Berry v. Scafe ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 23 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
ARTHUR BERRY,
Petitioner - Appellant, No. 98-3194
v. (D.C. No. 97-3438-GTV)
MARILYN SCAFE, Chairperson, (D. Kan.)
Kansas Parole Board,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining Petitioner-Appellant’s brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
Petitioner Arthur Berry is a prisoner in a correctional facility in Lansing,
Kansas. Mr. Berry initiated this action by filing a complaint pursuant to 42
U.S.C. § 1983. He alleged that the Kansas Parole Board’s application of a newly
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
amended state statute extending the interval between parole hearings from three
years to a range of three to ten years violated his substantive due process rights
and the Ex Post Facto Clause of the United States Constitution. In his complaint,
Mr. Berry states that he is seeking injunctive and declaratory relief. See R., Vol
I., Doc. 1 at 5. Specifically, he asks the district court to “issue an order declaring
the Kansas Parole Board’s action of passing Plaintiff for ten (10) years for a
parole reconsideration hearing unconstitutional” and “to issue an order directing
the Kansas Parole Board to rescind its order passing Plaintiff for ten (10) years
and reschedule Plaintiff for a three (3) year deferral parole hearing in accordance
with the law in place at the time of Plaintiff’s conviction.” Id.In response to Mr. Berry’s complaint, the district court issued an order in
which it concluded that because the complaint raised a “challenge [to] the length
or fact of his confinement,” it should be construed as a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. R., Vol. 1, Doc. 2 at 1. Because the
court determined that Mr. Berry had failed to exhaust state court remedies, it
dismissed the action without prejudice. See Kan. Stat. Ann. § 60-1501(a)
(allowing persons in state custody to prosecute writs of habeas corpus). Mr.
Berry then filed a motion requesting the district court to reconsider its dismissal
of his action, which the court construed as a motion to alter and amend judgment
pursuant to Federal Rule of Civil Procedure 59(e). The court denied the motion,
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stating that Mr. Berry did “not raise any new issues which were not considered by
the court when preparing its [original] order.” R., Vol. I, Doc. 5 at 1. Mr. Berry
then filed a notice of appeal and, presumably because the district court construed
his action as a petition for a writ of habeas corpus, an application for a certificate
of appealability.
On appeal, Mr. Berry contends that the district court’s decisions construing
his section 1983 complaint as a habeas corpus petition and dismissing the petition
for failure to exhaust his state remedies were erroneous. Mr. Berry argues that
because he is “ not seeking to challenge the length or fact of his confinement,” he
is not required to file a section 2254 petition and exhaust his state remedies.
Appellant’s Br. at 1-2. Mr. Berry further explains that since he is challenging the
“parole decision process” and “not the denial of parole,” his claim is properly the
subject of a section 1983 action. Id. at 2. We review de novo the legal bases for
the district court's decision to construe Mr. Berry’s complaint as a habeas corpus
petition and its resulting dismissal. See Jackson v. Shanks , 143 F.3d 1313, 1317
(10th Cir.), cert. denied , __ U.S. __, 119 S. Ct. 378 (1998). We exercise
jurisdiction pursuant to 28 U.S.C. § 1291.
We acknowledge that the distinction between section 2254 petitions and
section 1983 actions is not always easy to apply. The distinction may be
especially blurry when “a prisoner challenges an unconstitutional condition of
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confinement or prison procedure that affects the timing of his release from
custody.” Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (holding that
prisoner’s suit alleging that he was improperly placed in administrative
segregation, that prisoners in administrative segregation were never granted
parole, and that his placement was not reviewed as often as required was properly
construed as a section 1983 action). Nonetheless, distinguishing between the two
types of actions is critical because while exhaustion of available and adequate
state remedies generally is not a prerequisite to a section 1983 action, see Patsy
v. Board of Regents, 457 U.S. 496, 501 (1982), exhaustion is required before a
state prisoner may seek habeas corpus relief in federal court. See Rose v. Lundy,
455 U.S. 509, 515-16 (1982).
Addressing the distinctions between habeas corpus petitions and section
1983 actions, the Supreme Court has held that “habeas corpus is the exclusive
remedy for a state prisoner who challenges the fact or duration of his confinement
and seeks immediate or speedier release, even though such a claim may come
within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481 (1994)
(citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)). By contrast, a section
1983 action is typically the proper vehicle for attacking unconstitutional
conditions of confinement and parole procedures. See Preiser, 411 U.S. at 498-
99; Carson, 112 F.3d at 820 (“Generally, § 1983 suits are the proper vehicle to
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attack unconstitutional conditions of confinement and prison procedures.”).
In Heck, the Supreme Court addressed the types of claims for which state
prisoners may seek redress in section 1983 actions. See Heck, 512 U.S. at 480-
82. The Court held that a state prisoner’s claim for damages is not cognizable
under 42 U.S.C. § 1983 if a judgment in his or her favor “would necessarily imply
the invalidity of his conviction or sentence.” Id. at 487. If a judgment in favor of
the plaintiff would necessarily invalidate his conviction or sentence, then the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence already has been invalidated. Id. If the plaintiff cannot do
so, then habeas corpus is the exclusive remedy and exhaustion is required. See id.
at 481, 487.
