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USCA1 Opinion
September 2, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2436
DAVID A. JOSSELYN,
Petitioner, Appellant,
v.
RONALD POWELL, ET AL.,
Respondents, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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David A. Josselyn pro se on Application for Certificate of
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Probable Cause.
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Per Curiam. Pro se prisoner David Josselyn seeks a
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certificate of probable cause to appeal the district court's
summary denial of his petition for habeas corpus. Josselyn
is presently incarcerated in Massachusetts. He is serving
Massachusetts and New Hampshire prison sentences. His habeas
petition names the Warden of the New Hampshire State Prison
and the Commissioner of the New Hampshire Department of
Corrections as respondents. The habeas petition seeks to
compel the New Hampshire respondents to restore certain good
time credits which Josselyn was compelled to forfeit from his
New Hampshire prison record following a September 1989 escape
attempt from the Massachusetts Correctional Institution
(M.C.I.) at Norfolk. After this escape attempt, Josselyn
was subjected to internal disciplinary proceedings instituted
by the Massachusetts Department of Corrections (MA-DOC). The
MA-DOC sanctioned Josselyn by requiring him to forfeit 500
good time credits.1 In contrast, the New Hampshire
Department of Corrections (NH-DOC) compelled Josselyn to
forfeit all of the good time credits he had earned thus far
on his New Hampshire prison sentence. Josselyn's habeas
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1. The MA-DOC also punished Josselyn with 15 days of
isolation, 2 years in segregation, and reclassification to a
higher security prison. Josselyn filed a 42 U.S.C. 1983
action against various Massachusetts prison officials which
challenged, inter alia, the disciplinary proceedings which
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resulted in his loss of 500 days of good time credits in
Massachusetts. This court affirmed summary judgment for
those defendants in Josselyn v. Poirier, et al., slip op. No.
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92-1014, (1st Cir. July 27, 1992).
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petition alleged that the NH-DOC's action violated the Double
Jeopardy Clause and his right to procedural due process
insofar as the action was taken without advance notice to
Josselyn and an opportunity to defend himself.
To justify the issuance of a certificate of probable
cause, the petitioner must "make a 'substantial showing of
the denial of a federal right.'" Barefoot v. Estelle, 463
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U.S. 880, 893 (1983)(quoting Stewart v. Beto, 454 F.2d 268,
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270 n. 2 (5th Cir. 1971), cert. denied, 406 U.S. 925(1972)).
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"[I]n order to make a substantial showing of the denial of a
federal right a petitioner who has been denied relief in a
district court '"must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
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the issues [in a different manner]; or that the questions are
'adequate to deserve encouragement to proceed further.'"'"
Lozada v. Deeds, 111 S. Ct. 860, 863 (1991) (citations
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omitted).
We have thoroughly reviewed the record and Josselyn's
memorandum to this court and conclude that Josselyn has
failed to make a substantial showing that he has been denied
a federal right. The Double Jeopardy Clause does not apply
to prison disciplinary proceedings. Rather, the Supreme
Court has indicated that the Double Jeopardy Clause applies
only to criminal and quasi-criminal proceedings. See, e.g.,
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Breed v. Jones, 421 U.S. 519, 528 (1975)("The risk to which
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the [Double Jeopardy] Clause refers is not present in
proceedings that are not 'essentially criminal.'")(citation
omitted). See also Wolff v. McDonnell, 418 U.S. 539, 556
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(1974)("Prison disciplinary proceedings are not part of a
criminal prosecution..."). Josselyn was not technically in
jeopardy when the MA-DOC instituted administrative
disciplinary proceedings against him for his escape attempt.
It follows that Josselyn also was not in jeopardy when the
NH-DOC decided that he must forfeit all of his good time
credits for the same offense. This result is supported by
case law which indicates that the fact that a prisoner's
conduct results in administrative disciplinary proceedings
and sanctions does not bar a subsequent criminal prosecution
of the prisoner for the same conduct. See, e.g., Fano v.
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Meachum, 520 F.2d 374, 376 & n.1 (1st Cir. 1975), reversed on
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other grounds, 427 U.S. 215 (1976); United States v. Rising,
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867 F.2d 1255, 1259 (10th Cir. 1989); Kerns v. Parratt, 672
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F.2d 690, 691-92 (8th Cir. 1982)(per curiam); Commonwealth v.
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Sneed, 3 Mass. App. Ct. 33, 34-35 (1975).
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If the Double Jeopardy Clause does not prohibit
Josselyn's criminal prosecution for attempted escape, then it
likewise cannot prohibit a second administrative sanction by
the NH-DOC. This sanction is not properly considered a
double punishment for the same disciplinary infraction.
Further, since Josselyn is serving Massachusetts and New
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Hampshire prison sentences concurrently, his escape attempt
was an offense against each sovereign. Nothing in the
Federal Constitution prevents New Hampshire from punishing
Josselyn for this offense.2
Josselyn's second claim is that the NH-DOC violated his
right to procedural due process by automatically imposing the
forfeiture of his good time credits in his New Hampshire
prison record without first affording him notice of the
charge against him and an evidentiary hearing where he could
defend himself. Josselyn maintains that New Hampshire has
created a liberty interest that gives him the right to be
free from punishment in excess of that imposed by the MA-DOC.
This liberty interest is said to derive from the Information
and Data Sheet for New Hampshire Inmates Not Housed at New
Hampshire State Prison, Habeas Petition, Exhibit A.3
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2. Josselyn maintains that New Hampshire can only punish him
if his escape attempt occurred in New Hampshire. We are
aware of no authority supporting his position and do not
credit it.
