MONTGOMERY, JERRY v. ANDERSON, RONDLE
In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2869
Jerry Montgomery,
Petitioner-Appellant,
v.
Rondle Anderson, Warden, Indiana State
Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:00-CV-131 AS--Allen Sharp, Judge.
Submitted July 25, 2001--Decided August 13, 2001
Before Flaum, Chief Judge, and Easterbrook
and Kanne, Circuit Judges.
Easterbrook, Circuit Judge. Jerry
Montgomery, who is serving a 40-year term
for murder, contends in this action under
28 U.S.C. sec.2254 that Indiana violated
the due process clause of the fourteenth
amendment when it placed him in
disciplinary segregation and reduced his
credit-earning class. The district court
denied his petition, and this appeal
presents a series of questions: (1) is a
collateral attack under sec.2254 the
right way to present a claim of
constitutional error in a decision
affecting the rate of earning good-time
credits?; (2) does a lower rate of
earning good-time credits deprive a
prisoner of "liberty" or "property"
within the meaning of the Constitution?;
and, if we give affirmative answers to
these questions, (3) did Indiana afford
Montgomery all the process due him?
Section 2254 authorizes federal courts
to grant collateral relief to state
prisoners "in custody in violation of the
Constitution or laws or treaties of the
United States." Montgomery is in
Indiana's custody, and the length of that
custody depends on a resolution of his
complaint about the award of credits. See
Lackawanna County District Attorney v.
Coss, 121 S. Ct. 1567, 1572-73 (2001). If
the state had deprived him of good-time
credits already earned, then sec.2254
would provide the exclusive avenue for
seeking federal relief. See Walker v.
O'Brien, 216 F.3d 626 (7th Cir. 2000). A
reduction in the rate of earning good-
time credits should be treated
identically. The stakes are the same: the
length of incarceration. Montgomery was
demoted from Class I (one day's good-time
credit for each day served) to Class II
(one day's credit for each two days
served). See I.C. sec.35-50-6-3(a), (b).
This difference, applied from the start
of a 40-year term, increases confinement
by almost 7 years. (A prisoner sentenced
to 40 years and in Class I throughout
would be released after 20 years; the
same prisoner in Class II would be
released after 26 years and 8 months.)
Any decision that determines the fact or
duration of state custody may (and
usually must) be challenged under
sec.2254 rather than 42 U.S.C. sec.1983.
See, e.g., Preiser v. Rodriguez, 411 U.S.
475 (1973); Edwards v. Balisok, 520 U.S.
641 (1997); Moran v. Sondalle, 218 F.3d
647 (7th Cir. 2000).
But only the change in credit-earning
class may be challenged under sec.2254.
Disciplinary segregation affects the
severity rather than duration of custody.
More-restrictive custody must be
challenged under sec.1983, in the
uncommon circumstances when it can be
challenged at all. See Sandin v. Conner,
515 U.S. 472 (1995); Meachum v. Fano, 427
U.S. 215 (1976). Montgomery cannot use
sec.1983 to contest his segregation, for
three reasons. First, the decision of a
prison disciplinary board may not lead to
an award of damages if it is open to
contest under sec.2254 yet remains in
force. That's the holding of Edwards, an
application of Heck v. Humphrey, 512 U.S.
477 (1994). Cf. DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000). Montgomery can
achieve review of the board's decision by
concentrating on his credit-earning
class, so Edwards blocks use of sec.1983
unless Montgomery prevails in the
sec.2254 proceedings. Second, Montgomery
has been barred from filing any sec.1983
litigation as a result of his failure to
pay sanctions imposed for his history of
vexatious civil litigation. See Support
Systems International, Inc. v. Mack, 45
F.3d 185 (7th Cir. 1995). The preclusion
order has an exception for proceedings
under sec.2254 but forecloses other civil
actions until the sanctions have been
paid. Third, as Sandin holds, a prisoner
has neither a "liberty" nor a "property"
interest in remaining in a prison's
general population, so Montgomery has
nothing substantive to complain about.
Only the reduction in credit-earning
class requires further consideration.
