Bird v. Hill ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 21, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
CHESTER L. BIRD,
Plaintiff - Appellant,
v. No. 20-8035
(D.C. No. 2:20-CV-00037-NDF)
BRIDGET L. HILL, Attorney (D. Wyo.)
General, State of Wyoming,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYKMOVICH, Chief Judge, HOLMES, and BACHARACH,
Circuit Judges.
_________________________________
This appeal involves a constitutional challenge to a Wyoming law
requiring prisoners to save some of their earnings. Wyo. Stat. Ann.
§ 7-16-205(a)(i). The requirement is designed to provide a monetary start
to prisoners upon their release. Nicodemus v. Lampert, 336 P.3d 671, 673
*
We conclude that oral argument would not materially help us to
decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
(Wyo. 2014). But release is unlikely for some prisoners, like those
sentenced to death or life imprisonment without parole. So the Wyoming
statute exempts these prisoners from the requirement. Wyo. Stat. Ann.
§ 7-16-205(a)(i).
Mr. Chester Bird wasn’t sentenced to death or life-without-parole,
but he is unlikely to ever get out of prison. He was convicted of rape and
kidnapping and sentenced to “life according to law.” This sentence
prevents him from ever getting parole. Wyo. Stat. Ann. § 7-13-402(a).
Of course, Mr. Bird has at least some chance of obtaining release
through a pardon or sentence commutation. See Wyo. Stat. Ann.
§ 6-10-301. Despite these possibilities, Mr. Bird opposes the state’s
requirement to save some of his earnings. So he sued in state court,
claiming that application of the law to him would violate his right to equal
protection because other similarly situated prisoners are exempt.
The Wyoming Supreme Court rejected the claim, reasoning that
 Mr. Bird’s status differs from inmates sentenced to life without
the possibility of parole because he is eligible for commutation
and they aren’t and
 savings could inspire good behavior by improving Mr. Bird’s
chances for commutation.
Bird v. Wyo. Bd. of Parole, 382 P.3d 56, 63 (Wyo. 2016); see Nicodemus,
336 P.3d at 675 n.7 (A savings “account may provide an added incentive
for an inmate to conduct himself to show he is worthy of commutation.”).
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Dissatisfied with this reasoning, Mr. Bird sued in federal court,
claiming that the Wyoming statute is unconstitutionally vague and
overbroad and denies substantive due process. The district court dismissed
the suit based on res judicata, reasoning that Mr. Bird could have raised
these claims in his state-court suit.
Mr. Bird appeals, arguing that the law changed between his two suits
when the Wyoming Supreme Court decided Davis v. State, 415 P.3d 666(Wyo. 2018). Davis invalidated a juvenile’s sentence of life imprisonment,
reasoning in part that the remote possibility of release left him without
hope. 415 P.3d at 693.
The district court rejected Mr. Bird’s argument, and we conduct de
novo review. Clark v. Zwanziger, 741 F.3d 74, 77 (10th Cir. 2014).
Through such review, we conclude that the district court didn’t err.
We can assume for the sake of argument that a change in the law
might relieve Mr. Bird of res judicata. See Nitchman v. State, 428 P.3d
173, 176 (Wyo. 2018) (a party can avoid res judicata by showing that good
cause prevented earlier assertion of the claim or that the interests of justice
require consideration of the claim). But Mr. Bird hasn’t identified a
pertinent change in the law. He claims that state authorities have deprived
him of due process and applied a statutory requirement that is overly broad
and vague. But Davis did not address these legal theories.
3
Mr. Bird points out that in his direct appeal, the Wyoming Supreme
Court reasoned that the state legislature could rationally use the savings
requirement to incentivize good conduct for prisoners serving life-
according-to-law sentences and hoping to get a commutation. Bird v. Wyo.
Bd. of Parole, 382 P.3d 56, 63 (Wyo. 2016). He argues that this reasoning
was undermined in Davis. There the Wyoming Supreme Court concluded
that prisoners sentenced to life imprisonment had “no hope of release,” so
their “good behavior and character improvement [were] immaterial.” 415
P.3d at 693, 695 (quoting Graham v. Florida, 560 U.S. 48, 70 (2010)). But
this change does not affect the law underlying Mr. Bird’s claims involving
substantive due process, vagueness, and overbreadth.
Mr. Bird alleges a deprivation of substantive due process from
Wyoming’s requirement for prisoner savings. When a plaintiff challenges a
statute based on substantive due process, “we ask whether a fundamental
right is implicated.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1182
(10th Cir. 2009). If not, the statute must simply “bear a rational relation to
a legitimate government interest.” Id. at 1181. When considering the
existence of a rational relation, we examine the statute as a whole, not as
applied, for a “law need not be in every respect logically consistent with
its aims to be constitutional.” Williamson v. Lee Optical of Okla. Inc., 348
U.S. 483, 487-88 (1955).
4
Mr. Bird has not shown the implication of a fundamental right, so we
review the statute for a rational basis. Davis might undermine the purpose
of the savings requirement for Mr. Bird, but the purpose would remain
intact for many other prisoners. So the remoteness of his own chance for
commutation does not implicate Davis on the claim of substantive due
process.
Mr. Bird also claims vagueness and overbreadth. But Davis did not
change the meaning of Wyo. Stat. Ann. § 7-16-205(a)(i), so Davis didn’t
affect Mr. Bird’s claim that the statute is vague and overbroad.
* * *
Even if a change in the law could prevent res judicata, Davis didn’t
change the pertinent law on Mr. Bird’s claims. We thus affirm the
dismissal of his federal suit.
Entered for the Court
Robert E. Bacharach
Circuit Judge
5