No. 80-3504.
July 16, 1981.
J. Marvin Montgomery, Asst. Atty. Gen., Dept. of Justice, Baton Rouge, La., for respondents-appellants.
George M. Strickler, Jr. (court-appointed), Jane L. Johnson (court-appointed), New Orleans, La., for petitioner-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN and GARZA, Circuit Judges, and SCHWARTZ, District Judge.
District Judge of the Eastern District of Louisiana, sitting by designation.
PER CURIAM:
Having examined the record and the briefs fully, and having taken into account the subsequent decision in Weaver v. Graham, ___ U.S. ___, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), we agree with the opinion in the Order of United States District Judge Morey L. Sear, attached hereto as an Appendix, granting the writ of habeas corpus to the extent that respondents-appellants be required to restore 180 days of good time to the petitioner-appellee.
AFFIRMED.
APPENDIX
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ORDER
15:571.4 ex post facto pro se 28 U.S.C. § 2254 State ex rel. Bickman v. Dees, 367 So.2d 283 See 15:571.4 15:571.4 as amended by 15:571.4 as construed in State ex rel. Bickman v. Dees, supra, State ex rel. Bickman v. Dees, supra, ex post facto Calder v. Bull, 1 L.Ed. 648 In Re Medley, 134 U.S. 160 171 10 S.Ct. 384 387 33 L.Ed. 835 ex post facto State ex rel. Bickman v. Dees, supra, ex post facto Id. State v. Williams, 358 So.2d 943 Williams ex post facto See supra, Greenfield v. Scafati, 277 F. Supp. 644 aff'd mem., 390 U.S. 713 88 S.Ct. 1409 20 L.Ed.2d 250 Greenfield, ex post facto Greenfield Singleton v. Shafer, 313 F. Supp. 1094 ex post facto Singleton Morrissey v. Brewer, 408 U.S. 471 92 S.Ct. 2593 33 L.Ed.2d 484 Id., 408 U.S. at 481 92 S.Ct. at 2600 quoting Graham v. Richardson, 403 U.S. 365 374 91 S.Ct. 1848 1853 29 L.Ed.2d 534 Id. Wolff v. McDonnell, 418 U.S. 539 94 S.Ct. 2963 41 L.Ed.2d 935 See also Geraghty v. U.S. Parole Comm'n, 579 F.2d 238 265-66 Singleton, Morrissey Wolff); Shepard v. Taylor, 556 F.2d 648 654 Warden v. Marrero, 417 U.S. 653 663 94 S.Ct. 2532 41 L.Ed.2d 383 sic ex post facto Preiser v. Rodriguez, 411 U.S. 475 487-89 93 S.Ct. 1827 1835-36 36 L.Ed.2d 439 15:571.4 ex post facto Morey L. Sear TRAVIS H. BEEBE * VERSUS * NO. 79-4720 C. PAUL PHELPS, ET AL. * SECTION G * * * * * * Petitioner, Travis H. Beebe, pled guilty June 7, 1966 in Criminal District Court for the Parish of Orleans to a charge of armed robbery. He was sentenced to twenty years imprisonment, and was paroled on November 12, 1972. On May 6, 1978, he was convicted in the Ninth Judicial District Court for the Parish of Rapides on a charge of possession of a firearm by a felon. As a result of the firearms conviction, petitioner was sentenced to three years imprisonment, to run concurrently with the remainder of his twenty-year sentence, his parole was revoked, and he forfeited 180 days of previously earned "good time," pursuant to La. Rev.Stat.Ann. (B), (C) (West Supp. 1980). He presently is incarcerated at the Hunt Correctional Center. In habeas corpus proceedings before the Nineteenth Judicial District Court for the Parish of East Baton Rouge and the Louisiana Supreme Court, petitioner asserted that the statutory forfeiture provision, as applied to him, is an law prohibited by the state and federal constitutions, but the state courts denied relief. Having exhausted his available state court remedies, petitioner brings this proceeding, pursuant to , seeking restoration of his good time. The matter was referred to a United States Magistrate, who recommended that the petition for writ of habeas corpus be dismissed, under the authority of (La. 1978) (per curiam). I disagree. In 1966, the Louisiana statutory provision authorizing diminution of sentence for good behavior for persons committed to the custody of the Department of Corrections was silent on the question of the effect of parole revocation of previously earned good time. 1964 La. Acts, No. 426, § 2 (codified at La.Rev.Stat.Ann. (B) (West 1967)). However, the good time statute subsequently was amended to provide for the forfeiture of a maximum 180 days good time by inmates returned to an institution for parole violation on or after July 26, 1972. La.Rev.Stat.Ann. (B), 1972 La. Acts, No. 739, § 1, 1974 La. Acts, No. 200, § 1, and 1977 La. Acts, No. 665, § 1 (codified at La.Rev.Stat.Ann. (B), (C) (West Supp. 1980), at 289-91. Thus, the forfeiture provision was in effect prior to petitioner's parole, but subsequent to his commission of armed robbery. As noted by the Louisiana Supreme Court in at 291, it is well settled that any law passed after the commission of an offense that, in relation to that offense or its