Hadley, Willie B. v. Holmes, Michael L. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1369
WILLIE B. HADLEY, JR.,
Petitioner-Appellant,
v.
MICHAEL L. HOLMES,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 C 619—J. Phil Gilbert, Judge.
____________
SUBMITTED AUGUST 20, 2003*—DECIDED SEPTEMBER 3, 2003
____________
Before BAUER, KANNE, and EVANS, Circuit Judges.
PER CURIAM. Illinois inmate Willie Hadley, Jr., petitioned
for a writ of habeas corpus under 28 U.S.C. § 2254, alleging
that his ability to earn credit for good conduct in prison has
been restricted in violation of the United States Constitu-
tion. The district court denied the petition on the ground
that in state court Hadley had procedurally defaulted his
claims. Hadley filed a timely notice of appeal. We affirm on
the grounds set forth in this order.
*
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, this appeal
is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2 No. 03-1369
In 1976 Hadley pleaded guilty to first-degree murder and
was sentenced to prison for an indeterminate term of 24
to 74 years. When Hadley was sentenced, Illinois prisons
allotted good time on a progressive scale that after six years
reached a maximum ratio of six months’ credit for every
year of imprisonment. See McGee v. Snyder, 760 N.E.2d
982, 989 (Ill. App. Ct. 2001). These credits were known
as “statutory” good time. See id. The Director of the prison
system was also allowed to award additional “compensa-
tory” good time for participation in educational or work pro-
grams. See Johnson v. Franzen, 397 N.E.2d 825, 826 (Ill.
1979). On February 1, 1978, the Illinois legislature amend-
ed the governing statute to require the department of cor-
rections to replace the progressive scale of awarding good
time with a day-for-day credit system for all prisoners. See
id. The revised statute also eliminated “compensatory” good
time and instead gave the Director discretion to “award up
to 90 days additional good conduct credit for meritorious
service in specific instances as the Director deems proper.”
Ill. Stat. ch. 38, par. 1003-6-3(a)(2) (1978) (current version
at 730 Ill. Comp. Stat. 5/3-6-3(a)(3)). Illinois courts have
held that the decision whether to use the revised system,
the old system, or a combination of the two was to be made
by calculating which was most favorable to the inmate. See
Williams v. Irving, 424 N.E.2d 381, 384 (Ill. App. Ct. 1981).
We cannot tell from the record whether Hadley’s credits are
being calculated under the pre- or post-1978 system or a
combination of the two.
In 1983 the Supreme Court of Illinois interpreted the
1978 amendment as prohibiting the Director from granting
more than a total of 90 days of discretionary good time to
any inmate during his or her term of incarceration, regard-
less of length. Lane v. Sklodowski, 454 N.E.2d 322, 324 (Ill.
1983). Prior to Lane the Director had interpreted former
§ 1003-6-3 to permit multiple awards of up to 90 days each.
See id. at 323. Although rejecting that position for pro-
No. 03-1369 3
spective awards, the Lane court ordered that discretionary
awards already given be honored even if totaling more than
90 days. Id. at 326.
In September 1990 the legislature again amended the
governing statute, this time adding a provision allowing
some prisoners to earn good-time credits for participating
in educational and work programs. See 730 Ill. Comp. Stat.
5/3-6-3(a)(3). But this benefit was not extended to those,
like Hadley, who are imprisoned for first-degree murder.
The 1990 amendment did not revoke Hadley’s accumulated
credits or reduce the rate at which he would earn good time
in the future; rather, the change simply allowed other in-
mates to earn good time at a faster pace. See id.
Hadley eventually responded to these changes by petition-
ing for habeas corpus relief in state court in 1999. He
principally claimed that the 1990 amendment violated the
Ex Post Facto Clauses of the federal and Illinois constitu-
tions. See U.S. Const. art. I, § 9, cl. 3; Ill. Const. art. I, § 16.
Hadley also claimed that implementation of the Lane ruling
violated his federal constitutional rights to due process and
equal protection. The Illinois circuit court dismissed the pe-
tition, explaining that it did so “for reasons alleged in the
motion to dismiss” filed by the state. On appeal to the Ap-
pellate Court of Illinois, Hadley pressed his claim concern-
ing Lane, but abandoned his ex post facto claim. The appel-
late court affirmed the dismissal, and the state supreme
court summarily denied leave to appeal.
Hadley then turned to the federal courts, pressing the two
claims he presented in his state-court petition. The district
court dismissed the petition, concluding that Hadley had
procedurally defaulted both claims. Alternatively, the
district court held that Hadley’s claims were meritless.
We start with Hadley’s second claim and agree with the
district court that Hadley procedurally defaulted it. We
review the district court’s procedural default ruling de novo.
4 No. 03-1369
See Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002).
Hadley raised the ex post facto claim in his state habeas
corpus petition in the circuit court, but abandoned it in his
appeal to the appellate and supreme courts. Federal courts
will not address the merits of a habeas corpus claim unless
the petitioner presented it in “one complete round of the
State’s established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see United States ex rel.
Bell v. Pierson, 267 F.3d 544, 555 (7th Cir. 2001). Hadley
did not take his ex post facto claim through a complete
round, and thus defaulted it. And although a procedural de-
fault can sometimes be excused, see Coleman v. Thompson,
501 U.S. 722, 750 (1991); Whitehead v. Cowan, 263 F.3d
708, 727 (7th Cir. 2001), Hadley has never argued that his
circumstances would satisfy one of the narrow exceptions.