More recently, the Supreme Court again addressed the distinction between
section 1983 actions and section 2254 petitions. See Edwards v. Balisok, 520
U.S. 641, 117 S. Ct. 1584, 1587 (1997) (holding that prisoner’s claim was not
cognizable under section 1983 because it necessarily implied the invalidity of the
deprivation of his good-time credits). This decision further clarifies the
distinction between the two types of suits: When a prisoner seeks to challenge
prison conditions or procedures that, if his challenge were successful, would
“necessarily imply the invalidity of the punishment imposed,” then his claims are
not cognizable under 42 U.S.C. § 1983. Id. at 1589 ; see also Preiser, 411 U.S. at
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500 (holding that when a state prisoner seeks “a determination that he is entitled
to immediate release or a speedier release . . . , his sole federal remedy is a writ
of habeas corpus”); Carson, 112 F.3d at 820-21 (“If ‘a favorable
determination . . . would not automatically entitle [the prisoner] to accelerated
release,’ the proper vehicle is a § 1983 suit.” (internal citations omitted)).
Although section 1983 actions generally may be used to challenge prison
conditions and parole procedures, the key question is whether “the nature of the
challenge to the procedures [is] such as necessarily to imply the invalidity of the
judgment.” Edwards, 117 S. Ct. at 1587.
In accordance with the Supreme Court cases discussed above, this court
also has recognized that the key distinction between the two types of actions is
the nature of the relief sought by the prisoner. See Herrera v. Harkins, 949 F.2d
1096, 1097-98 (10th Cir. 1991). Where a prisoner challenges “a constitutional
defect in an individual parole hearing, [and] where the remedy lies in providing a
new parole hearing, [the] prisoner must file a habeas petition.” Id. at 1097. By
contrast, where the prisoner seeks the benefit of a ruling on a constitutional issue
that may affect future parole hearings, i.e. “injunctive or declaratory relief to
correct constitutionally defective parole procedures,” id. at 1097, his action may
be filed under section 1983. See id. at 1097-98.
In this case, Mr. Berry does not contend “that he is being unlawfully
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subjected to physical restraint,” and he does not seek “release from such
confinement.” Preiser, 411 U.S. at 486. Nor does he seek a hearing to correct the
outcome of a prior, defective parole hearing. Instead, Mr. Berry’s claims focus
on the defective parole procedures which he argues violate his substantive due
process rights and the Ex Post Facto Clause. Given the nature of his claims, Mr.
Berry “may not obtain the ‘new Parole Board Hearing’ he requested from the
district court,” but he may “obtain declaratory or injunctive relief regarding
parole procedures.” Herrera, 949 F.2d at 1098 (explaining that where a prisoner
seeks injunctive or declaratory relief to correct constitutionally defective parole
procedures under section 1983, “the court does not grant a new parole hearing;
rather, in any future parole hearings, the prisoner benefits from the new
constitutionally acceptable procedures.”).
The fact that Mr. Berry asked the district court to grant him a parole
hearing within three years rather than ten years does not change our analysis. See
Woods v. Keenan, 116 F.3d 490, 1997 WL 345993, at *2 (10th Cir. 1997) (Table)
(“[W]e do not rely upon the plaintiff’s characterization, but, rather, we consider
the nature of the relief sought.”). As discussed above, a judgment favorable to
Mr. Berry will not automatically provide him with an immediate hearing, result in
his release, or shorten the duration of his sentence. At most, an adjudication that
the Kansas statute lengthening the time between parole hearings from three years
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to a range of three to ten years violated the Ex Post Facto Clause would entitle
Mr. Berry and similarly situated individuals to the future benefit of more frequent
parole hearings. Because this is not a case in which a judgment favorable to Mr.
Berry would necessarily imply the invalidity of his conviction, sentence, or parole
determination, we hold that Mr. Berry’s action is cognizable under 42 U.S.C. §
1983. 1 We therefore reverse the district court’s dismissal without prejudice and
remand for further proceedings consistent with this order and judgment.
As we stated in Herrera, “[w]e express no opinion on the merits of the
complaint or on what relief, if any, would be appropriate.” Herrera, at 1098. We
do note that in 1995 the Supreme Court rejected an ex post facto challenge to a
California parole statute amendment lengthening the time between parole hearings
from one year to up to three years. See Morales, 514 U.S. at 503. In that case,
the Court developed the following test:
[W]e have long held that the question of what legislative adjustments
“will be held to be of sufficient moment to transgress the
constitutional prohibition” [against ex post facto laws] must be a
matter of “degree.” In evaluating the constitutionality of the
[California] amendment, we must determine whether it produces a
1
Our holding that Mr. Berry’s claims are cognizable under 42 U.S.C. § 1983does not necessarily mean that Mr. Berry could not have raised his concerns in a
petition for habeas corpus. See Preiser, 411 U.S. at 499 (“This is not to say that
habeas corpus may not also be available to challenge such prison conditions.”);
cf. California Dep’t of Corrections v. Morales, 514 U.S. 499, 504 (1995)
(addressing section 2254 petition raising ex post facto challenge to California
statute which increased length of time between parole hearings).
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sufficient risk of increasing the measure of punishment attached to
the covered crimes.
Id. at 509 (internal citation omitted). The Court went on to conclude that
California’s amendment created only a “speculative and attenuated possibility of
producing the prohibited effect of increasing the measure of punishment for the
covered crimes, and such conjectural effects are insufficient under any threshold
we might establish under the Ex Post Facto Clause.” Id. Other factors affecting
the Court’s decision included the fact that the amendment only affected “a class
of prisoners for whom the likelihood of release on parole is quite remote,” id. at
510; it only provided the parole board with authority to change the timing of
subsequent parole hearings, not of the initial parole hearing, see id. at 511; and
the board retained the authority to tailor the frequency of the subsequent hearings
to the individual prisoner. See id. The record in this case is not sufficient to
meaningfully measure Mr. Berry’s claims in light of the principles set forth in
Morales.
Finally, because we hold that Petitioner’s claims are cognizable under 42
U.S.C. § 1983, he does not need a certificate of appealability.
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REVERSED and REMANDED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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