consequences, alters the situation of a party to his disadvantage, is an unconstitutional law. 3 U.S. (3 Dall.) 386, (1798); , , , , (1890). Yet, in denying petitioners relief in that case, the court did not focus on the practical effect the forfeiture provision had on the length of their original sentences. Rather, the court reasoned that a major principle underlying the ban on laws is that such laws fail to provide a "fair warning" of the extent to which one can be punished for the commission of a crime. at 291. Thus, since a person paroled after July 26, 1972 was put on notice that he would forfeit good time if his parole was revoked, there was no violation. Without further discussion, the court suggested a comparison to (La. 1978) and LaFave Scott, Criminal Law § 12 (1969). concerns a challenge to punishment under the Louisiana multiple offender statute, and the applicable section of LaFave and Scott also includes a discussion of repeat offender statutes. It is well settled that enhanced punishment for multiple offenders does not offend the prohibition, even if the enhancement provisions are adopted after the first offense, because the defendant is being punished not for the first, but for the subsequent offense or offenses. LaFave Scott, at 92. The crucial issue here, however, is not that petitioner had notice that he would forfeit his accrued good time if he violated parole, but that the forfeiture provision, which was passed after the commission of the armed robbery, alters his punishment for that offense to his disadvantage. The forfeiture is not a punishment for the second offense; the three-year prison term is the punishment. Rather, the forfeiture of good time is a sanction that extends the time remaining on petitioner's original sentence. The practical effect is a statutory increase in punishment for the first offense, enacted subsequent to the commission of the offense. It appears that (D.Mass. 1967), , , (1968), controls this case. In a three-judge court considered a challenge to a Massachusetts statute that suspended for six months the good time eligibility of prisoners reincarcerated after parole revocation. The court held that the statute could not be applied to parole violators who were originally sentenced for crimes committed prior to the statute's effective date. In the court's opinion, the limitation on earning good time had the effect of lengthening the petitioner's sentence, thus impermissibly altering his situation to his disadvantage. The court noted that the suspension provision could be applied to prisoners sentenced for crimes committed after the statute's effective date without constituting an unconstitutional law. The case was not mentioned nor its rationale discussed by the court in (E.D. Pa. 1970), which found no violation where a Pennsylvania statute enacted after petitioner's commission of the crime for which he was sentenced completely abolished good time. The court reasoned that good time was not a vested right, but solely a matter of executive grace. Thus, repeal of the good time statute was not viewed as increasing petitioner's punishment. The court's reliance on the right/privilege distinction is no longer justified. In , , (1972), the Court said the ability to assert a constitutional right does not depend upon "whether a governmental benefit is characterized as a `right' or as a `privilege.'" , , , , , , (1971). Rather, the relevant inquiry should be whether the denial of a benefit would amount to a significant loss to the claimant. In , , (1974), the Court held that nothing in the Constitution requires the granting of good time credit, but that once a state adopts good time provisions and a prisoner earns credit, the deprivation of that good time constitutes a substantial sanction, and a prisoner properly can claim that a summary deprivation of good time amounts to a deprivation of liberty without due process of law. , n. 136 (3d Cir. 1978) (declining to follow and questioning the validity of in light of and , (2d Cir. 1977) ("Since parole eligibility is considered an integral part of any sentence, cf. , , [2538, ], . . . . (1974), official port-sentence [] action that delays eligibility for supervised release runs afoul of the proscription."). A writ of habeas corpus is the proper federal remedy of a state prisoner seeking speedier release. , , , , (1973). For the reasons cited herein, La.Rev.Stat.Ann. (B), (C) (West Supp. 1980) constitutes an unconstitutional law as applied to petitioner. Accordingly, his petition for q writ of habeas corpus is GRANTED to the extent that defendant is required to restore to petitioner 180 days good time. /s/ MOREY L. SEAR UNITED STATES DISTRICT JUDGE.