
USCA1 Opinion

	




          September 2, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2436                                              DAVID A. JOSSELYN,                                Petitioner, Appellant,                                          v.                                RONALD POWELL, ET AL.,                               Respondents, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               David A. Josselyn pro se on Application for Certificate of                _________________          Probable Cause.                                  __________________                                  __________________                      Per Curiam.  Pro se prisoner David Josselyn seeks a                      __________   ___ __            certificate of probable cause  to appeal the district court's            summary denial of  his petition for habeas  corpus.  Josselyn            is presently  incarcerated in  Massachusetts.  He  is serving            Massachusetts and New Hampshire prison sentences.  His habeas            petition  names the Warden of the  New Hampshire State Prison            and  the  Commissioner of  the  New  Hampshire Department  of            Corrections  as respondents.   The  habeas petition  seeks to            compel the New Hampshire  respondents to restore certain good            time credits which Josselyn was compelled to forfeit from his            New Hampshire prison record following a September 1989 escape            attempt  from  the  Massachusetts   Correctional  Institution            (M.C.I.) at Norfolk.     After this  escape attempt, Josselyn            was subjected to internal disciplinary proceedings instituted            by the Massachusetts Department of Corrections (MA-DOC).  The            MA-DOC sanctioned  Josselyn by  requiring him to  forfeit 500            good   time  credits.1   In   contrast,  the   New  Hampshire            Department  of  Corrections  (NH-DOC) compelled  Josselyn  to            forfeit  all of the good time credits  he had earned thus far            on  his New  Hampshire  prison sentence.   Josselyn's  habeas                                            ____________________            1.  The  MA-DOC  also  punished  Josselyn  with  15  days  of            isolation, 2 years in  segregation, and reclassification to a            higher  security prison.   Josselyn filed  a 42  U.S.C.  1983            action against  various Massachusetts prison  officials which            challenged,  inter alia,  the disciplinary  proceedings which                         _____ ____            resulted  in his loss  of 500  days of  good time  credits in            Massachusetts.   This  court  affirmed  summary judgment  for            those defendants in Josselyn v. Poirier, et al., slip op. No.                                ________    _______________            92-1014, (1st Cir. July 27, 1992).                                          -2-            petition alleged that the NH-DOC's action violated the Double            Jeopardy  Clause  and his  right  to  procedural due  process            insofar as  the action  was taken  without advance  notice to            Josselyn and an opportunity to defend himself.                    To  justify the  issuance of  a certificate  of probable            cause, the  petitioner must  "make a 'substantial  showing of            the denial  of a  federal right.'"  Barefoot v. Estelle,  463                                                ________    _______            U.S. 880, 893 (1983)(quoting Stewart  v. Beto, 454 F.2d  268,                                         _______     ____            270  n. 2 (5th Cir. 1971), cert. denied, 406 U.S. 925(1972)).                                       ____  ______            "[I]n  order to make a substantial showing of the denial of a            federal  right a petitioner who  has been denied  relief in a            district  court   '"must  demonstrate  that  the  issues  are            debatable among jurists of reason; that a court could resolve                                                            _____            the issues [in a different manner]; or that the questions are            'adequate  to deserve  encouragement to  proceed further.'"'"            Lozada v.  Deeds,    111 S.Ct.  860,  863  (1991)  (citations            ______     _____            omitted).                 We  have thoroughly  reviewed the record  and Josselyn's            memorandum  to  this court  and  conclude  that Josselyn  has            failed  to make a substantial showing that he has been denied            a federal right.   The Double Jeopardy Clause does  not apply            to  prison  disciplinary proceedings.    Rather,  the Supreme            Court has  indicated that the Double  Jeopardy Clause applies            only to criminal and  quasi-criminal proceedings.  See, e.g.,                                                               ___  ____            Breed v. Jones, 421  U.S. 519, 528 (1975)("The risk  to which            _____    _____                                         -3-                                          3            the  [Double  Jeopardy]  Clause  refers  is  not  present  in            proceedings that are  not 'essentially  criminal.'")(citation            omitted).  See also  Wolff v.  McDonnell, 418  U.S. 539,  556                       ___ ____  _____     _________            (1974)("Prison disciplinary  proceedings are  not  part of  a            criminal prosecution...").  Josselyn  was not technically  in            jeopardy   when   the   MA-DOC    instituted   administrative            disciplinary proceedings against him  for his escape attempt.            It  follows that Josselyn also  was not in  jeopardy when the            NH-DOC  decided that  he must  forfeit all  of his  good time            credits  for the same offense.   