Although sec.2254 provides the right
vehicle, the question remains whether a
reduction in credit-earning class
deprives a prisoner of "liberty" or
"property"--for if not then the state is
free to use any procedures it chooses, or
no procedures at all. Any temptation to
say that freedom from confinement (the
maximum 6 year and 8 month difference
between Class I and Class II) must be a
form of "liberty" was squelched in
opinions such as Greenholtz v. Nebraska
Penal Inmates, 442 U.S. 1 (1979),
Connecticut Board of Pardons v. Dumschat,
452 U.S. 458 (1981), and Ohio Adult
Parole Authority v. Woodard, 523 U.S. 272
(1998). These hold that a judgment of
conviction extinguishes natural liberty
for its full length--in Montgomery's
case, 40 years. Opportunities for early
release, such as parole or pardon,
constitute either property interests or a
form of synthetic liberty, and then only
if the state has made a promise.
Unilateral expectations and hopes for
early release do not constitute property,
which depends on a legitimate claim of
entitlement. See Kentucky Department of
Corrections v. Thompson, 490 U.S. 454
(1989); Board of Pardons v. Allen, 482
U.S. 369 (1987); Wallace v. Robinson, 940
F.2d 243 (7th Cir. 1991) (en banc).
Sandin altered this positivist approach
for sanctions such as segregation that do
not affect the length of incarceration,
but it did not modify the rules for
determining when extension of custody
affects a liberty or property interest,
see 515 U.S. at 484, so we apply to good-
time credits the approach articulated by
Greenholtz and its successors for parole
release. In the federal system, and
increasingly among the states, good-time
credits are a prisoner's principal if not
exclusive avenue of early release, so
equating the constitutional treatment of
the two systems is apt.
Good-time credits are statutory liberty
interests once they have been awarded,
just as parole is a form of statutory
liberty once the prisoner has been
released. That is the basis of Wolff v.
McDonnell, 418 U.S. 539 (1974), which
holds that states must use appropriate
procedures before revoking credits they
have bestowed. See also Morrissey
v.Brewer, 408 U.S. 471 (1972) (same
conclusion for parole revocation). What
about the prisoner's quest for credits
not yet awarded? A hope to be released
before the expiration of one's term on
good-time credits is no different in
principle from a hope to be released on
parole, and we know from Dumschat and,
e.g., Heidelberg v. Illinois Prisoner
Review Board, 163 F.3d 1025 (7th Cir.
1998), that a system making release
entirely discretionary also means that
the setting of a parole-release date does
not entail "liberty" or "property."
Similarly a state may, but need not,
create a legitimate claim of entitlement
to good-time credits. According to Malchi
v. Thaler, 211 F.3d 953, 958-59 (5th Cir.
2000), the good-time system used by Texas
does not create such an entitlement. What
about Indiana's?
Indiana initially assigns each prisoner
to Class I, see I.C. sec.35-50-6-4(a),
and provides that he may be reassigned to
Class II or Class III (no credit) "if he
violates any of the following . . .", id.
at 4(b). The list includes rules of the
prison system, the particular prison, and
a community treatment program, but
excludes rules of the parole and
probation systems. This approach--an
entitlement subject to defeasance for
misconduct that must be specified by
rule--curtails administrators' discretion
and thus gives prisoners more than a
subjective hope of receiving day-for-day
credit in Class I. It is quite similar to
the system that Greenholtz held to
establish statutory liberty. Nebraska
entitled each prisoner to release as soon
as he became eligible for parole, unless
the parole board came to one of four
enumerated conclusions that would justify
denial of parole. Although the statutory
list afforded plenty of discretion--a
prisoner could be kept in jail if, for
example, "release would depreciate the
seriousness of his crime or promote
disrespect for law", Neb. Rev. Stat.
sec.83-1,114 (1)(b) (1976)--the Court
concluded that a statute creating an
entitlement to release unless findings
are made suffices to convey more than a
subjective hope. Just so with good-time
credits in Indiana. Every prisoner begins
in Class I and is entitled to stay there
unless he violates a rule. Indiana's
officials have less discretion than
Nebraska's. It follows that Indiana must
afford due process before reducing a
prisoner's credit-earning class. So we
assumed in Meeks v. McBride, 81 F.3d 717,
719 (7th Cir. 1996). Now the assumption
is a holding.
