than § 2254 and directed that the Warden either respond or move to dismiss. Venue remained proper in the Northern District of Oklahoma notwithstanding the application's recharacterization. See 28 U.S.C. § 2241(d).¹

On March 22 the Warden moved to dismiss for failure to exhaust state remedies. He claimed that Mr. Warnick could seek mandamus in Oklahoma state court. Mr. Warnick opposed the motion to dismiss. He also noted that a further audit had taken place on February 12, resulting in the revocation of an additional 968 credits from the concurrent 20-year sentences for failure to participate in the sex-offender treatment program. On February 26, 2002, the district court denied the Warden's motion to dismiss, agreeing with Mr. Warnick that no state-court remedy was available.

In May 2002, as a result of an Oklahoma Court of Criminal Appeals decision holding that mandatory participation in the sex-offender treatment program is unconstitutional, the prison again audited Mr. Warnick's sentence and returned the 155 credits originally subtracted and the 968 that were subtracted on February 12. But the same audit revealed an unrelated 53-credit calculation error: in April 1996, instead of subtracting 53 credits, prison staff subtracted 106 credits from Mr. Warnick's sentence. The prison corrected this error as well, resulting in a net adjustment of 968 credits on the 20-year sentences and 155 offset by 53, or 102, credits on the six-year sentence. Mr. Warnick's rebill date became July 15, 1998, again by calculations that we do not understand and that do not seem to follow the one-credit-equals-one-day rule. (Indeed, the Warden refers to the 53 credits in one brief as "the 53 day correction," Aplee. Br. (April 9, 2004) at 5, and in another as "the 17 days of earned credits," Aplee. Br. (December 3, 2004) at 2-3.) As a result of this audit, the only credit subtraction currently in dispute is the 53-day calculation-error offset.

On November 15, 2002, the district court denied Mr. Warnick's application for habeas corpus relief. But it addressed only the original 155-day subtraction, not the later 53-day offset. (Apparently, neither party had advised the court of the most recent adjustments.) The court held that there was no factual or legal basis for his equal-protection claim, the offset did not violate double-jeopardy principles because it did not result in confinement beyond the original sentence, there was no merit to his claim that "undue mental anguish and stress" resulting from the correction constituted cruel and unusual punishment, any change in the prison regulations did not disadvantage Mr. Warnick in violation of ex post facto principles, and the Due Process Clause did not entitle him to any procedural protection with respect to the subtraction of erroneously awarded credits because his interest in such credits was not a liberty interest.

On November 21, 2002, Mr. Warnick filed a notice of appeal to our court.

C. Certificate of Appealability

"Unless a...