Crowell, Anthony v. Walsh, Edward , 151 F.3d 1050 ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 1998 Decided July 24, 1998
No. 96-7192
Anthony Crowell,
Appellant
v.
Edward Walsh,
Administrator and
Matthew McLean, Deputy Warden,
Maximum Security Facility,
District of Columbia Department of Corrections,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00339)
Jonathan M. Smith, appointed by the court, argued the
cause and filed the briefs for appellant.
Mary L. Wilson, Assistant Corporation Counsel, argued
the cause for the District of Columbia appellees. With her on
the briefs were John Ferren, Corporation Counsel, and
Charles L. Reischel, Deputy Corporation Counsel. Jo Anne
Robinson, Principal Deputy Corporation Counsel, entered an
appearance.
Before: Wald, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Anthony Crowell was convicted
in Virginia state court and is currently serving time at the
District of Columbia jail, having been transferred to D.C.
under the Interstate Corrections Compact ("ICC"), D.C.
Code s 24-1001, Va. Code. ss 53.1-216, 217. The district
court denied his petition for a writ of habeas corpus, which
was filed pursuant to 28 U.S.C. s 2241. We hold that Cro-
well is not entitled to a certificate of probable cause and
dismiss the appeal.
Crowell was sentenced by the Commonwealth of Virginia to
more than 30 years in prison for robbery and murder. He
began serving his sentence in Virginia but thanks to an
"extensive enemy list" he was transferred to a prison in New
Mexico under the ICC. After assaulting a prison guard and
being generally uncooperative in New Mexico Crowell was
transferred again under the ICC, this time to the Lorton
Correctional Complex in Occoquan, Virginia, which is part of
the District of Columbia penal system. See D.C. Code
s 24-442. On February 22, 1996, while housed at Lorton,
Crowell filed his federal habeas petition, alleging that D.C.
officials had denied him due process and equal protection by
not awarding him good conduct credits to which he was
entitled under Virginia law.
As a threshold matter we note that Crowell's claim of
entitlement to good conduct credits must be brought in
habeas because it would accelerate his release if successful.
Preiser v. Rodriguez, 411 U.S. 475 (1973). Under our deci-
sion today in Blair-Bey v. Quick, No. 96-5280, therefore, his
claim is not one that required him to comply with the filing
fee provisions of the Prison Litigation Reform Act, 28 U.S.C.
s 1915(b). In addition, the parties appear to agree that
Crowell has exhausted his Virginia state habeas remedies.
There remains the question whether Crowell's appeal is
governed by the certificate of appealability requirement of
the Antiterrorism and Effective Death Penalty Act
("AEDPA"). Before the passage of the AEDPA, 28 U.S.C.
s 2253 required state prisoners seeking to appeal denials of
habeas relief to get a "certificate of probable cause," which
could be issued if the prisoner made "a substantial showing of
the denial of a federal right." Barefoot v. Estelle, 463 U.S.
880, 893 (1983). Under the AEDPA prisoners must get a
"certificate of appealability," which requires them to make "a
substantial showing of the denial of a constitutional right."
28 U.S.C. s 2253(c)(2). Since Crowell's only claims are con-
stitutional, for purposes of this case there is no difference
between the standards for issuance of the two types of
certificate.
Since the parties were ordered to brief the issue, however,
it is appropriate to specify whether we must insist on the
AEDPA certificate or its predecessor. The Supreme Court
has held that the AEDPA's amendments to the non-capital
habeas provisions of Title 28 "generally apply only to cases
filed after the Act became effective." Lindh v. Murphy, 117
S. Ct. 2059, 2068 (1997). Noting the word "generally" in this
passage from Lindh, the Eighth Circuit concluded that the
certificate of appealability requirement nonetheless applies to
all appeals filed on or after April 24, 1996, even if the
underlying petition was filed before that date. Tiedeman v.
Benson, 122 F.3d 518, 521 (8th Cir. 1997). The Eighth
Circuit appeared to reach this conclusion after determining
that such application would have no meaningful "retroactive
effect," as defined by Landgraf v. USI Film Products, Inc.,
511 U.S. 244 (1994), because it would not "impair rights a
party possessed when he acted, increase a party's liability for
past conduct, or impose new duties with respect to transac-
tions already completed." Id. at 280. See Tiedeman, 122
F.3d at 521 ("[W]e can think of no reason why a new
provision exclusively directed towards appeal procedures
would depend for its effective date on the filing of a case in a
trial court, instead of on the filing of a notice of appeal or
similar document.").
But Lindh rejected the idea that a court should restrict
itself to the Landgraf retroactive-effect inquiry whenever a
statute lacks an "express command" as to "its ultimate tem-
poral reach," Lindh, 117 S. Ct. at 2062, mandating instead the
use of "normal rules of construction" to ascertain congression-
al intent. Id. at 2063. It was on that basis that it concluded
that the AEDPA's non-capital habeas provisions were intend-
ed by Congress to "generally apply only to cases filed after
the Act became effective." Id. at 2068. Our conclusion that
those provisions include even the ones addressed to appeal
procedures is strengthened by Lindh's express disapproval of
an Eleventh Circuit opinion invoking Landgraf to find the
certificate of appealability requirement applicable to cases
filed before the AEDPA's effective date but appealed after-
ward. See id. at 2062 (citing Hunter v. United States, 101
F.3d 1565, 1569 (11th Cir.1996) (en banc)). Accordingly, we
join every circuit (apart from the Eighth) to address the
question after Lindh in holding that s 2253(c) does not apply
to appeals of habeas petitions filed before the effective date of
the Act. See, e.g., Hardwick v. Singletary, 122 F.3d 935, 936
(11th Cir.), vacated in part on other grounds, 126 F.3d 1312(11th Cir. 1997); Berrios v. United States, 126 F.3d 430, 432
n.2 (2d Cir. 1997) (collecting cases).1
Having determined that the certificate of probable cause is
the right kind of certificate for Crowell's case, we decline to
issue one. Crowell's claim of entitlement to good conduct
credits is based entirely on Virginia law, and his habeas
petition simply "attempts to transform his state law claim into
a federal court action by dressing it in the verbiage of due
process and equal protection." Brandon v. District of Co-
lumbia Board of Parole, 823 F.2d 644, 651 (D.C. Cir. 1987).
The due process claim founders on the fact that Crowell
concededly has no constitutionally protected liberty interest
in any particular level of good conduct credits. His habeas
petition seems to contend that Virginia inmates transferred
under the ICC are entitled to the highest level of credits, a
contention that appears to be grounded in a complete mis-
__________________
1. Earlier this month the Supreme Court held that it had certiorari jurisdiction over the Eighth Circuit's
denial of a certificate of appealability in a s 2255 case filed by a federal prisoner before passage of the
AEDPA but appealed thereafter. Hohn v. United States, 118 S. Ct. 1969 (1998). Although the petitioner in
that case argued that the certificate of appealability requirement should not apply to such cases, see Brief for
Petitioner at 40-44, Hohn v. United States, 118 S. Ct. 1969 (1998), the Court's opinion did not address the
question. We therefore treat Lindh as the Court's last word on the subject.
reading of the relevant regulations. But the regulations do
not contain the sort of mandatory language that could give
rise to a liberty interest. See Ellis v. District of Columbia,
84 F.3d 1413, 1418 (D.C. Cir. 1996). As the regulations were
his sole basis for any claim of entitlement, there is no liberty
or property the deprivation of which could have been without
due process. Finally, assuming Crowell's petition can be read
to state an equal protection claim, it is an entirely conclusory
one and inadequate to merit a certificate of probable cause.
The case is therefore
Dismissed.