Hawkins v. Freeman

ERVIN, Before MURNAGHAN PHILLIPS, Judges, Senior Circuit Judge. Circuit Reversed and remanded with instructions grant petition published opinion. opinion, Judge wrote the MURNAGHAN joined. Judge Judge which ERVIN Senior dissenting opinion. wrote a PHILLIPS OPINION MURNAGHAN, Judge: Circuit 1981, Irving Hawkins was sentenced fifty years imprisonment in North Car- receiving olina a habitual felon. After as contradictory when he notifications about finally eligible parole, he was would be successfully paroled in 1992. Hawkins community, obeying reintegrated into' the all parole, holding job conditions of his sault with rape intent to commit and one promoted, reacquainting he was count of robbery. armed See State v. Sim- mons, family. N.C.App. himself with his Then 1994 he was 286 S.E.2d (Ct.App.N.C.1982). rearrested on basis the determina- His FBI record reveals eligible well, other charges tion that he was had been less serious both as an in made error. adult and as a minor. Having appeals, exhausted Haw- beginning From the of his incarceration as petitioned kins for habeas corpus relief. He felon, a habitual given Hawkins was conflict- argues primarily that his reinearceration vio- ing explanations eligible of when he would be guarantee lates the Fourteenth Amendment’s parole. that, for The suggests record that, process. of substantive due We hold first, may he have been told that he would be parolee

where the did not know that his eligible parole very shortly for after his con- error, release was his interest in his con- Then, 14, 1982, viction. on June the Parole liberty crystallized during tinued the two Commission informed Hawkins that he would years parole of successful the Four- eligible parole not be for until he had “served requires strictly teenth Amendment that we years” sentence, giving of his parole him a infringe- scrutinize the State’s intentional eligibility 20, date of “October 2010.” The ment that interest. Commission assured Hawkins it had “studied your case, all the and we are sure facts

I. following requirement that we are of the in reaching law” this 2010 date. About a essentially The facts this case are later, year 7, 1983, September on the Parole agreed upon: the State does not contest changed again: Commission its mind once “apparent good-conduct Hawkins’s while re- carefully checking your parole “After eligibil- leased,” that, and Hawkins concedes al- date, ity you we eligible find that will not be time, though he did not realize it at the he parole April Finally, until 2018.” on statutorily ineligible pa- was when he was suddenly March Hawkins was in- begin roled.1 We with a short review of how being formed that he was considered for arrested, paroled Hawkins came to be community parole. Assuring service Haw- rearrested. kins that it had investiga- “made a careful 27,1981, February Irving On Hawkins was case,” tion of this the Parole Commission County, convicted in Guilford North Car- 6,1992. paroled July on Hawkins olina, possession, delivery sale and of one- gram half of cocaine. Hawkins completely was found to Hawkins claims fifty be a habitual during years felon and sentenced to rehabilitated his eleven of im- years imprisonment prisonment. magistrate on the sale and deliv- judge The who first ery charge years concurrently and ten on petition heard this habeas found that Haw- possession charges (along sixty days good prison during kins had a record those concurrently and, charge driving years incarcerated, on a under the while obtained a influence). It degree must be admitted that University Haw- business from Shaw sympathetic kins is not a through study-release character. The program. mag- The habitual felon determination judge during was based on istrate further found Haw- young evidence that nearly parole Hawkins had as a man kins’s on he substan- imprisoned tially complied been convicted of and obligations, one with his rape, count aggravated steady job two counts of promoted, as- which he was held expressed argument purposes deciding 1. We some concern at oral kins’s attestations for appeal summary judgment, about how the evidence about Hawkins’s rehabil- see Turner v. record, Jabe, 1995), gotten appeared had itation into the as it 930 n. 6 Cir. to have been based on the Parole Commission’s would remand to the district court to hold report hearing evidentiary hearing revocation rather if those facts established that However, findings than on state court of fact or a federal Hawkins was entitled to relief. evidentiary hearing. court Because there are no us assured did not contest the facts correct, Hawkins, findings presume put state court of fact to and that forth no remand typically fact-finding necessary. we would assume the truth of Haw- further protections procedural all of the family. Al- not contain with his ties reestablished Because we believe that Hawkins he was due. though is some indication there community principles of the substantive com- service complete the established did not re- Amendment’s Due ponent of the Fourteenth assigned, the Parole Commission he was case, begin problems govern no while we “Hawkins ported that Process Clause principles. does not contest exposition and the State of those parole,” with an that dur- in his affidavit statement Hawkins’s

ing his release pus relief. His rearrested role.” year's) phy, various mission concluded N.C. Gen.Stat. the district the Commission informed Ironically, that statute had been seven effective Hawkins January date” sentencing serve statute eligible Penalty ommended ed his L.Ed.2d Then, Hawkins pre-Antiterrorism a habitual offender serve would be years.” By letter of October before 75% under which Hawkins was grounds. claims in state Act standards. 27, 1995, on March U.S. only that his “current on the basis that parole in 1992. and challenged his reincarceration on that such judge agreed with that recom- of his (1997). magistrate judge rec- he would be 320, four April replaced with a claim § Having effectively petitioned for habeas cor- 14-7.6, 117 S.Ct. “never months 50-year 20, A therefore relief be and 2018. court,2 Hawkins on See Lindh Mur- the habitual the reincarcerated eligible for required violated The Parole Com- he had not been Effective Death after 2059, sentence “not less than Hawkins was requirement denied, sentenced, Hawkins’s subject to 2063, 138 eligibility [his] repealed 10, exhaust- v. parole. 1994, felon (37.5 pa- without due reading teenth Amendment property, used least iels to contain a substantive 205 governs shall gardless tution ney California, liberty 2791, hood v. one Const, 641, 662, curring), quoted in Planned doctrine of substantive damental U.S. at 123 U.S. v. v. (1887), ‘barring 71 L.Ed. 1095 88 L.Ed.2d 662 “deprive any person of ^[111] 120 L.Ed.2d 674 may deprive persons of Williams, are 847, 112 implement amend. XIV. Casey, only 623, rights comprised within the term the Clause protected by the Federal Consti the Clause Due Process Clause years, invasion certain 660-661, 505 U.S. S.Ct. fairness 474 274 them.’ since procedures (1927) (Brandéis, J., guarantees that no state A. government actions re U.S. 2791. (1986)). U.S. of law.” process might suggest that it 8 due (1992) has been understood “Although a literal the States.” Whit Mugler v. ” Planned Parent S.Ct. component as 833, 846, 112 of the 327, 331, 357, process, “all fun Parenthood, life, liberty, or liberty, 273, Through the 373, of the Four procedures 106 31 L.Ed. which a Kansas, 47 S.Ct. Dan S.Ct. S.Ct. well, U.S. con mendation, summary judgment granting whether the asserted It is contested appeals to the State. Hawkins us. infringed by Hawkins’s reincarcera right. is such a fundamental The

