Winston HOLLOWAY, Plaintiff-Appellant, v. Benny MAGNESS, Chairman, ADC Board; Ray Hobbs, Director, Arkansas Department of Correction; Rex Gaylon Lay, Warden, Cummins Unit, ADC; Global Tel*Link, Defendants-Appellees.
No. 11-1455
United States Court of Appeals, Eighth Circuit
Submitted: Sept. 20, 2011. Filed: Feb. 2, 2012.
666 F.3d 1076
Though Nupdal‘s affidavit stated that she directed her counsel to appeal, she repeatedly admitted during her testimony at the hearing on her motion to vacate that she had not in fact instructed her attorney to appeal, and her parents testified that although they met with Nupdal‘s attorney following the sentencing hearing, they also did not instruct the attorney to appeal. “A bare assertion by the petitioner that she made a request is not by itself sufficient to support a grant of relief....” Id. The judge at a hearing on a motion to vacate is entitled to determine what version of facts presented is most credible. See Rodriguez v. United States, 964 F.2d 840, 842 (8th Cir.1992) (per curiam). Nupdal‘s affidavit not withstanding, the district court credited Nupdal‘s hearing testimony and the testimony of her parents that her attorney was not instructed to appeal. We hold that the district court did not clearly err in making this finding.
In addition to alleging ineffective assistance of counsel, Nupdal claims that she was effectively denied an evidentiary hearing on the issue. Specifically, Nupdal argues the hearing was deficient because her attorney did not testify and she was unable to cross-examine him. We reject this contention. First, Nupdal could have subpoenaed her attorney to ensure that he testified at the hearing.
II.
For the foregoing reasons, we affirm the district court‘s denial of Nupdal‘s motion to vacate.
Before LOKEN, BEAM, and MURPHY, Circuit Judges.
LOKEN, Circuit Judge.
Under a contract with the Arkansas Department of Correction (ADC), Global Tel*Link (GTL) provides telephone service to ADC inmates and pays ADC 45% of GTL‘s gross revenues. Inmate Winston Holloway commenced this
ADC inmates may not receive telephone calls from family members or friends and may not make calls using prepaid phone cards or cellular phones. Instead, they are allowed to make collect calls using funds deposited into their prepaid call accounts. The contract at issue provides that GTL is the exclusive provider of this phone service, charging inmates for each collect call on a surcharge and per minute basis. The contract also authorizes GTL to collect a fee equal to 19% of all funds deposited into the prepaid accounts. GTL pays 45% of its gross revenues under the contract to ADC. The commission payments to ADC have totaled more than $2 million per year. As GTL pays all costs associated with providing telephone service to inmates, ADC uses these commission revenues for other prison expenses, such as prison security and facility maintenance.
As the district court explained in detail, Arkansas is one of many States that have granted private companies exclusive rights to provide telephone service to inmates in exchange for a percentage of the revenues generated by that service. These contracts have been criticized by the Federal Communications Commission and by others because they allegedly create, for both parties, an unrestrained incentive to increase the cost of telephone service to inmates. Numerous lawsuits have challenged the practice, asserting claims under the
Holloway‘s challenge is based upon three propositions: (1) Inmates have a First Amendment right to communicate with persons outside the prison. (2) Because ADC has chosen to provide telephone service to inmates, any limitation on the use of that service is subject to First Amendment scrutiny. (3) Because ADC incurs no cost in providing telephone service under the contract, the 45% commission is an arbitrary revenue-raising measure that is not reasonably related to legitimate penological interests and therefore infringes his First Amendment rights under either the balancing test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), or a more heightened standard of scrutiny that should be applied to this issue.
