
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1002                                     FRED DeWITT,                                Petitioner, Appellee,                                          v.                         DONALD VENTETOULO, ACTING DIRECTOR,                       ADULT CORRECTIONAL INSTITUTION, ET AL.,                               Respondents, Appellees,                                 ___________________                          ATTORNEY GENERAL OF RHODE ISLAND,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                         Selya, Cyr and Boudin, Circuit Judges                                                ______________                                 ____________________            Annie Goldberg,  Assistant Attorney  General, Appellate  Division,            ______________        with  whom Jeffrey  B.  Pine,  Attorney  General,  was  on  brief  for                   _________________        appellant.            David A.  Schechter with whom Margaret-Mary  Hovarth was on  brief            ___________________           ______________________        for appellee.                                  ____________________                                   October 6,  1993                                 ____________________                 BOUDIN,  Circuit Judge.   The  district court  granted a                          _____________            writ of habeas  corpus, which it stayed pending  this appeal,            ordering  the  release from  state  imprisonment  of Fred  E.            DeWitt.   The  basis for  the writ  was the  district court's            decision that  Rhode Island  had acted unconstitutionally  in            increasing DeWitt's  sentence and reimprisoned him  after his            release on  parole.    We agree  with  the  district  court's            decision and affirm.                                          I.                 The constitutional  issue in this case  arises under the            Due  Process Clause  of the  Fourteenth  Amendment.   In some            areas,  such as  search  and seizure,  due  process has  been            reduced to detailed  and nearly mechanical  rules.  In  other            areas, the  precepts are  very general, and  everything turns            upon the circumstances.   The  issue here is  of this  latter            type,  and so  we  begin  with  a  complete  account  of  the            procedural history of this case.                 On March 17,  1978, after  a trial by  jury, DeWitt  was            convicted in Rhode Island  Superior Court of robbery, assault            with intent to murder,  and arson.  These menacing  labels do            not  convey  the  full  measure  of  DeWitt's  evil  conduct.            According to  testimony given  by  the victim,  a woman  then            about  67, DeWitt broke into her home while carrying a knife,            struck her  with his hand and  with a hammer,  engaged in one                                         -2-                                         -2-            brutal  act  after another,  and  then bound  and  gagged the            victim and set fire to her apartment.                   The  superior court  imposed on  DeWitt a  life sentence            which meant  under Rhode Island law that  parole was possible            but not  for a minimum of 10 years.  DeWitt began serving his            sentence in 1978 and  in 1980 his conviction was  affirmed by            the  Rhode Island Supreme Court.   State v.  DeWitt, 423 A.2d                                               _____     ______            828 (R.I. 1980).  Then, in the following year, DeWitt came to            the aid  of  a prison  guard who  was being  assaulted by  an            inmate,  and  DeWitt later  testified  for the  state  in the            prosecution of  the inmate.   There is  some suggestion  that            DeWitt, not surprisingly,  may have suffered at  the hands of            other inmates on account of his rescue efforts.                 In recognition  of these efforts, the  superior court on            June 25, 1981, held a hearing and entered an order suspending            all but 15 years of DeWitt's life sentence and providing that            he would be placed on probation for 20 years from the time of            his future release, whenever  that occurred.1  This shortened            the minimum period before  DeWitt could seek parole,  but six            years   remained  before  DeWitt's   parole  application  was            granted.   In  the meantime,  in mid-1983,  the Rhode  Island            Supreme Court decided State v. O'Rourke, 463 A.2d 1328  (R.I.                                  _____    ________                                            ____________________                 1This revised sentence was imposed  under Rule 35 of the            Rhode Island Rules of  Criminal Procedure which permitted the            court  to correct illegal sentences at any time and to reduce            sentences  within 120 days of either conviction or receipt of            mandate affirming the conviction.                                           -3-                                         -3-            1983), holding that the superior court  could not "suspend" a            sentence once a defendant had begun to serve it.2                 Between  1983 and  1987,  the state  apparently made  no            effort to have the superior court undo its partial suspension            of DeWitt's life sentence.  