This result  is supported by            case  law which  indicates that  the  fact that  a prisoner's            conduct  results  in administrative  disciplinary proceedings            and sanctions does not  bar a subsequent criminal prosecution            of the  prisoner for the  same conduct.   See, e.g.,  Fano v.                                                      ___  ____   ____            Meachum, 520 F.2d 374, 376 & n.1 (1st Cir. 1975), reversed on            _______                                           ________ __            other grounds, 427  U.S. 215 (1976); United States v. Rising,            _____ _______                        _____________    ______            867 F.2d 1255, 1259  (10th Cir. 1989); Kerns v.  Parratt, 672                                                   _____     _______            F.2d 690, 691-92 (8th Cir. 1982)(per curiam); Commonwealth v.                                                          ____________            Sneed, 3 Mass. App. Ct. 33, 34-35 (1975).             _____                 If  the   Double  Jeopardy  Clause  does   not  prohibit            Josselyn's criminal prosecution for attempted escape, then it            likewise cannot prohibit a second  administrative sanction by            the  NH-DOC.   This  sanction is  not  properly considered  a            double  punishment  for  the  same  disciplinary  infraction.            Further,  since  Josselyn is  serving  Massachusetts and  New                                         -4-                                          4            Hampshire prison sentences  concurrently, his escape  attempt            was  an  offense against  each  sovereign.    Nothing in  the            Federal  Constitution prevents  New Hampshire  from punishing            Josselyn for this offense.2                 Josselyn's second claim is  that the NH-DOC violated his            right to procedural due process by automatically imposing the            forfeiture  of his  good time  credits in  his  New Hampshire            prison  record  without first  affording  him  notice of  the            charge against  him and an evidentiary hearing where he could            defend  himself. Josselyn  maintains  that New  Hampshire has            created a liberty  interest that  gives him the  right to  be            free from punishment in excess of that imposed by the MA-DOC.            This liberty interest is said to derive from the  Information            and  Data Sheet for New  Hampshire Inmates Not  Housed at New            Hampshire State Prison, Habeas Petition, Exhibit A.3                                              ____________________            2.  Josselyn maintains that New Hampshire can only punish him            if  his escape  attempt occurred  in New  Hampshire.   We are            aware of  no  authority supporting  his position  and do  not            credit it.             3.  The Information Sheet states:                      3.  Rules and  Regulations:  You will  be                          ______________________                      required   to   follow   the  rules   and                      regulations  that  exist in  the facility                      where  you are  confined.   The behavior,                      dress,  work, pay, visiting,  and all the                      other  rules  apply to  you  and you  are                                                       ________                      subject  to  the  disciplinary system  in                      _________________________________________                      place   at   that   facility,   including                      _________________________________________                      whatever  punishments   are  imposed  for                      _________________________________________                      violations.    You  should  try  hard  to                      ___________                      establish a good work and  conduct record                      at  that  facility   since  the   reports                                         -5-                                          5                 New  Hampshire  RSA 651-A:22(IV)(b)  authorizes  the New            Hampshire  Commissioner of Corrections  to subject a prisoner            to the loss of "all or  any portion of" his good time credits            for "[a]ny  serious act  of  misconduct".   This language  is            arguably sufficient  to give  Josselyn a liberty  interest in            his New Hampshire  good time  credits in that  it requires  a            "serious  act  of  misconduct" before  the  Commissioner  may            compel  their forfeiture.   Wolff v. McDonnell,  418 U.S. 539                                        _____    _________            (1974),  established that  "due  process requires  procedural            protections  before  a prison  inmate  can be  deprived  of a            protected   liberty   interest   in   good   time   credits."            Superintendent, Mass. Correctional  Institution at Walpole v.            __________________________________________________________            Hill,  472 U.S.  445, 453 (1985).   We will  thus assume that            ____            Josselyn was entitled to advance notice of the charge against            him,  an opportunity  to  present a  defense,  and a  written            statement  by the factfinders as  to the evidence relied upon            and  the  reasons  for  the disciplinary  action.    Wolff v.                                                                 _____            McDonnell, 418 U.S. at 553-67.  But  Josselyn  overlooks  the            _________            fact that he received  notice of the attempted  escape charge                                            ____________________                      received  from  your  facility   will  be                      reviewed  and  considered   by  the   New                      Hampshire  Parole  Board  and  any  other                      review agencies.