3. The Information Sheet states:
3. Rules and Regulations: You will be
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required to follow the rules and
regulations that exist in the facility
where you are confined. The behavior,
dress, work, pay, visiting, and all the
other rules apply to you and you are
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subject to the disciplinary system in
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place at that facility, including
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whatever punishments are imposed for
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violations. You should try hard to
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establish a good work and conduct record
at that facility since the reports
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New Hampshire RSA 651-A:22(IV)(b) authorizes the New
Hampshire Commissioner of Corrections to subject a prisoner
to the loss of "all or any portion of" his good time credits
for "[a]ny serious act of misconduct". This language is
arguably sufficient to give Josselyn a liberty interest in
his New Hampshire good time credits in that it requires a
"serious act of misconduct" before the Commissioner may
compel their forfeiture. Wolff v. McDonnell, 418 U.S. 539
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(1974), established that "due process requires procedural
protections before a prison inmate can be deprived of a
protected liberty interest in good time credits."
Superintendent, Mass. Correctional Institution at Walpole v.
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Hill, 472 U.S. 445, 453 (1985). We will thus assume that
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Josselyn was entitled to advance notice of the charge against
him, an opportunity to present a defense, and a written
statement by the factfinders as to the evidence relied upon
and the reasons for the disciplinary action. Wolff v.
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McDonnell, 418 U.S. at 553-67. But Josselyn overlooks the
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fact that he received notice of the attempted escape charge
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received from your facility will be
reviewed and considered by the New
Hampshire Parole Board and any other
review agencies.(emphasis supplied).
Josselyn contends that the emphasized language means that the
NH-DOC could not require him to forfeit any more than 500
good time credits because that was the sanction imposed by
the MA-DOC. The liberty interest Josselyn claims under this
paragraph is the interest to be free from punishment that
exceeds the punishment that was imposed by the MA-DOC.
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and a disciplinary hearing where he could present a defense
in Massachusetts. See Habeas Petition, Exhibit D (the
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Massachusetts disciplinary report and findings thereon). The
NH-DOC apparently relied on the MA-DOC's findings in
determining that Josselyn must forfeit all his good time
credits. The advance notice and hearing Josselyn received in
Massachusetts is sufficient to satisfy New Hampshire's
obligation to afford Josselyn these procedural due process
protections before deducting good time credits for his escape
attempt.
The record is unclear as to whether the NH-DOC gave
Josselyn a statement of reasons for imposing the forfeiture,
but Josselyn unquestionably learned of the forfeiture and had
an opportunity to challenge it through correspondence to the
New Hampshire prison authorities. Exhibit E to the habeas
petition includes two letters sent to Josselyn from,
respectively, the Acting Warden for the New Hampshire State
Prison and a Staff Attorney at the NH-DOC. These letters
suggest that Josselyn challenged the forfeiture after he
learned of it and that the NH-DOC determined that his
contentions were meritless. The letter from the Acting
Warden informed Josselyn that New Hampshire law provided that
the loss of all good time was punishment for attempted
escape. The letter from the Staff Attorney reiterated that
escape and attempted escape were treated similarly under RSA
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651-A:22(IV)(b) and further informed Josselyn that, under an
interstate agreement, Massachusetts could affect Josselyn's
New Hampshire good time credits so long as New Hampshire
ratified the acts of the Massachusetts authorities.4
Josselyn thus received an explanation for the forfeiture. He
also appears to have had an opportunity to challenge the
forfeiture, although that opportunity may only have arisen
after the forfeiture had been recorded on Josselyn's New
Hampshire prison record. Under these circumstances, Josselyn
appears to have received all the process he was due.
Josselyn further complains about the extent of his
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punishment in New Hampshire. He contends that the Information
Sheet, quoted supra at n. 2, gives him a liberty interest
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which effectively bars the NH-DOC from imposing a punishment
in excess of that imposed by the MA-DOC. But the Information
Sheet does no such thing. In order to create a liberty
interest, prison regulations generally must employ mandatory
language in connection with specific substantive predicates
that limit the discretion of prison officials to transfer or
punish an inmate. See, e.g., Parenti v. Ponte, 727 F.2d 21,
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24 (1st Cir. 1984)(citing Hewitt v. Helms, 103 S. Ct. 864,
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4. Josselyn contends that this letter mischaracterizes New
Hampshire as the "sending state." We think the point is
specious. While New Hampshire might have been the "receiving
state" when Josselyn was first extradited there for trial in
1986, it is the "sending state" insofar as Josselyn's prison
sentence is concerned.
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871 (1983)). The Information Sheet simply states that New
Hampshire inmates housed at other institutions are subject to
the disciplinary system at the facility wherein they are
incarcerated. The Sheet in no way purports to limit the
discretion vested in the New Hampshire Commissioner of
Corrections concerning the forfeiture of good time credits
under RSA 651-A:22(IV)(b). Thus, the Information Sheet does
not give Josselyn the liberty interest he claims.
In short, Josselyn's habeas petition and its
attachments do not suggest that he has suffered a double
jeopardy or procedural due process violation. Accordingly,
the application for a certificate of probable cause is denied
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and this appeal is terminated.
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Document Info
Docket Number： 92-2436
Filed Date： 9/2/1993
Precedential Status： Precedential
Modified Date： 9/21/2015