Support for the first proposition may be found in the dicta of many reported decisions. See, e.g., Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir.) (“in some instances prison inmates may have a right to use the telephone for communication with relatives and friends“), cert. denied, 493 U.S. 895, 110 S.Ct. 244, 107 L.Ed.2d 194 (1989); Watts v. Brewer, 588 F.2d 646, 649-50 (8th Cir.1978). But it is a perilous over-generalization. The nineteenth century saw the rise of prison systems that “placed maximum emphasis on preventing the prisoners from communicating with anyone else.” Overton v. Bazzetta, 539 U.S. 126, 143, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) (Thomas, J., concurring) (quotation omitted). Whether a prison system that totally isolated inmates from the outside world, with express statutory authority to do so, would pass constitutional muster today has never been litigated. Fortunately, modern prison administrators believe that properly controlled inmate contacts with persons outside the prison walls such as family members serve important interests, including improved prison security and inmate rehabilitation, as well as the inmates’ First Amendment interests. Thus, the reported cases deal with challenges to a variety of restrictions and limitations on inmate contacts that are otherwise encouraged. In other words, the extent of inmates’ First Amendment right to communicate with the outside world is a fact-intensive universe. See, e.g., Roy v. Stanley, 110 Fed.Appx. 139, 141 (1st Cir.2004) (unpublished) (“Prisoners have no per se constitutional right to use a telephone.“); Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002), cert. denied, 538 U.S. 1047, 123 S.Ct. 2110, 155 L.Ed.2d 1087 (2003).
The second proposition is doubtless true, but it does not address the issue before us. It is a corollary of the more general First Amendment principle that, if the government chooses to create a public forum for speech, whether a general or a limited public forum, it may not unreasonably restrict the public‘s use of that forum. But that principle does not include a mandate to create any particular type of public forum, such as providing inmates with telephone service, nor does it address the terms upon which government as proprietor may recover the costs of creating the forum, including a reasonable return on its investment. Cf. Arsberry, 244 F.3d at 564-65.
These general observations bring the fallacy in Holloway‘s third proposition into sharper focus. Just as ADC had no First Amendment obligation to provide
The answer is no different if we look at the contract commissions as a “restriction” on speech, rather than what they are, part of the total cost of facilitating speech. Because the Constitution “permits greater restriction of [First Amendment] rights in a prison than it would allow elsewhere,” restrictive prison regulations are normally reviewed under the four-factor Turner test to determine whether they are “reasonably related to legitimate penological interests.” Beard v. Banks, 548 U.S. 521, 528, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006), quoting Turner, 482 U.S. at 87. The district court properly conducted a Turner review but correctly noted, “It is not at all clear that the Turner framework applies.” Holloway, 2011 WL 204891, at *8.
The first Turner factor—whether there is a reasonable relationship between the prison regulation and a legitimate penological interest—does not readily fit when the First Amendment challenge involves, not a restriction on inmate speech, but rather the amount charged for a service that facilitates inmate speech. Obviously, there is a “valid, rational connection” between the legitimate government interest in providing telephone service, and determining what to charge for that service. Turner, 482 U.S. at 89. Likewise, the third and fourth Turner factors—the impact of a restriction on guards and inmates and the presence or absence of alternative restrictions—have little or no bearing on what inmates are charged for telephone service.
The second Turner factor—whether alternative means of speaking remain open to inmates—is relevant to this dispute. But the issue is not whether higher phone charges discourage speech, but rather “whether inmates have alternative means of exercising the constitutional right they seek to assert.” Overton, 539 U.S. at 135. Alternatives to the type or amount of speech at issue “need not be ideal... they need only be available.” Id.; see Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 130-31, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (losing the cost advantages of bulk mail “does not fundamentally implicate free speech values“). Here, the record makes clear that ADC inmates retain many alternative means of communicating
For these reasons, we affirm the judgment of the district court. We decline to consider GTL‘s alternative argument—rejected by the district court—that the primary jurisdiction and filed rate doctrines bar Holloway‘s First Amendment claim.
Sharon K. PALMER, on behalf of herself and all others similarly situated, Appellant, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellee. Sandra Kluessendorf, on behalf of herself and all others similarly situated, Appellant, v. Progressive Preferred Insurance Company, Appellee. Michael Hara, on behalf of himself and all others similarly situated, Appellant, v. USAA Casualty Insurance Company, Appellee. David Johnson, on behalf of himself and all others similarly situated, Appellant, v. American Family Mutual Insurance Company, Appellee.
Nos. 11-2061, 11-2064, 11-2065, 11-2067.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 13, 2011. Filed: Feb. 2, 2012.
666 F.3d 1081