Even if not defaulted, however, Hadley’s ex post facto
claim is frivolous. His grievance is that the 1990 amend-
ment allows other inmates not convicted of first- or second-
degree murder to earn up to 180 days of discretionary cred-
it, while both before and after the amendment he was lim-
ited to 90. A change in law violates the federal Ex Post
Facto Clause, however, only if it makes the punishment
for a crime more onerous after its commission. Collins v.
Youngblood, 497 U.S. 37, 41-42 (1990); Weaver v. Graham,
450 U.S. 24, 28 (1981). The 1990 amendment did not reduce
the amount of credit Hadley could accumulate, so his argu-
ment fails.
We turn, then, to Hadley’s first claim: that he is being
denied due process and equal protection by the Director’s
implementation of the Illinois supreme court’s holding
in Lane that the 90-day cap on discretionary awards en-
acted in 1978 is a limit on the number of days that can be
given during the entire term of imprisonment, not a limit on
the number of days that could be given on any single
occasion. The district court concluded that Hadley also
No. 03-1369 5
defaulted this claim, but we do not decide this question. In
our view, Hadley’s first claim is not cognizable under
§ 2254, and should instead have been raised if at all under
42 U.S.C. § 1983.
In order to bring an action under § 2254, a prisoner must
be “in custody” pursuant to the conviction or sentence being
challenged. See 28 U.S.C. § 2254; Maleng v. Cook, 490 U.S.
488, 490-91 (1989) (per curiam). Although § 2254 is the ap-
propriate vehicle when prison officials have revoked good-
time credits once earned, e.g., Walker v. O’Brien, 216 F.3d
626, 633 (7th Cir. 2000), or lowered a previously established
credit-earning classification, see Montgomery v. Anderson,
262 F.3d 641, 643 (7th Cir. 2001), Hadley is not complain-
ing that any benefit already conferred has been taken away.
Hadley argues that his ability to earn discretionary credits
in the future was hurt by the Director’s implementation of
Lane, and we have held that § 1983 must be used where a
claim, if decided favorably to the prisoner, at best might
accelerate the accrual of good time and hasten the pris-
oner’s release. See Zimmerman v. Tribble, 226 F.3d 568,
571-72 (7th Cir. 2000) (addressing, under § 1983, prisoner’s
constitutional claim that his transfer from a prison that had
vocational training and substance-abuse programs pre-
vented him from earning additional good time); Higgason v.
Farley, 83 F.3d 807, 809-10 (7th Cir. 1995) (addressing,
under § 1983, inmate’s claim that not allowing him to parti-
cipate in educational programs deprived him of opportunity
to earn good time; court observed that “denying the oppor-
tunity to earn credits did not ‘inevitably affect the duration
of the sentence’ ”).
The Lane decision did not result in Hadley’s loss of good
time already awarded, and both before and after the deci-
sion Hadley had no entitlement to—and no expectation of
receiving—any discretionary good time. His complaint is
really about the Director’s reliance on Lane to limit the
6 No. 03-1369
amount of discretionary good time any prisoner can receive,
and such a challenge to the Director’s procedure in award-
ing discretionary good time is similar to an inmate’s attacks
on the procedures states use to consider applications for
parole. The Supreme Court has analyzed disputes about
parole procedures under § 1983. See Bd. of Pardons v. Allen,
482 U.S. 369, 371 (1987); Greenholtz v. Inmates of Neb.
Penal and Corr. Complex, 442 U.S. 1, 12 (1979). We have
held that attacks on parole procedures are properly brought
under § 1983 because they ask courts to examine adminis-
trative procedures, not the duration of an inmate’s custody.
See Moran v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000);
Clark v. Thompson, 960 F.2d 663, 665 (7th Cir. 1992). Here,
Hadley is arguing that the Director’s method of awarding
discretionary good time has been, after the Lane decision,
unconstitutional as applied to him. If successful, this claim
has the potential to affect Hadley’s duration of confinement,
but that possibility is too attenuated from this proceeding
to state a claim under § 2254.
District courts faced with a § 1983 suit brought under
§ 2254 should, rather than reach the merits, dismiss with-
out prejudice to the possibility of a future § 1983 action or
at least give notice that the suit will be converted to one
under § 1983 if the plaintiff declines to dismiss voluntarily.
See Moran, 218 F.3d at 651; Pischke v. Litscher, 178 F.3d
497, 500 (7th Cir. 1999). Accordingly, although we uphold
the dismissal of Hadley’s first claim for relief, we do so with
the understanding that Hadley is free to pursue it under
§ 1983, subject to all of the normal constraints of the Prison
Litigation Reform Act.
We hasten to add, however, that Hadley would be foolish
to pursue this path because his claim that implementation
of Lane has denied him due process and equal protection is
frivolous. The prospective credit Hadley is requesting is
entirely within the control of the Director, and there is no
No. 03-1369 7
due process “protection for action that merely might affect
the duration of the sentence.” Zimmerman, 226 F.3d at 571-
72 (emphasis added) (citing Sandin v. Conner, 515 U.S. 472,
487 (1995)). With no entitlement to discretionary good time,
Hadley has no liberty interest, and therefore the state need
not afford him due process before declining to award him
the credit. Hadley’s equal protection claim similarly fails
because the Lane decision did not differentiate between
inmates, but instructed that no more than 90 days discre-
tionary good-time credit can be awarded to all inmates,
regardless of the crime of which they were convicted.
Accordingly, we AFFIRM the district court’s order on the
grounds set forth in this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-3-03