Instead DeWitt continued to serve            his  sentence,  pursued  education and  training  courses  in            prison, and applied  several times for  parole.  Finally,  in            January  1987, DeWitt  was granted  parole and  released from            prison.  We are told by the state that this occurred about 16            months before the  earliest date on  which DeWitt would  have            been eligible  for  parole if  held  under a  life  sentence.            Thus,  despite  O'Rourke  the prison  and  parole authorities                            ________            continued to  treat DeWitt  as  if the  order suspending  his            sentence in part was still in force.                 During the eight months following his release in January            1987, DeWitt obtained work, beginning a painting business and            then  a siding business.   He  resumed his  relationship with            family  members and  his  girlfriend.    He  also  rented  an            apartment  but  moved  out   after  a  disagreement,   DeWitt            believing that the landlord was billing the entire building's            utilities to DeWitt's  meter.  It was  this latter occurrence                                            ____________________                 2The  court ruled that a state statute, R.I. Gen. Laws              12-19-10, forbad  such suspensions and had  not been modified            in this regard by Rule 35.   O'Rourke, 463 A.2d at 1331.   It                                         ________            appears that  the superior court  judge in DeWitt's  case was            not alone in  assuming, prior to O'Rourke, that  a suspension                                             ________            power did exist under Rule 35.                                          -4-                                         -4-            that  began  the  chain of  events  leading  to this  appeal.            According   to  DeWitt,   he  later   returned  to   his  old            neighborhood  to visit a friend, was invited in by his former            landlord,  and was  then  attacked by  the allegedly  drunken            landlord  and  his wife  with knives.    In the  turmoil, the            landlord and his wife were injured.                 The landlord's  version clearly differed, for  the state            began  criminal  proceedings  against  DeWitt  based  on  the            incident.   The state also  took steps to  re-imprison DeWitt            based  on his  1978  conviction,  but  it  did  not  use  the            customary  method  of  seeking   to  revoke  his  parole  for            violation of the good behavior  conditions.  Instead, after a            hearing on September 21, 1987, the superior court vacated its            earlier June 1981  order that had suspended  in part DeWitt's            original life sentence; the  court's ruling was that O'Rourke                                                                 ________            showed that the original  suspension order had been improper.            DeWitt  is currently being  held in  prison pursuant  to that            reimposed life sentence.                 The rest of  the procedural story  can be briefly  told.            At  some point after September 1987 DeWitt was tried on state            charges growing out of the  knife incident with his landlord,            and  DeWitt  was acquitted  by the  jury.   In  January 1988,            DeWitt made  a new motion  under Rule  35 to  alter his  life            sentence.  The superior court denied the motion  as untimely.            An appeal followed, challenging  both the reimposition of the                                         -5-                                         -5-            life sentence and the denial of the new Rule 35  motion.  The            Rhode Island  Supreme  Court rejected  the  first  challenge,            including DeWitt's express claim that the reimposed  sentence            violated the Due Process  Clause.  State v. DeWitt,  557 A.2d                                               _____    ______            845 (R.I.  1989).  The court ruled that the Rule 35 claim was            timely, but, on remand, the superior court denied the Rule 35            motion on the merits and no appeal was taken.                 On December  11, 1990, DeWitt filed  his habeas petition            in  the district  court.   The  district  court conducted  an            evidentiary  hearing, adducing  many of  the facts  set forth            above.   On  October 20,  1992, the  district court  issued a            memorandum  and  order granting  the  habeas  petition.   The            district  court's  judgment,  which it  stayed  pending  this            appeal, was entered on December 10, 1992.                 Judge Boyle's decision granting DeWitt's habeas petition            relied  directly upon the Due  Process Clause as construed by            this court in  Breest v.  Helgemoe, 579 F.2d  95 (1st  Cir.),                           ______     ________            cert.  denied, 439 U.S. 933 (1978).  There, this court stated            _____________            that "the power  of a  sentencing court  to correct  [upward]            even a statutorily  invalid sentence must be subject  to some            temporal  limit"  and  that  in  some  circumstances  such  a            correction "might be fundamentally unfair, and thus violative            of due  process  . .  . ."   Id.  at  101.   