II. Supreme “regularly observed that Court specially protects grant court’s the Due Process Clause review the district We rights fundamental and liberties summary judgment de novo. those the State 593, are, objectively, ‘deeply rooted in this Na Murray, v. See Savino Cir.1996). ‘implicit in history and primarily that tion’s tradition’ and argues Hawkins liberty,’ such concept of the" ordered his reincarceration violated substantive justice if liberty nor would exist rights, alternative ‘neither process due advances waiver, Washington v. Glucks sacrificed.’” estoppel and the bar were theories 2258, 2268, berg, 117 S.Ct. He also ar- 521 U.S. against installment sentences. (1997) (quoting City Moore hearing did L.Ed.2d gues that his revocation require- violation. State has waived exhaustion main claim of a substantive for Hawkins’s ment Cleveland, 494, 503, 165, 172, East 431 U.S. S.Ct. U.S. 72 S.Ct. 96 L.Ed. 183 (1977), (plurality opin (1952), Palko, 52 L.Ed.2d 531 325-26, U.S. Connecticut, ion), 319, 325, 149) (citations Palko 302 U.S. omitted)(emphasis add- (1937), ed). 58 S.Ct. 82 L.Ed. 288 id. However, the Court’s foray recent most 149) (citations omitted). 58 S.Ct. Cer into the realm characterizes the determina- tain liberties Rights enshrined the Bill of tion “whether the govern- behavior of the examples offer clearest those held mental officer egregious, is so outrageous, so “fundamental,” category but the is not may fairly that it be said to shock the con- list, limited to this nor is it limited “those temporary conscience” as a ques- “threshold practices, specific level, defined at the most tion,” “antecedent to” “possibility of protected against government that were in recognizing a terference other rules of law when the to be of such free executive County action.” Fourteenth Amendment was ratified.” Sacramento, 118 S.Ct. at 1717 n. 8. Parenthood, Planned 505 U.S. at 112 Therefore, not unless éxecutive action Instead, S.Ct. 2791. “full scope “shocks the conscience” does reach the liberty guaranteed by the Due Process power level of necessary abuse of to invoke comprises Clause” “a rational continuum process protections life, substantive due which, broadly speaking, includes a freedom liberty property. Id. at 1717 & n. 8. arbitrary from all impositions substantial restraints, purposeless recog and which also Negligently harm, inflicted the basis nizes, what a judg reasonable and sensitive of liability, traditional tort not sufficiently must, ment require certain interests conscience-shocking implicate as to constitu particularly scrutiny careful of the state tional Due protections, Process Clause justify needs asserted to their abridgment.” procedural. whether substantive or See id. Ullman, 497, 543, Poe v. 367 U.S. 81 S.Ct. Cannon, 1718(citing at Davidson v. 474 U.S. 1752, (1961) (Harlan, J., 6 L.Ed.2d 989 dis 344, 348, 668, 106 S.Ct. 88 L.Ed.2d 677 senting jurisdictional from dismissal on (1986)). point “Whether the of the con (citations grounds) omitted), quoted in science-shocking injuries is reached when are Parenthood, 848-49, 112 Planned 505 U.S. at produced culpability falling within the S.Ct. 2791. range, following middle something from more than negligence but ‘less than intentional But process substantive due does conduct, “gross such as negli or recklessness absolutely guarantee that these funda ’ gence,” is a matter for closer calls.” Id. rights mental will be held inviolate. Execu Daniels, (quoting 3, 474 U.S. at 334 n. 106 infringes tive action that such a violates 662)(citations omitted). is, S.Ct. That “delib component substantive Pro Due erately indifferent [official] conduct [is] “only cess Clause when it ‘can properly enough satisfy to requirement fault arbitrary, characterized as or conscience ” process circumstances, due claims” in certain shocking, in a constitutional sense.’ Coun (giving example id. as an Lewis, state’s deliberate ty 833, v. Sacramento 523 U.S. 118 of pris indifference the medical 1708, needs 8, S.Ct. n. 1717 & 140 1043 L.Ed.2d oners, (1998) Eighth in violation of the Amend City Collins v. Harker ment), although in other Heights, 115, 128, circumstances such 503 112 U.S. S.Ct. (1992)). may “[d]eliberate indifference ... 117 not be so L.Ed.2d 261 past, patently egregious” Supreme as to constitute Court a.con has described the substantive science-shocking process power, abuse of provided as if it id. 118 doctrine independent types S.Ct. at 1718-19 protection: (explaining that deliberate “So-called egregious” process’ prevents gov ‘substantive due indifference life is “less engaging high-speed ernment context of a enforcement conduct law chase). negligence, ‘shocks the conscience’ or Rather than reckless interferes with rights ‘implicit indifference, concept in the ness or ordered deliberate it has tradi ” Salerno, liberty.’ actions, tionally United States intentional U.S. those “de 739, 746, government 697 liberate decisions of S.Ct. L.Ed.2d officials to (1987) (quoting life, California, deprive Rochin v. person liberty, property,” “ ‘implicit in the are those component of tive due which the substantive about liberty’ that ‘neither such concept of ordered Dan- is concerned. Due Process Clause if were justice exist liberty would nor iels, quoted at 106 S.Ct. 474 U.S. ” at Glucksberg, S.Ct. Sacramento, at 1718. sacrificed.’ 118 S.Ct. County of 325, 326, Palko, 302 U.S. at way 2268(quoting injure in some intended to “[C]onduet 152). society kind What interest is S.Ct. by any government unjustifiable any intentional to condone likely be were we to rise action most of official the sort rights so de- fundamental infringement of County conscience-shocking level.” Sacramento, fined? at 1718. 118 S.Ct. B. on wheth This therefore turns case to Haw principles Applying these by Hawkins liberty asserted interest er case, whether task is to determine kins’s our a “funda prevent his reincarceration agreed-upon facts demonstrate liberty a fundamental mental” one. Whether fundamen intentionally violated has legal course a determina exists is of interest, deliberately liberty or has been tal tion, Beverati subject novo review. See to de to an extent an interest indifferent to such Cir.1997). Smith, so, the If State’s shocks the conscience. required a “careful Supreme Court scrutiny. subjected to strict must be actions interest, Glucks description” of the asserted ‘forbids Amendment Fourteenth “[T]he “reluc- recognizing its berg, 117 S.Ct. at infringe ... “fundamental” government concept of expand the tan[ee] all, pro what no matter interests responsi guideposts for because infringement is provided, unless the cess is area decisionmaking in this unehartered ble compelling state narrowly to serve a tailored Collins, open-ended,” 503 U.S. are scarce Glucksberg, interest.’” 1061, 125, Glucksberg, quoted 112 S.Ct. 292, Flores, 507 U.S. 2268(quoting Reno v. liberty a interest Such 117 S.Ct. at 2267. (1993)) 1439, 302, 1 123 L.Ed.2d 113 S.Ct. by by law the Due may be created Chapel original); v. (ellipsis in Herndon itself, Washington v. e.g., see Process Clause Educ., F.3d City Bd. 89 Hill-Carrboro of 1028, 221-22, 110 — 210, S.Ct. Harper, 494 U.S. (4th denied, Cir.1996), U.S. 177 cert. (1990)(“We no doubt L.Ed.2d have (1997). 108 178 -, L.Ed.2d 837 117 S.Ct. 136 that, liberty creat to the interest addition possess Policy, respondent ed the State’s 1. avoiding liberty significant interest es a be- question” whether the The “threshold .antipsychotic unwanted administration was suffi- Parole