(emphasis supplied).            Josselyn contends that the emphasized language means that the            NH-DOC could not  require him  to forfeit any  more than  500            good time credits  because that was  the sanction imposed  by            the MA-DOC.  The liberty interest Josselyn claims  under this            paragraph is  the interest  to be free  from punishment  that            exceeds the punishment that was imposed by the MA-DOC.                                         -6-                                          6            and a disciplinary hearing  where he could present  a defense            in  Massachusetts.    See  Habeas Petition,  Exhibit  D  (the                                  ___            Massachusetts disciplinary report  and findings thereon). The            NH-DOC  apparently  relied   on  the  MA-DOC's   findings  in            determining  that Josselyn  must  forfeit all  his good  time            credits.  The advance notice and hearing Josselyn received in            Massachusetts   is  sufficient  to  satisfy  New  Hampshire's            obligation to afford  Josselyn these  procedural due  process            protections before deducting good time credits for his escape            attempt.                   The  record is  unclear as  to  whether the  NH-DOC gave            Josselyn a statement of  reasons for imposing the forfeiture,            but Josselyn unquestionably learned of the forfeiture and had            an opportunity to challenge  it through correspondence to the            New Hampshire  prison authorities.   Exhibit E to  the habeas            petition   includes  two  letters   sent  to  Josselyn  from,            respectively, the  Acting Warden for the  New Hampshire State            Prison and a  Staff Attorney  at the NH-DOC.   These  letters            suggest  that  Josselyn  challenged the  forfeiture  after he            learned of  it  and  that  the  NH-DOC  determined  that  his            contentions  were  meritless.   The  letter  from the  Acting            Warden informed Josselyn that New Hampshire law provided that            the  loss  of all  good  time  was punishment  for  attempted            escape. The  letter from  the Staff Attorney  reiterated that            escape and attempted escape  were treated similarly under RSA                                         -7-                                          7            651-A:22(IV)(b) and further informed Josselyn  that, under an            interstate agreement, Massachusetts  could affect  Josselyn's            New  Hampshire good  time credits  so long  as New  Hampshire            ratified   the  acts   of  the   Massachusetts  authorities.4            Josselyn thus received an explanation for the forfeiture.  He            also  appears to  have  had an  opportunity to  challenge the            forfeiture, although  that opportunity  may only  have arisen            after  the forfeiture  had  been recorded  on Josselyn's  New            Hampshire prison record.  Under these circumstances, Josselyn            appears to have received all the process he was due.                 Josselyn  further  complains  about  the  extent  of  his                                                          ______            punishment in New Hampshire. He contends that the Information            Sheet, quoted supra  at n.  2, gives him  a liberty  interest                          _____            which effectively bars the  NH-DOC from imposing a punishment            in excess of that imposed by the MA-DOC.  But the Information            Sheet does  no such  thing.   In order  to  create a  liberty            interest, prison regulations generally must  employ mandatory            language in  connection with specific  substantive predicates            that limit the discretion of prison  officials to transfer or            punish an inmate.  See, e.g., Parenti v.  Ponte, 727 F.2d 21,                               ___  ____  _______     _____            24  (1st Cir. 1984)(citing Hewitt  v. Helms, 103  S. Ct. 864,                                       ______     _____                                            ____________________            4.  Josselyn contends  that this letter  mischaracterizes New            Hampshire  as the  "sending state."   We  think the  point is            specious.  While New Hampshire might have been the "receiving            state" when Josselyn was first extradited there for  trial in            1986,  it is the "sending state" insofar as Josselyn's prison            sentence is concerned.                                          -8-                                          8            871 (1983)).   The Information Sheet  simply states that  New            Hampshire inmates housed at other institutions are subject to            the  disciplinary system  at  the facility  wherein they  are            incarcerated.   The  Sheet in  no way  purports to  limit the            discretion  vested  in  the  New  Hampshire  Commissioner  of            Corrections concerning  the forfeiture  of good  time credits            under RSA 651-A:22(IV)(b).   Thus, the Information Sheet does            not give Josselyn the liberty interest he claims.                      In  short,  Josselyn's   habeas  petition  and  its            attachments  do  not suggest  that he  has suffered  a double            jeopardy or procedural  due process violation.   Accordingly,            the application for a certificate of probable cause is denied                                                                   ______            and this appeal is terminated.                                            __________                                         -9-                                          9
