Barlor v. Patton
16-6093
| 10th Cir. | Mar 7, 2017Background
- Danny R. Barlor, Oklahoma DOC inmate #85688, seeks habeas relief under 28 U.S.C. § 2241 challenging loss of earned credits, demotion in earned-credit level, increased "security points," and placement in maximum custody based on alleged escape-related history dating to 1985 and 1991.
- In 1991 Barlor was administratively found guilty of an alleged "plan of escape" based on confidential informant testimony; he lost earned credits and was demoted, but later was promoted through levels 2–4 until 2003.
- On April 18, 2003 a private-prison auditor at Great Plains Correctional Facility retroactively applied a 1997 DOC policy (OP-060213/OP-060107) to reduce Barlor from level 4 to level 2, costing monthly earned-credit accruals and adding ten security points, allegedly without notice or hearing.
- Barlor contends the 2003 action (and similar DOC applications) violated due process (lack of "some evidence," inadequate hearing procedures, use of confidential informant without reliability finding), violated the ex post facto clause (retroactive, unforeseeable policy change increasing punishment), and resulted in discriminatory and arbitrary treatment by private prison staff and DOC.
- He alleges procedural failures in exhaustion and in DOC grievance handling, and seeks restoration of credits/level, removal of security points, and relief from collateral consequences (including maximum placement and parole-impacting records).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process for loss of earned credits | Barlor: disciplinary findings lacked "some evidence" (relied on confidential informant, no proffer/summary, no reliability determination) and hearing violated Wolff procedural safeguards | DOC: disciplinary processes were followed; plaintiffs' allegations are conclusory and lack supporting evidence | Courts apply Superintendent v. Hill "some evidence" standard; where record lacks any evidence or required statements, due process is not satisfied (plaintiff seeks same relief as Aguiar/Warnick precedents) |
| Retroactive application / ex post facto | Barlor: 1997 policy change was substantive and not foreseeable; retroactive application to 1985/1991 incidents increased punishment (longer ineligibility/points) so violates ex post facto | DOC: policies govern classification and are applied according to authority; changes are not impermissibly retroactive | Under the two-part Weaver test, an unforeseeable substantive change that disadvantages the inmate can violate the Ex Post Facto Clause; Smith v. Scott supports relief where amendment was not foreseeable |
| Authority of private-prison auditor to alter earned-credit level | Barlor: Legislature delegated earned-credit authority to DOC only; private contractors lack authority to unilaterally demote/revoke credits (delegate potestas non potest delegari) and commercial incentives create conflict | DOC/private operators: auditors act under DOC contract/authority and enforce DOC policy | Tenth Circuit precedent has been critical when auditors take credit-revoking actions without due process; unauthorized unilateral demotion by auditor is legally suspect (Warnick, Gamble) |
| Exhaustion and equitable considerations | Barlor: he exhausted available remedies or appeals to state authorities, and administrative process was obstructive/futile; federal habeas review is proper under §2241 | DOC: may argue exhaustion/threshold defenses or dispute completeness | Exhaustion is not jurisdictional for §2241 in some circumstances; courts may reach merits if state remedies are inadequate or futile (O'Sullivan/Granberry principles cited) |
Key Cases Cited
- Superintendent v. Hill, 472 U.S. 445 (1985) (disciplinary findings depriving inmates of good-time credits must be supported by "some evidence")
- Wolff v. McDonnell, 418 U.S. 539 (1974) (prisoners facing loss of good-time credits are entitled to specified procedural protections)
- Smith v. Scott, 223 F.3d 1191 (10th Cir. 2000) (1997 DOC regulation amendment was not foreseeable and its retroactive application violated ex post facto and due process)
- Weaver v. Graham, 450 U.S. 24 (1981) (two-part ex post facto test: retroactivity and disadvantage)
- Warnick v. Booher, 425 F.3d 842 (10th Cir. 2005) (DOC auditor improperly took earned credits without affording due process)
- Gamble v. Calbone, 375 F.3d 1021 (10th Cir. 2004) (reversed where disciplinary board lacked sufficient evidence; courts scrutinize private-prison misconduct practices)
- Edwards v. Balisok, 520 U.S. 641 (1997) (habeas relief proper where success would necessarily imply invalidity of disciplinary action affecting duration)
- Haines v. Kerner, 404 U.S. 519 (1972) (pro se pleadings held to less stringent standard)
- Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991) (conclusory allegations insufficient to state claim)