havior of the Commission of the drugs Due Process under the Clause implicate ciently conscience-shocking Amendment.”), judicial re but Fourteenth protections at all is process substantive due utmost requires us to straint “exercise case, the State because not at issue in break new we are asked to care whenever intentionally deprive Hawkins of his acted Collins, field,” U.S. at ground in this liberty. that Hawkins If interest S.Ct. by the protected is a one asserts fundamental Clause, then its deliberate viola- Due Process a. State, narrowly tailored to unless us to interest, Luckily, does not ask arbitrary Hawkins compelling serve liberty interest ground here: judicial new power break sufficient shock abuse recognized Sacramento, already has 118 that asserts County conscience. See one, substantive to which have been the as a fundamental It need not at 1717-18. attach, protections in two Fourth process harm the indi- due of the State to specific intent by a number of opinions as well as vidual, full Circuit as the acted “with long so in his parolee’s A interest circuits. Id. our sister of the effect of its action. appreciation” liberty during good behavior simply, continued it more n. 9. To state at 1718 process due protected rights” protected substan- “fundamental right finality his sentence. The sentence, to serve his especially if it recognized Fourth Circuit has this funda- long prison here, involves a term as contexts, mental in two in the cases of prospect of release on or other- Lundien, (4th v. United States 769 F.2d 981 may wise seem but a perceived, dimly Cir.1985), Cook, and United States largely hope. unreal As the months and (4th Cir.1989). F.2d 672 Each of these cases years pass, however, the date of that proposition advances the that it is fundamen- prospect must psy- assume a real and tally unfair guarantee violates the of due chologically importance. critical process sentence, for a court to increase prisoner may be aided in enduring his correcting sentence, even where an unlawful coping confinement and prison with the once the defendant has so served much regime by knowledge good original sentence that expectations “his as to behavior release or release finality crystallized.” Lundien, its outright will be achieved on a date cer- Cook, 987; F.2d at 890 F.2d at 675.3 tain. time, period substantial After Lundien, the district initially court therefore, sen- might befundamentally un- tenced the to a years defendant term of ten fair, and thus violative process counts, on each of two to be served concur- a court to alter illegal even an sen- rently, days but five later amended the sen- way tence in a pris- frustrates by increasing twenty tence it to on one expectations oner’s by postponing his of the counts. See 769 F.2d 982. The parole eligibility or release date be- far challenged defendant the amendment. After yond originally set. explaining Jeopardy that the Double Clause Id. Helgemoe, Breest v. situation, did not address the the Fourth (1st Cir.1978)) added) (second (emphasis Circuit observed that it likely “seems more alteration in original); see also United States protection constitutional source Smith, Cir.) (recog of the defendant’s finality in the nizing passing the rule of Lundien that his sentence must be found in the fifth may be denied if a sentence is guarantee process.” amendment’s of due Id. enhanced after a defendant’s expectation of at 986.4 — finality crystallized), denied, cert. The Circuit param- observed that the exact -, U.S. 118 S.Ct. L.Ed.2d guarantee eters of the of due in this (1997). context firmly were “not fixed.” Id. at 987. However, it set forth following principle, The expectation finality of of sen applies Hawkins’s case well: merely tence that being given arises from process may [D]ue also be denied when a parole date is stronger much in Hawkins’s sentence is enhanced after the defendant case, where the actually defendant has has so served much of his sentence his paroled, knowledge has no parole his expectations finality crystal- as to its have error, was in made the has difficult transition lized and it fundamentally would be unfair prisoner citizen, to rehabilitated to defeat them. As the First Circuit has productive has become a society. member of principle: stated the Once the defendant has been released power [T]he sentencing of a parole court successfully reintegrated has into correct statutorily even a society invalid period years, sen- for a expecta “his subject tence must be temporal some tions as to finality [the] [of his release on prisoner limit. aWhen first parole] commences crystallized have and it would be recognition 3. Lundien and Cook's of a Although sentenc- Lundien examined ing authority Amendment, court's inherent process protections correct an erro- under the Fifth superseded neous sentence has been applies Fed. analysis same to the Fourteenth 35(c), Amendment, R.Crim.P. which "in "given Supreme effect codifies the essen Court's [Cook result in tially and a interpretations similar Second Circuit concept identical [of provides require- case] but stringent 'liberty'] a more time under Piechow amendments.” States, ment.” notes, advisory (4th Fed.R.Crim.P. 35 committee v. United 885 F.2d n. 9 icz 1214 Cir.1989). 1991 amendment. have courts and district Other Circuits Lun them.” fundamentally to defeat unfair be it would circumstances that in certain held dien, at 987. F.2d principles the fundamental inconsistent it take arises, long does how question The Due justice protected liberty and In “crystallize?” expectation to an for such reincarcer state to to allow a Process Clause Lundien, where held that Fourth Circuit after he erroneously prisoner released an ate days of only five “had served the defendant See, society. adjustment to good made a years and he had ten expected an sentence Ventetoulo, 32, 34-35 6 F.3d v. e.g., DeWitt prison destina- final reached his not even Cir.1993); Williford, 682 (1st v. Johnson sufficiently not tion,” expectations his (9th Cir.1982); v. States United Breest, Lundien on which “crystallized.” Id. (D.D.C. Merritt, F.Supp. 807-08 long not days relied, was held that 14 Williams, F.Supp. 1979); v. Lanier Hawkins, F.2d at 98-101. enough. See (E.D.N.C.1973). example An instructive years. however, almost two parole for was on v. DeWitt Ventetou the case of offered finality his expectation of the Certainly his Cir.1993). (1st lo, 6 F.3d 32 crystallized within parole determination impris- to life DeWitt had been sentenced time. particularly evil conviction of after onment princi- serving reaffirmed Fourth Circuit While intent to murder. assault with case of a ple sentence, Lundien to the aid announced DeWitt came his Cook, F.2d 672 being attacked States was guard United who prison Cir.1989). recognized a in the There the Circuit for the testified state inmate and later mistaken recognition correct a In power to inherent of the inmate. prosecution court’s so, explained: efforts, suspended all doing the trial court these sentence. See years life sentence. of DeWitt’s but limi- not power is without inherent This id. at 33. every tation, point sentence some later, supreme court years Two state As we indicated final. must become court separate case that a trial Lundien, in a held 769 F.2d 981 States United once a suspend a sentence not such fundamentally could (4th Cir.1985), it would begun it. Neverthe- defendant had serve process to of due unfair and violation less, no effort to undo made a sentence a district court enhance allow Six suspension of DeWitt’s sentence. so much of has served the defendant “after partially sus- had been after sentence expectations as to that his his sentence re- granted pended, DeWitt finality crystallized.” DeWitt’s sentence prison. Had leased from 987) Lundien, Id. have been suspended, not been omitted). there- The Circuit (part citation 16 months. eligible for another “an ac- to correct power that the fore held id. See in sentenc- knowledged mistake” and obvious work parole, obtained After his DeWitt only during period of time ing “exists family. with his contact and reestablished ap- may party file a notice which either he However, his eight months after release time, the that that we believe peal. After he for which in an altercation was involved final, district and the has become sentence seeldng to revoke Instead of was arrested. authority modify it.” Id. any to court lacks order its earlier state vacated parole, his the a court’s If Due Process Clause limits the life suspended part in his sentence. had that sentencing in power to correct mistake to serve re- the recommitted DeWitt was may appeal be days an only SO in which the imprisonment. life of the term of mainder taken, days inmate’s because after See id. finality of his in the sentence interest question DeWitt the whether Reserving clearly the Commis- crystallized, then Parole parole, of his the conditions parole had violated a mistake in its may not correct sion no- held that the First Circuit defendant years after the calculations the prohibited fairness of fundamental violating the same tions released without has been original life reimposing DeWitt’s state process. guarantee of due term. See id. at Citing 35-36. the Fourth knew or should have that an known error Lundien, Circuit’s decision in the First Cir- had been made. explained only cuit in extreme cases Id. at 36. None of those circumstances dis- court’s correction of an earlier mis- tinguish Hawkins’s, DeWitt’s case from how- in sentencing take be “so unfair that ever: Hawkins was prison, released from must be deemed inconsistent with funda- interval between his release and its correc- mental notions of fairness embodied in the tion years, was almost two did not he Due Process Clause.” Id. at 35. Without parole know that eligibility his determination establishing tests, any specific the First was erroneous. The First Circuit in DeWitt Circuit proposed certain factors to which followed the statement in Lundien “that due given: consideration should be in principle impose must an outer lapse to the of time between the mistake ability limit on the to correct a sentence after attempted and the increase in sen- the event.” Id. doWe the same. tence, to whether or not the defendant contributed to the mistake and the reason- b. intervening expectations, ableness his The State seeks to principle avoid the prejudice by change, worked later Lundien and grounds. First, Cook on three diligence and to the exercised state attempts the State distinguish the two seeking change. in that, arguing cases unlike Lundien and

Id. Cook, Hawkins’s sentence was not “en- In finding that DeWitt’s rearrest was fun- by the hanced” Parole Commission. That in unfair, damentally the First Circuit stressed those cases a mistaken sentence in- was diligence creased, could whereas in Hawkins’s ease his erro- challenged suspension of his sentence far neously granted parole revoked, was is a sooner than it did. See id. It also noted distinction without a difference. In the case only reasonably DeWitt was led to where a being increased, sentence served is believe that his sentence been making reduced parole away, date farther for number prison, in while but significant inmate’s reasonable expecta- actually released, down set new roots of future frustrated, has been society, joba got family and reestablished implicating protection of the Due Process ties. Finally, See id. the First Circuit noted same, Clause. frustration is the if not the state’s interest rearresting where, De- magnified, having date Witt and correcting its earlier passed mistake was having and the released, inmate weak: it seemed to attempt be an avoid unexpectedly revoked the in- granting DeWitt the hearing necessary full mate returned to prison, without fault to revoke parole. See id. at own, 35-36. of his serving continue a sentence. In both cases inmate has an The First opinion Circuit’s sup- DeWitt finality imposed upon sentence him ports our conclusion in Hawkins’s In case. state, including eligibility his date of explaining that one, its rule awas narrow parole. Lundien, See at 987. First Circuit described the numerous cases crystallizes, Once that interest the substan- which have allowed a sentence to in- guarantees tive of the Due Process Clause creased initially imposed after it was in er- prevent infringing the state from it. ror. distinguished Each these cases was from DeWitt’s: Second, the distinguish tries Lun- virtually all [such cases] that we have dien arguing and Cook that Hawkins had discovered, there been some no expectation” distin- remaining “reasonable on guishing separates that parole circumstance that release because he had “on been no- DeWitt’s, case irom example, for because tice at least since he 1982 had to serve 30 (as true) is often the years defendant was in still before eligible [he would pa- be] for prison, or the original interval between Christiansen, the role.” See Green v. 732 F.2d brief, (9th Cir.1984)

sentence its correction was 1399 (refusing estop the certainly because defendant almost government the reincarcerating from an er- 276 he the fact that And latest one. the had not ed prisoner who