What process is due? Both Montgomery and
Indiana suppose that the answer is the
list of procedures Wolff prescribed for
the revocation of good-time credits. Yet
for parole the Supreme Court has
distinguished between the procedures
required for revocation and the less
formal requirements to deny release. See,
e.g., Greenholtz, 442 U.S. at 13-15. The
Court noted that losing what you have is
a more grievous loss than not getting
what you want, an important distinction
because the gravity of the loss matters
to the due-process calculus under Mathews
v. Eldridge, 424 U.S. 319 (1976).
Although this approach justles against a
recognition of opportunity cost (a month
in prison is a month in prison, whether
caused by failure to award parole or by
awarding and then revoking parole), the
Court saw a difference at the level of
the prisoner's expectations. In
opportunity-cost terms, a chance of early
release must be discounted by the
probability that it will not occur, while
release once granted has a probability of
one. Moreover, the Court observed in
Greenholtz, any one denial of parole is
inconclusive; the state will offer
another chance. Because any particular
denial just defers release until the next
hearing, the stakes and correspondingly
the required procedures are diminished.
That is equally true with credit-earning
class assignments in Indiana. A person in
Class II or III is entitled to a review
every 6 months. I.C. sec.35-50-6-4(d).
Thus it is an overstatement to say that a
person assigned to Class II soon after
the commencement of a 40-year term spends
an extra 6 years and 8 months in prison.
The inmate may be returned to Class I at
any of the biannual reviews. What follows
is that the procedures required by due
process likely are less elaborate than
those prescribed by Wolff for revocation
decisions. But we need not decide how
much less, not only because the parties
have not contested this issue but also
because Indiana by statute gives
prisoners more than Wolff requires. See
I.C. sec.35-50-6-4(c).
The prison rule that Montgomery violated
requires inmates to obey state and
federal criminal laws. According to the
charge Montgomery violated I.C. sec.35-
45-10-5 by stalking a female guard.
Indiana defines stalking as intentional
harassment that would cause a reasonable
person to feel frightened, intimidated,
or threatened. See I.C. sec.35-45-10-1.
The prison concluded that Montgomery had
become infatuated with officer Debbie
Harrison and had decided that a course of
harassment was the best way to induce her
to feel the same way about him. The
evidence at the disciplinary proceeding
demonstrated that Montgomery had gone out
of his way to be near Harrison, had
threatened her, had refused to leave when
she directed, and so on. The prison held
a hearing at which Montgomery was
represented by a lay advocate and was
allowed to testify and present written
and oral evidence. The disciplinary board
found that the evidence supported the
charge.
Montgomery's objections are niggling.
One is that the board did not make
adequate findings of fact. Whether it
need make any findings (Greenholtz held
not) is open to question, but irrelevant
here because the board explicitly relied
on the conduct report and investigative
report, both of which supplied details.
See Pardo v. Hosier, 946 F.2d 1278, 1285
(7th Cir. 1991). Another is that the
charge was defective because it
identified the anti-stalking law as I.C.
sec.35-45-10.5 rather than I.C. sec.35-
45-10-5. How anyone could have been
misled by the difference between a period
and a dash is a mystery; there is no I.C.
sec.35-45-10.5, so access to a set of
statute books (which the prison's library
provides) would have led Montgomery to
the right citation. He could have asked
for clarification had he been in genuine
doubt. Still another is a contention that
he was interviewed without Miranda
warnings, which may well be true but is
irrelevant to prison discipline. See
Baxter v. Palmigiano, 425 U.S. 308
(1976). Montgomery has many more
objections on his list, but all depend on
the idea that prison discipline is a form
of criminal prosecution, which as Baxter
holds is not so. None of his other
objections requires separate discussion.
Affirmed