roneously released that to him confirmed actually paroled was ex- a reasonable to form misled as so been Finally, was accurate. letter recent the most release, therefore and who was pectation during parole years on almost after knowledge he that charged with constructive by a North Carolina supervised he was which serve). the State’s is This time had still officer, rea- he must parole state-government let- knew from Hawkins argument: that key he every that confidence sonably have had parole commission he received ters him. days prison in put had his behind years to serve more at least 30 he had that eligible parole, for he would be before that while State important to note It is notice or constructive pa he had actual that therefore had notice his argues that Hawkins The in State parole was error. his he error, that claim that it does not in role was word-for-word, argument, almost repeats this error. Hawkins knowledge of the had actual times in separate than fourteen no fewer “I not aware was in his affidavit: stated I parole] brief. that date prior [the time was, in I parole when eligible for not was repetition, insistent Despite the State’s parole I aware that fact, was paroled, nor misrepre- The State argument is meritless. paroling a when made mistake commission that Hawkins it claims the record when sents March, The in 1994.” my arrest me until his sentence beginning of “advised was The this assertion. not contest does State he would again in 1983 that in 1982 knowledge that lack of actual petitioner’s served more until he eligible parole for be distinguishes is what in error was release fact, the In years his sentence.” than 30 Camper v. from eases such case Hawkins’s contradicted State refers to which the letters Cir.1994) Norris, 784-85 F.3d 36 eligibility other, setting parole dates each violation where (finding no Throughout his apart. eight years that were inwas release knew his continued defendant many as sentence, of as notified Hawkins was Martinez, 837 error), v. States and United he would be dates different four (9th Cir.1988)(holding that 861, 864-66 F.2d First, there is evidence parole. eligible for delay many did a after incarceration eligible for that he would that he was told process guarantees not violate imprisonment; shortly after his quite parole knew the defendant where Fifth Amendment second, sent letter Commission the Parole made). been that a mistake had information, explaining that earlier to correct “sure,” However, “stud[ying] after maintains that Haw the State were now that case, he would be known that that to have presumed facts” in his all the kins should be all, 2010; third, told is a parole. he was After ineligible for eligible for he was checking,” “carefully presumed Parole to know are that after that all citizens truism States, eligible See, not be e.g., he United found Jacobson Commission the law. 2018; 540, 550, he was told and fourth parole until U.S. S.Ct. (1992); Aqui after decided States Parole Commission had United L.Ed.2d (4th Cir.), eligible no-Chacon, he was cert. that investigation” “careful — (and denied, -, paroled) in fact U.S. 260(1997). re- repeatedly presumption, Parole Commission had Given this L.Ed.2d he would be person obtains argues “[n]o its conclusion about when vised statute,” times those of a parole, application and three eligible to incorrect Gunter, accompanied by F.Supp. as- were conflicting Lustgarden v. citing revisions time, (D.Colo.1991), that, aff'd, Commission this surances Cir.1992). argument 552(10th “sure.” and was When If the “careful[]” State’s revision, correct, fourth indicat- cannot have a defendant Hawkins received then parole, finality eligible for fact ing he was in fundamental any of the contrary believe law. reason to had no sentence more accurate. notices were earlier foreclose Lundien Cook But both Cook, context. argument the earlier perspective, Hawkins’s From “at recognized that some Circuit supersed- Fourth were eligibility calculations parole point every sentence must become crystallizes. final.” require We do not pris- a added). (emphasis We af- independently oner analyze the sentencing firmed that it “fundamentally would be unfair guidelines their and interactions with the process and a violation of due to allow a parole eligibility rules to determine for him- district court to enhance a sentence” once it self whether sentencing judge’s the or Parole crystallized, had original even where the sen- Commission’s decisions are correct. The tence was the acknowledged result of “an tangle repealed amended, interdepen- misinterpretation pertinent of the [sentenc- dent sentencing probation provisions in ing] guidelines section.” Id. ap- We then North Carolina has caused confusion for its plied that rule to a sentence that “was not Parole Attorney Commission and General be- pertinent authorized [the sentencing fore, see generally Johnson, Glenn v. guidelines] section departure nor based on a (4th Cir.1985), F.2d 192 very and we much guidelines,” short, from the a “sentence Hawkins, doubt that any legal without train- [that] was anot lawful one.” Id. We made ing, expected could be untangle them. no contention that the defendant’s interest in The State’s attempt third finality avoid the of his unlawful rule sentence was ille- of Lundien gitimate citing cases, Cook is presumed because he should be Johnson, contrast, Glenn v. By know the law. 761 F.2d 192 held that Cir. we 1985), Landon, Crowley district court power had the to correct F.2d 440 (4th Cir.1985), only which, sentence claims, “[b]ecause the time for it stand for the government proposition appeal file a notice of “the had not state’s interest in cor expired,” and the rectly sentence enforcing had therefore not outweigh laws can pris a become “final.” Id. expectation oner’s settled of continued re lease on parole.” eironeous But these cases Lundien explicitly rejected also argu- simply do not process address the due claim ment that Due Process Clause does not made Hawkins. afford an in statutorily invalid sen- words, quoted above, tence. Those bear re- Johnson, In Glenn v. the Fourth Circuit peating: proper addressed interpretation of a power [T]he of a sentencing court to cor- parole North eligibility Carolina statute. rect even statutorily invalid sentence The Parole Commission believed that Glenn subject must be temporal to some lim- similarly and other prisoners situated it.... time, After a substantial period of eligible parole be serving after ten therefore, might fundamentally un- sentence; of their Attorney the state General fair, and thus violative of due for a believed otherwise. See 761 F.2d at 193-94. court to even an illegal alter sentence A prisoners issue, class of litigated such way which prisoner’s expecta- frustrates a and the Fourth Circuit concluded that tions postponing parole eligibility his Parole interpretation Commission’s was in beyond release far originally date set. error. See id. 194-95. Breest, at 987 579 F.2d at 101) (internal omitted) (al- quotation However, opinion marks did not resolve added). teration original) (emphasis whether the Due Process Clause would be implicated if Glenn had been informed The rule persons that all pre- must be then, first of the earlier date and after sumed to know certainly the law applies expectations crystallized, told where an individual takes actions that violate fact, that the later law, date was correct. but ignorant claims that he was specifically Fourth Circuit proscription. law’s declined to ad- That presumption is dress alleged a reflection “considerations of principle ignorance infractions,” ... the law is no explaining excuse for its that “[t]hose violation. But the presumption questions, inapposite fascinating, while sentencing long need not here, prisoner engage is entitled to ex- us” because the Circuit found that context — pect that the given that he sentence will be the statute “inescapably]” prescribed final, period expecta- after proper parole time his all along. date Id. amendment fourteenth under the stands for “Glenn that asserts The State other [because Constitution the Parole Commission States that United proposition have, authority cor- to reincarcerat- has, must prisoners and indeed were released eligibility determining parole error 2) rect ed]; a due prisoner’s upsets a correction when the even parole for credit towards good time How- release.” of earlier expectation settled 3) reincar- probation; their spent on time claim, no there is ever, despite the State’s protec- the constitutional violated ceration pris- opinion that in the Glenn indication 4) and, laws; post ex against facto on, in- rely or even led had been oner subjected them to reincarceration their eligi- erroneous, early parole of, the formed punishment. unusual cruel and told that later been then bility date and Glenn Because was correct. another date Id. any pro- address specifically declined to these each of denied Circuit The Fourth controlling our it is not considerations cess The relief.5 habeas bases for four asserted the rule case, counter certainly it cannot therefore, when asserts wrong, it and Cook. of Lundien that proposition for the “Crowley stands Crowley v. Lan- upon also relies The State group of one may reincarcerate the state addressed don, the Fourth Circuit in which erroneously released prisoners who were sentences whose of three inmates the case without choosing pursue others not to while re- had been and who suspended had been equal protection.” process or violating due by Virginia supervised probation leased on presented Crowley was not The court in publicity, unfavorable Following trial court. process question the due answer general petitioned and did not attorney Virginia to bar Virginia for a writ posed case. Supreme Court our Eventually, the Su- release. the inmate’s provides that sum, law Fourth Circuit In the trial Virginia reversed preme Court sentenced, his reasonable after an inmate The release orders. and vacated the court specific on future release expectation of and were voluntarily inmates surrendered crystal- time. crystallizes over Once date at 442. See reincarcerated. expectation of freedom lized, that reasonable corpus for habeas petitioned The inmates protected liberty interest legitimate is a Although reincarceration. from their relief Hawkins When Due Clause. Process process con- posed similar due their situation him- reintegrated parole and on was released ease, Crowley does Hawkins’s cerns as reasonably community, ex- into self argue that reincarceration did not petitioners a free citizen so pected to continue live rights. their substantive violated pa- obeyed the conditions of long as he following four only the Rather,they made he was years in During the two which role. arguments: violation, parole without on petition attacks petitioners’ habeas The crystallized. When the rearrested grounds that: on the their reincarceration error, it two-year-old correct its protection Hawkins to 1) equal deprived them neglect, must simple addressing reincarceration Crowley wheth- came 5. The closest with fundamental erroneously unequivocally inconsistent defendant had er an released justice. it cited against protections principles rearrest when Merritt, F.Supp. merely States v. United noted Circuit Id. The Fourth portion (D.D.C.1979), of the to the in a footnote of meet- Crowley fell "far petitioners’ case short” denying good credit toward opinion time Merritt, the Id. ing requirements. Merritt's spent re- petitioners on had months nearly parole petitioner been released 444 n.6. The Fourth F.2d at lease. See outstanding on an before his rearrest three whether explicitly to decide declined Circuit adopt unsuccessfully detainer, previously he had factors conclusion three Merritt's detainer; clarify sought of the status present habeas to be to warrant would have petitioners out Crowley, had been three relief: months, seven, dur- only prison for six been at- must not have release erroneous being chal- orders were ing their release petitioner, the action to the tributable lenged. more than have amounted to authorities must right violated his to due of law.6 If allegation there were an that the State

had an interest in-reincarcerating Hawkins to protect public safety because Hawkins 3. rehabilitated, not been that interest only strictly It remains to scrutinize the certainly compelling be and reincar- State’s actions to determine whether its vio- ceration at this might late date narrowly be lation of Hawkins’s remedy tailored to continuing, threat right narrowly tailored serve a com- public. But the State does not assert pelling interest. The State has a in- broad interest, such an conceding good Hawkins’s in terest the effective enforceméht of its behavior for the two parole. he was on laws, including the legal correction of its The Parole Commission exercised its discre- errors, guarantee so as to to its a citizens parole tion to in noting Hawkins predictable governance. and consistent The he had “made some effort to improve his has an also interest in reincarcerating situation while in prison, college via a de- erroneously an released inmate to serve gree” opining and that “the best interests of entirety his originally imposed sentence as public and the inmate will be by served specific general deterrent, retributive his release supervision under at this time.” and rehabilitative reasons. See N.C. Gen. Since his release he successfully has reinte- (“The § Stat. primary 15A-1340.12 purposes grated community into the substantially sentencing person convicted of a crime complied parole with all obligations, vindicat- impose punishment are to commensurate ing the Parole judgment Commission’s injury caused, with the taking offense has good he awas parole. candidate for There is into account may factors that diminish or no evidence nor claim that poses Hawkins increase culpability; the offender’s protect any danger future community. to the public by offenders; restraining to assist The State’s general in interest deterrence the offender toward rehabilitation and resto- will significantly not be if undermined Haw- ration to the community citizen; as a lawful kins is allowed to parole. remain on It is provide and to general deterrent to crimi- any inconceivable that individual who knows behavior.”). nal proscribes that the law his conduct and that particular establishes a penalty for viola- These are significantly interests tion will be less breaking deterred from case, weakened Hawkins’s and his rearrest law because he believes that if caught, he is is not narrowly tailored to serve them. It is convicted and sentenced the Parole Commis- far too sentencing provision late for the to be may sion erroneously parole early, 'him too effectively provide enforced so toas a consis and thereafter he will not be rearrested. tent rule of law. The State’s interest would rearrest narrowly Hawkins is not by been better competent served de tailored to serve general real interest in termination of when eligi Hawkins would be specific deterrence. parole ble for place. the first The Parole Commission’s continually-shifting-yet-eontin- The State’s retribution is simi- ually-confident determinations aré larly not at all long ago weak. completed Hawkins his well-tailored to the effective enforcement of sentences for the underlay crimes that his sentencing provisions. adjudication as a habitual felon. And the may argued 6. It be years, Hawkins has not been for two to rearrest him and claim the injured, by but rather has received a windfall his injured was in error. Hawkins is deeply all, release: after if he up-front had been asked by fracturing family ties he striven has prefer whether he would to serve his full sen- reestablish, interruption of the career uninterrupted tence year or to serve it with a two begun, he has the destruction new middle, period likely of release in the he would himself, reliance, life he has made for all in have government unjust chosen latter. But it is years, on the Parole Commission’s determi- an inmate and allow him nation. "Even convicted criminals entitled are may begin anew, to believe that he then after he has his life government treated their in a fair and proven himself rehabilitated Johnson, straightforward manner.” 682 F.2d at holding job, down a reestablishing family ties integrating successfully community in the negligence, mere actions were parole until state’s Hawkins’s prohibited statute the defendant wrong, and where sentence, N.C. affirmative 75% of had served error); release was re- knew his continued 14-7.6, long since been § Gen.Stat. (holding that Lanier, F.Supp. at 947 after Hawkins’s Only four months pealed. to rearrest require- with a replaced had waived sentencing, it was him, through no offender serve a habitual had led that where it petitioner ment such sentence;7 Hawkins of own, his free of that he was years seven to believe least of his fault parole, his before attempt eleven about made no served prison sentence and his rearrest. more since four custody and has served over reacquire years to of number “com- more than been has punishment impo- His against the him), prohibition and by his injury ... caused” see, mensurate installments, e.g., of sentences sition cocaine. gram of delivery of the half and sale (recog- Merritt, n. 6 F.Supp. at 806-08 & see- still has in the State interest Whatever pro- prisoner principle that nizing “the by overwhelmed further is ing punished him being required to process from by due tected finality of his interest in crystallized his installments,” hold- and his sentence serve parole. of erroneous- rearrest an ing that the state’s be inconsistent prisoner in the rehabili- ly In fact State’s released likely to be prisoner principles substan- of tation with fundamental an- argues his reincarceration is entitled tially harmed that he justice). Hawkins has imprisonment. He other decades these alternative relief on corpus to habeas law- function that he can demonstrated find that the substan- we grounds. Because society. productive member abiding and Process Clause the Due guarantees of tive he will still parole, to If he is returned ad- directly, do not we have been violated reinternment by the governed threat estoppel, waiver the issues of dress requirements. any parole he violate should sentences. prohibition of installment likely not will long reincareeration But this already that has a rehabilitation improve his that argues further Hawkins only achieved, may fact discour- been proce right his violated reincarceration him, by teaching that age and embitter not al he was process because due dural upon to treat cannot be relied government hearing in parole-revocation at his lowed fairly. citizens but “difficult about his evidence troduce two-year-old rec- sum, during Carolina’s In North adjustment life civilian successful too late. error comes ognition of its did parole.” But Hawkins his time rights guaran- of Hawkins’s violation one, State’s a limited opportunity, albeit component of substantive teed parole revoca at his arguments these make survive strict cannot Process Clause Due case, the extent hearing. scrutiny. argument is not about him, substantive about the

afforded to but III. to revoke decision of the State’s basis a concern parole, it is pro- have examined Other courts To the extent above. process discussed erro- regards to an interests stake cess Morrissey v. argues Hawkins through doc- neously inmate released Brewer, 92 S.Ct. 408 U.S. Green, see, estoppel, e.g., trines of (1972), pro requires additional L.Ed.2d government estop the (refusing to at 1397 wishes when the State protections cedural with constructive rearresting an inmate from erroneously granted parole, to revoke mistaken); knowledge his release Teague Lane’s argument is barred Johnson, (estopping the F.2d at 871-73 pro of new creation against the prohibition erroneously rearresting an government review, 489 corpus rules on habeas see, cedural waiver, inmate), e.g., Camper, paroled 288, 310, 109 S.Ct. the U.S. where (finding waiver no too, replaced. been provision, has since 7. That (1989).8

L.Ed.2d 334 521 U.S. S.Ct. 2258 and (1997). L.Ed.2d 772 Though those decisions

IV. evoked a multiplicity opinions that reflect lingering disagreements within majori Court component The substantive of the Four- ties on proper methodology for assessing teenth Amendment’s Due Process Clause in- such particularly those involving ex claims— cludes a finality to the of a criminal ecutive action —I take them to establish or sentence, crystallized, once that sentence has reaffirm purposes for our following prop as described the Fourth Circuit in Lun- ositions. dien and parolee Cook. Where a is unaware that his granted erroneously, outset, 1. At that, remind as a so, reasonably successfully where he “ general proposition, we must be ‘reluctant reintegrates himself community into the expand the concept of substantive due substantially complies all of his process because guideposts responsible obligations years, for two his fundamental decision-making in this uncharted area are liberty finality of the scarce open-ended,’” and Glucksberg, 117 crystallized. decision By intentionally S.Ct. at (quoting Collins v. 2267 Harker depriving Hawkins of this liber- fundamental Heights, 115, 125, 1061, 503 U.S. 112 S.Ct. interest, ty the North Carolina Parole Com- 117 (1992)), L.Ed.2d 261 which means that mission power abused its “ degree to a that we, Supreme Court, like the ‘exercise must conscience, shocks the violating Hawkins’s the utmost care whenever we are asked to right to process. substantive due The deci- ground break new field,’ [Collins, in this 503 sion to contrary is, of the district court 125, 1061], U.S. at 112 S.Ct. lest therefore, protected by the Due Process Clause be sub- tly REVERSED AND transformed into policy preferences REMANDED WITH of [judges], INSTRUCTIONS TO [Moore GRANT PETI- City Cleveland, THE v. East of 494, 502, TION. 431 U.S. 1932, 97 S.Ct. 52 L.Ed.2d (1977)].” 531 Glucksberg, 2268; 117 S.Ct. PHILLIPS, Judge, Senior Circuit Lewis, see also 118 S.Ct. at (noting- 1714 dissenting: traditional reluctance of Court to expand con- cept). respect With all majority’s under- dismay standable at the course of administra- Where, here, 2. the claimed violation is bungling by tive state officials that this case by executive action rather than legislative reveals, I do not believe that the state’s re- enactment, judicial analysis should consider incarceration of petitioner this constituted a as a question” “threshold whether the execu violation of process due entitling substantive tive “egregious, action was so outrageous, so him to the release from custody that he fairly that it may be said to shock the' con Accordingly, seeks. I dissent. temporary Lewis, conscience.” S.Ct. at Courts considering any now claim of sub- not, 1717 n. If 8. it does the claim fails on process stantive due violation must look for does, account. If inquiry it must turn to

principal guidance Supreme to the Court’s whether claimed if right, not an enumer most recent deliverances on the meaning one, entitled, and ated is on the prece basis of proper judicial method of analysis of the dent or protections it, historical afforded concept County Lewis, judicial Sacramento v. recognition aas substantive due 833, 1708, 523 U.S. process L.Ed.2d to be free of such executive (1998), Washington Glucksberg, v. action. See id1 States, 8. The State’s claim argu- 614, all of 1604, 1610, Hawkins’s 523 U.S. 118 S.Ct. (1998), ments new are rules Teague and thus barred L.Ed.2d category which Hawkins's application meritless. The process substantive due substantive due claim is not a member. process holdings of Lundien and Cook new set facts is not the creation of newa rule. position 1. This is the taken in Justice Souter’s Teague only And prohibits imposition Lewis, of new opinion Court in in which he was habeas, procedural Bousley rules on see joined by v. United Rehnquist Chief Justice and Justices sufficiently culpability undertaken) (or of executive level required inquiry If con- contemporary “egregious” to “shock is entitled right asserted as to whether specificity at pro- the level due science” of substantive as one recognition rights are is one cess, question is whether asserted tradi- history, precedent and rights sought liberties which to be fundamental “those in this Na- are, ‘deeply rooted objectively, tion. ” Glucksberg, history tradition.’ tion’s here, methodology tightened Applying that Moore, 431 U.S. (quoting 117 S.Ct. can challenged conduct not believe I do “ 1932), ‘implicit in being so 503, 97 S.Ct. any substantive to violate declared liberty’ ... that ‘neither concept of ordered petitioner. by this right asserted if were exist justice would liberty nor quali- off, the conduct I not believe First do ” Palko v. Connecti- (quoting Id. sacrificed.’ required in the as a conscience-shocker fies 149, 326, cut, 58 S.Ct. 302 U.S. sense. (1937)). ques- And to answer L.Ed. 288 process— concept of due core of description’ of a “‘careful requires protection substantive —is procedural Id. liberty interest.” fundamental asserted government,” “arbitrary action against Flores, 507 U.S. (quoting Reno Lewis, at 1716 118 S.Ct. Wolff (1993)). McDonnell, 94 S.Ct. 418 U.S. avowedly de- methodology, prescribed This (1974)), “only most and 41 L.Ed.2d “shocks-the-con- threshold signed in its to be can be said conduct egregious official against “de- guard inquiry to science” ” Id. sense.’ ‘arbitrary in the constitutional tort a “font of to the Constitution moting]” Collins, 112 S.Ct. at 503 U.S. 8, and, in its Lewis, at 1717 n. law,” S.Ct. 1061). test is conscience” The “shocks inquiry, to “fundamental-liberty-interest” of identifying executive conduct at aimed that are elements subjective in the “rein appropri- and therefore culpability degree of judicial present due-process in necessarily antecedent, first, question ately poses the 2268, is a at review,” Glucksberg, S.Ct. conduct vio- particular any claim that about on Though it builds stringent one. most right. process due a substantive lated jurispru- process due previous substantive imprecise concededly a most is test The tighten the dence, clearly to me it seems to stick,” yard id. one, being “no calibrated “defining-up” by both screws doctrinal protection, would necessari- history but O'Connor, Breyer. of Kennedy, Ginsburg Lew- and understanding exec- of ly traditional reflect[ ] clearly "shocks-the- that the holds both is thus behavior, practice, of contemporary and vitality of in actions continued utive test has conscience” Id. to applied due blame them.” acts substantive of challenging on the standard executive be in it should process grounds those and special- Kennedy, point, Further on the Justice per- What is not test. applied as a “threshold” O’Connor, by concurring joined Justice ly and however, clear, to which fectly extent general skepticism expressing about after independently of applied test is to threshold any test, that he indicated "shocks-the-conscience" history, tradi- what relevant consideration indepen- wholly thought serve as a not it could say may to about precedent have tion and beginning in a only point test but dent protection. Sout- right Justice its and asserted history, tra- account process that take into must Court in the main for seems opinion er's "objective assessing the precedent in and dition inquiry independent threshold posit completely act. at 1722 challenged Id. character” culpability, and solely on the actor's that focuses Though Sout- concurring). (Kennedy, Justice J. precedent history, and tradition turn this, require Justice not opinion seemed er’s con- been found only the conduct after given its Kennedy “reasons” thought that the only to science-shocking, then determine and history, "not-shocking” indicated that conclusion history, precedent demon- and tradition whether sufficiently tak- precedent had and tradition one entitled asserted was strated concern. Id. to meet his into account en Lewis, protection. See substantive this, seeking that courts all I assume From however, Responding, 118 S.Ct. n. exec- methodology in faithfully apply the Lewis any continued use objection to Scalia’s Justice history may properly look to act utive cases relying test than rather a shocks-the-conscience customary execu- may reveal it about whatever protections to solely precedent and historical compara- responses judicial practices claims, tive Justice assess establishing way by context situations ble particular whether conduct allowed that Souter issue. conduct "may assessments conscience-shocking their be informed subjective and “laden with v. Brady, 316 U.S. 62 S.Ct. assessments,” id. at 1722 (Kennedy, (1942)). J. con- L.Ed. 1595 curring). surely gets But it at what has to step As a first in applying the test to the government be determined —-whether con- specific here, conduct at issue we should take duct simply “arbitrary,” has been without a look at how executive officials and courts And, judicial reason. guidelines some have generally may responded prob- to the emerged to out put flesh at least mini- lem of erroneously whether an pris- released mum degree bounds on the culpability oner should be Though reincarcerated. un- capture. seeks to likely to conclusively demonstrate Simple negligence never can suffice to executive act we assess was or was not “con- make executive conduct conscience-shocking science-shocking,” hence arbitrary in the sense, required no matter what sense, constitutional the response of other of- right infringed injury or the inflicted. Id. at ficials and courts when gen- confronted with 1718(eiting Cannon, Davidson v. 474 U.S. erally comparable problems might provide 344, 347-48, 106 S.Ct. 88 L.Ed.2d 677 helpful assessing context for culpability. (1986)). And while intended conduct is that See id. 118 S.Ct. at 1717n. 8. likely” test, “most to meet even that thing first suffice; cursory alone will revealed even the conduct must be look at the judicial available injure “intended to deci- way unjustifiable some sources— sions2 any government commentary academic interest." (emphasis Id. that—is added). government cases involving What the test identify seeks to failures to take convicted custody conduct criminals into prema- executive officials which involves “abusing ture power, prisoners releases employing are surprisingly [their] it as an oppression.” Collins, widespread instrument recurring 503 U.S. both the state omitted). penal 112 and federal systems. S.Ct. 1061 (quotation See Gabriel J. Chin, Finally, application Getting of this Out test “demands an Jail Free: Sentence of analysis circumstances,” exact Lewis, of Credit 118 Periods Liberty, Mistaken 45 for of “ S.Ct. at (1996) cases).3 Cath. may, ‘[t]hat because which (collecting in U.L.Rev. 403 setting, one constitute a denial not, of fundamen- erroneous release here there- was fairness, tal shocking fore, to the universal to Sense start unique with so an occurrence in justice, may, circumstances, of in other penal overall system and by administration as in light considerations, the of other fall short that fact suggest alone to arbitrariness the ” of such denial.’ Id. at 1719 Betts overall process. administrative 2. only Which of tip (2d course reveal 1979); of the what by 995 Cir. or is released one surely instances, larger ais set much of not all of jurisdiction jurisdiction a because second to litigation. which resulted in which time owes has failed file a to detainer. See, Ciccone, e.g., (8th v. Shelton 578 F.2d 1241 3. As a raw phe indication of the extent of the 1978) (defendant' Cir. custody released from state nomenon, commentary this academic identifies when a federal detainer should have been but cases, over running one such hundred back in lodged authorities). was not Finally, with state Broadly time to speaking, the cases in where, "early there are release cases” as in the volve following one or other of factual hand, error, case at some administrative a cases," "delayed scenarios. In incarceration prisoner prematurely paroled. released or governmental relevant authority timely fails See, e.g., (9th Williford, Johnson v. F.2d 868 682 See, take the custody. convicted criminal e.g., into 1982) (prisoner Cir. who was and convicted sen Martinez, United States v. 837 F.2d 861 tenced requiring under federal a statute a 1988) 10- (seven one-half-year delay Cir. and pris year possibility sentence minimum incarceration). without cases,” oner’s "detainer erroneously paroled). Although was prisoner these custody is either released from the categories cases, great jurisdiction account for the notwithstanding one bulk the fact that a See, neatly not e.g., all of the lodged valid cases fit into them. juris detainer been has a second diction, see, Nelson, Farley Bugg, e.g., Mo.App. Ex Parte 163 F.Supp. v. 145 S.W. 831 (D. (defendant Conn.) (Mo.Ct.App.1912) paroled (prisoner by Maryland intentionally released penitentiary custody custody suspended taken into federal from aon sentence because notwithstanding fact that two contracting federal detainers of fear that he was tuberculosis and 'd, Maryland authorities), were on file climate”). with to allow him to "seek change aff constitution- minimum cal difference between traditional Next, appear that it would levels). culpability and non-constitutional er- al once the practice executive contemporary routinely to incar- has been ror is discovered cases, category of overlapping In another claims cerate, rejecting any administrative that he be sought as relief prisoner therefore, Neither, freedom.4 entitlement remaining on his sentence given credit here, re- reincarcerate the decision See, in erroneous release. spent time claim, so much jecting the administrative Christiansen, F.2d 1397 v. e.g., Green practice as to customary executive odds with Merritt, (9th Cir.1984); v. States United alone. that account on arbitrariness suggest (D.D.C.1979). cases have These F.Supp. 804 here done what was to whether no relevance general indications these Looking past petitioner. asserted violated phenomenon extent of widespread remaining against his given credit in deal- He was practice executive and the traditional erroneous spent on time sentence have dealt the courts it to how ing with (see 34), is for release, his claim J.A. patterns that overlapping it, see several we outright release remedy of drastic the more purposes. for our differentiation require erroneously conditions under the eases, challenges rein- group of In one granted. and decided have made carceration categories of overlapping these two When theories part on non-constitutional whole of a possible as sources are excluded see, Williford, cases v. e.g., Johnson “estoppel,” claims (alternative Cir.1982) benchmark 868(9th shoeks-the-conscience F.2d Hawkins’s, only category re- one such sentence.” “improper installment ground), or con- of cases Pearlman, It consists F.2d mains. See, e.g., White (either sought release criminal has (10th Cir.1930); Dunne v. Keo victed generally see parole) erroneously granted (7th Cir.) (Posner, or to an outright hane, 14 336-37 pro- constitutional federal specifically prohibit rule C.J.) law that common (noting have decided courts grounds cess “delay[ing] expira ing government down, Interest- claims, on that basis. up or by postponing [its] either tion of sentence on consti- cases decided ingly, almost all the releasing pris ... or commencement based involved grounds claims him” tutional reimprisoning then oner for time theory of unique sub-constitutional command”), de on a cert. a “constitutional is not Usually jurisdiction.” traced 128 “waiver nied, 511 U.S. (5th Cir.1967), Beto, F.2d 1003 (1994). ap Shields decisions Because L.Ed.2d 900 by pro- notion that employs it the Active are not theories common plying law these who a convict longed failure to incarcerate question of any threshold concerned with held to time,” may be government it nothing to “owes they have culpability, executive do so blame,” jurisdiction” to have “waived standard[] “the contribute on circum- time and under certain point in in some Lewis, n. to be at 1717 used 118 S.Ct. stances, thereafter to incarcerate constitutional shoeks-the-con- applying the process.5 “jurisdiction” violates due 1717-18(noting without criti- See id. science test. (and Shields, theory finding of this 5. antecedents reported that the from the fact 4. is This inferred "implied pardon”) in a few one of a related exclusively) overwhelmingly (perhaps decisions cases, adopted it as state federal and earlier circuit law in case challenges to in prisoner to decisions concern reincar- a state had in which obviously is less incentive While there carcerate. years released prisoner after it had cerated challenge contested adminis government to and 18 to another in mid-sentence him incarcerate, chal not to such trative decisions paroled the him in years state had after the latter typical under lenges generally possible must any filing first state. the detainer absence See, e.g., In Re Haw agency procedures. review later, the occa years Circuit Fifth took Six the (hold (N.J.1984) ley, 484 A.2d 98 N.J. Estelle, Cir. Piper in sion right and prosecutor the authori ing has that the 1973), facially rule that broad in Shields cabin of the Parole ty appeal a decision prolonged principally on the seemed to rest 791.234(7) Board); § Comp. Ann. Laws Mich. inaction, emphasizing that government period of appeal- (“The ... parole board action eager pursuit” or "lack interest” "lack prosecutor-’’). ... able the held, "[r]ather,” ... Piper "the ac enough, affirmatively wrong [the] or be so must overwhelming In the majority of reincarcerate, cases sion to finding no violation of special process” which this theory “due the legal claimed constitutional invoked, rejected the claims have been remain free. Those that have found .viola- widely on their varying Only facts.6 a hand tions —even very that have found few. ful decisions found due viola violation of constitutional due.process right— tions on this basis.7 have done analyses so that did not ad- independent, dress as an “antecedent,” ques- Although apply these eases constitutional tion whether challenged decision to rein- process theory, provide do not carcerate sufficiently “egregious” to be serviceable benchmark applying “arbitrary in the constitutional sense.” Id. at threshold “conscience-shocking” test mandat- omitted). 1716 & n. (quotation 1717 8 None, course, ed Lewis. specifically Here, applies “antecedent”, therefore, indepen- test as an the test applied must be inquiry simply by government considering dent into culpability. any without benefit of Most, indicated, helpful guidance reject those external sources whether challenge on the the decision uphold was, facts. The few reincarcerate within challenges culpability are far threshold too few in overall test as mix most recently explained Lems, provide too any “shocking varied their facts to to] legal contemporary firm conscience.” required norm for Id. at 1717 assessing n. culpability level under Lewis’s threshold

test. I do possible not think it to make that judgment drastic

History precedent about this thus inform our decision. Con- sider inquiry except threshold with critical little circumstances before Parole administrative error that Commission whose decision to occasioned chal- revoke lenged the erroneously granted frequently decision is one too made in is the chal- lenged penal systems executive act. administration to raise presumption of arbitrariness “in the constitu- In 1981 Hawkins had been convicted in sense,” Lewis, tional (quo- North Carolina state court drug on a traf- omitted), occurs, tation whenever it ficking and that offense. previous Based on apparently practice routine executive Georgia convictions in of rape aggra- when the error has been discovered is to vated assault intent rape to commit reincarcerate, no matter what the circum- and a 1976 County, conviction Guilford stances. Judicial challenges decisions on North robbery, Carolina for armed he was such provide executive decisions legal no firm sentenced as an habitual felon to 50 norm or applying benchmark for the test. imprisonment and to a 10-year concurrent upheld Most fact have the executive deci- drug sentence on trafficking offense. grossly negligent 1991) inaction so (same), denied, (unpublished) that would be cert. 502 U.S. unequivocally inconsistent with fundamental (1991); 112 S.Ct. 116 L.Ed.2d 261 principles justice require [that (M.D.La. Sterling Maggio, F.Supp. (quota- sentence] be served....” Id. at 246 1981) (same); (same); Farley, F.Supp. 469 796 omitted). Piper's tion formulation of the “waiv- Ciccone, Bailey (W.D.Mo. F.Supp. v. 420 344 theory ordinarily er” has been that invoked 1976) (same); Estelle, Esquivel F.Supp. v. 426 claimants and courts since that time. (W.D.Tex.1976) (same), aff'd, 619 547 F.2d 309 (5th Cir.1977); Beto, F.Supp. v. 298 1384 Clifton Norris, (8th Camper 6. See v. 36 F.3d 782 Cir. (S.D.Tex.1968) (same), grounds, on other aff'd 1994) against facts); (finding prisoner on the (5th Cir.1969); 411 F.2d 1226 Vann, United States v. Martinez, (same); Mobley Dug 861 v. (E.D.N.Y.1962) (same); F.Supp. 207 108 (11th ger, Cir.1987) (same); 823 F.2d 1495 Brandt, (N.D.Ill. United States v. 1987 WL 16235 Green, (same); 732 1397 Pierpont, F.2d v. Mathes 1987) (same). Aug.26, (unpublished) (8th Cir.1984) (same); 725 F.2d 77 Patterson v. (6th Cir.1996) 1996 (unpub O’Dea. WL 554564 Shields, lished) (same); Hambrick, (finding 7. See prisoner 370 F.2d 1003 v. for Hallums 1994 WL facts); Johnson, (6th 1994) (same), (same); (unpublished) 279394 denied, on the 682 868 Cir. cert. 1169, Williams, 1143, (E.D.N.C. F.Supp. 513 Lanier v. U.S. 115 361 944 S.Ct. 130 (1995); Whalen, 1973) (same); Shelton, L.Ed.2d 1102 Mistretta (granting 578 F.2d 1241 (7th 1993) (same); WL (unpublished) Cir. evidentiary hearing defendant on issue of waiv Smith, er). Christian v. WL Cir. compa- by manufacturing Simmons, skilled laborer N.C.App. See 26.) (See worked He had at ny. At the id. (N.C.Ct.App.1982). 898, 900 S.E.2d job evaluations good other and with regularly record of time, had an extensive during period, convictions, no some under violated laws and had and arrests com- “Simmons,” to 1967. some dating fallen behind back but had surname pay- larce and fee obligations munity conviction service a 1967 These included (See id. program. conviction receiving; required a 1969 ny and ments female; 246.) 20-24, conviction a 1978 on a assault release; grand a 1976 escape from work custody by order into taken back He was degree rape that charge of jury second 1994 it when in the Parole Commission dismissed; Delaware a 1975 was had not been his release was realized was nol resisting arrest charge of 34.) And, (See id. at by law. authorized 203-4.) (See 161-62; J.A. prossed. hearing with counsel affording him a after years of having eleven served after was to status his return at which sentence, errone he had been 50-year his grounds, legal and humanitarian urged on recently enacted under a ously paroled 120-21), 29-30, (see the Commission id. at de program, Community Parole Service or- parole and formally his revoked over prison part alleviate signed in (See id. at reincarceration. dered his not in fact he was crowding, for which 34.) at the prison record eligible. His overall deci- Parole Commission’s To declare one, only a few good time had been outrageous” as to “egregious so sion imprison infractions, during his rule under contemporary conscience” “shock degree a bachelors had obtained ment he circumstances, have to be- we would these from Shaw Uni management in business by some- infected or driven that was lieve it (See study id. program. versity under a blameworthy thing much worse —more —than 200.) compas- proper negligence or lack mere in 1992 was based erroneous release His might invoke or than of fairness sion or sense Analyst’s recommenda- Parole Case on a fair estoppel or principles of common law he had of time cited the amount tion that hold the the like to procedure or criminal crisis, overcrowding served, prison keep things in constitu- To to its error. prison rule Hawkins’s none of fact that in it a have to see proportion, we would tional assaultive, that he the fact infractions power,” or deliberate “abus[e of] mindless improve his situa- effort had made some op- “as instrument power exercise that he and the fact prison, tion while Collins, U.S. pression,” supervision intensive placed omitted), power exercised (quotation pro- Community Parole Service under justification in the any reasonable “without 200.) (See The recommenda- gram. id. at objec- governmental legitimate service of had, however, there was noted that Lewis, tive,” 118 S.Ct. at releasing Hawkins concern” about “some the Parole Commission’s believe I do not “history sexual assaultive his meeting as one be characterized (Id.) decision can had been That concern behavior.” test. constitutional threshold stringent by a the record expressed for Parole/Pro- suggests element Nothing strong op- about indicated his officer who bation simply power or of exercised release vindictiveness position Hawkins’/Simmons’ govern- legitimate oppress. There were aware- personal upon the officer’s based objectives a-plenty history ex- mental interests of his criminal ness in ad- an It error justify a “career the act. rectified he was pressed opinion law, parole applicable ministering to commit will continue criminal who street prison.” furthering state’s fundamental thereby out of the he is crimes once street (Id. 156.) application of its laws. in correct interest at risk of so, precedential avoided the doing it his re- two-year period of During the of state irregular enforcement in acquiescing his brother lease, lived with Hawkins had secure under more It an un- law. reincarcerated continuously employed as and been custody recognized high-risk prisoner protected by erro- component of neously released program under a driven (differenti- the Due Process Clause. See id. largely exigencies prison crowding un- issues). ating the majority Because a public to the security related in has, panel however, held that the conduct against specific posed. risk he was conscience-shocking, thereby raising the issue, further I briefly and, address it with While the leading up conduct Commission’s respect, again disagree the majority. with including to and parole erroneous release on bungling every step, at it could not at My reasons can given be simply and brief- stage be anything characterized as but ly. Based upon the historical evidence earli- simple negligence. And, end, in the discussed, er I do not liberty believe the negligent course of nothing conduct had to do interest asserted remaining here —that of parole actually granted revocation free on erroneously granted parole long so as far in advance of the release dates parolee did not contribute to the error about which Hawkins was neg- several times appreciable has for an time remained on ligently misinformed. While the Commis- good point behavior that his expecta- sion’s bungling course of pretty is not a tions for continued release from incarceration picture, it has no bearing upon ques- real “crystallized”8 one that can said —is tion whether revocation of completely to be “deeply rooted in this history Nation’s unpredicted earlier was conscience- and traditions.” Glucksberg, 117 at S.Ct. shocking. Moore, (quoting U.S. Finally, while undoubtedly revocation 1932). Certainly S.Ct. impos- would seem regrettable harsh and consequences for say sible to such an interest that it is one erroneously Hawkins’s expectations, created of those “‘implicit so in the concept or- not, fortunately, it did interrupt any third dered liberty,’ ... that ‘neither liberty nor party dependency relationship ” established justice exist if were sacrificed.’ And, though interim. Hawkins had not Palko, Id. 325, 326, U.S. engaged during criminal conduct 149). S.Ct. history What and tradition seem period of his release under the “intensive to indicate in their light petitioner best supervision” of his parole, surely could that claims of such a have been routine- thought not be oblige the Commission to rejected ly when made to executive branches safely see in this demonstrated rehabilita- government, occasionally, always, but not tion from pattern Hawkins’s established of upheld by courts when advanced under com- assaultive behavior custody. while not in full mon law estoppel, theories such as and al- Certainly a declination to do so could not be always rejected by most courts when ad- thought to op- demonstrate arbitrariness as vanced on constitutional grounds. For that posed to reasoned judgment. reason, I do not believe that under current Because I do not believe that the Parole Supreme jurisprudence Court as most re- Commission’s decision can be declared “so cently eiq>lieated in Glucksberg, the interest egregious, so outrageous ... [as] to shock asserted here could be considered one enti- contemporary conscience”, Lewis, see 118 tled to substantive due protection.9 1717 n. I would affirm on that ground the district peti- court’s denial of the holding,

tion. I So would not reach more issue beyond:

fundamental that lies whether specific right asserted here even con- liberty

cerns a interest so fundamental that it seems to descrip time, (see This me fair and passage 11), "careful Appellant's Br. at tion” of the surely ground amorphous concept upon "fundamental interest” assert petitioner litigation. right, particularly ed constitutional as See Glucks one jealously guarded against subjective berg, expansion (noting necessity S.Ct. at for such process. substantive due "description” making inquiry). historical A feature critical of the interest as asserted is its Lundien, 9. Hawkins's reliance on United States v. "crystallized” expectations basis in created Cir.1985), (4th denied, 769 F.2d 981 rt. ce AUTOMOTIVE,

ATHENA

INCORPORATED,

Plaintiff-Appellee, DiGREGORIO; & DJ J.

John

Automotive, Incorporated,

Defendants-Appellants. 98-1446.

No. Appeals, Court

United States Circuit.

Fourth 27, 1998.

Argued Oct. Jan.

Decided erroneously prisoner released (1986), ent situation 88 L.Ed.2d 106 S.Ct U.S. Cook, Cook Lundien nor we consider. Neither States and United Cir.1989), precedent inquiry now establishing rigorous circuit as historical undertook right misplaced. specif- Those by Gluclcsberg of such the existence whether the into mandated challenges finality— considered cases constitutional they posited of sentence right ic —that their sentences after power courts to increase history sufficiently tradi- rooted was one cases, the courts imposition. both formal posited due of substantive as to be enforced one crystal point prisoner’s some undertaken, inquiry been had that process. And sentence expectations the duration of lized one, entirely different it would have give process rise to a due imposed could as required subject concerning a different than right to such finality, found no but both to its have Cook therefore Lundien and case. Lun See facts of the cases. arisen on the persuasive say, nothing precedent either Cook, 987; dien, F.2d at 675. dicta, sufficiently lib- different whether the about assump that the from the fact Aside is entitled erty asserted Hawkins in view cases were dicta in those made tions history tradition to substantive taken to holdings, could specific their protection. quite differ- dicta in persuasive apply even as

Case Details

Case Name: Hawkins v. Freeman

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 26, 1999

Citation: 166 F.3d 267

Docket Number: 96-7539

Court Abbreviation: 4th Cir.