After a  careful                                         ___            analysis  of the  present facts,  Judge Boyle  concluded that            fundamental unfairness did  exist here, especially  given the                                         -6-                                         -6-            state's  failure  to  take any  steps  to  reimpose the  life            sentence  in  the four  years  after  O'Rourke  and prior  to                                                  ________            DeWitt's release.  The state then brought this appeal.                                         II.                 There is  no surer recipe  for confusion than  to answer            two different questions at the same time.  Thus, in assessing            DeWitt's due process claim, we put to one side for the moment            the fact  that  DeWitt may  have violated  the good  behavior            conditions attached to his parole.  Instead, we ask whether--            assuming  arguendo that  no  parole  violation  occurred--the                      ________            superior court was nevertheless  entitled six years after the            event to correct its earlier mistaken grant of Rule 35 relief            and to reimpose the original life sentence.                 The Constitution contains no general rule that prohibits            a  court from increasing an earlier  sentence where the court            finds  that it was erroneous  and that a  higher sentence was            required by law.   On  the contrary, this  has occurred,  and            been upheld against constitutional  or other challenges, in a            number of cases including Breest itself.3   And in principle,                                      ______                                            ____________________                 3See, e.g., United States  v. DiFrancesco, 449 U.S. 117,                  _________  _____________     ___________            133-34 (1980); United  States v. Rico, 902 F.2d 1065, 1068-69                           ______________    ____            (2d Cir.), cert. denied, 111 S. Ct. 352 (1990); United States                       ____________                         _____________            v.  Cook, 890 F.2d 672,  675 (4th Cir.  1989); Littlefield v.                ____                                       ___________            Caton, 856 F.2d 344, 348-49 (1st Cir. 1988); United States v.            _____                                        _____________            Ortega,  859 F.2d 327, 334 (5th Cir. 1988), cert. denied, 489            ______                                      ____________            U.S. 1027  (1989); United States  v. Villano, 816  F.2d 1448,                               _____________     _______            1451 (10th Cir. 1987); Lerner v. Gill, 751 F.2d 450, 458 (1st                                   ______    ____            Cir.),  cert. denied, 472 U.S. 1010  (1985); United States v.                    ____________                         _____________            Lundien,  769 F.2d 981, 986-87 (4th Cir. 1985), cert. denied,            _______                                         ____________            474 U.S. 1064 (1986);  Burns v. United States, 552  F.2d 828,                                   _____    _____________                                         -7-                                         -7-            there is no  difference between  such cases and  a case  like            this  one in which a  sentence is reduced  and later, finding            the  reduction  to  be  unlawful, the  court  reinstates  the            original sentence.                 But in  law what is true for the usual case is often not            true in the  extreme case.  Even  the state conceded at  oral            argument that due process must impose some outer limit on the            power  to revise  sentences upward  after the  fact.   We are            concerned here  not with the substantive grounds of a state's            decision to reduce  or increase a  sentence, but rather  with            the inherently procedural  issue of whether and when  a state            can reopen a matter after  a final unappealed decision, after            a substantial lapse in time during which the state had actual            knowledge of  the error,  and after  a significant  change in            circumstances.   In  short, the  question we  face is  one of            process.            _______                 In Breest, we said  that notions of fundamental fairness                    ______            do place  some temporal limit on later increases in sentence,            579  F.2d at  101, and  the Fourth  Circuit, in  Lundien, has                                                             _______            endorsed this  view.  769 F.2d at 987.  See also Villano, 816                                                    ________ _______            F.2d at 1458 (Logan,  J. concurring).  It is  quite true that            the  cases following  Breest generally  found, as  did Breest                                  ______                           ______            itself, that  the particular upward revision  in question did            not  violate due  process.   A  convicted defendant  does not                                            ____________________            831 (8th Cir. 1977).                                         -8-                                         -8-            automatically acquire  a vested interest in  a mistakenly low            sentence.   Only in the extreme case can a court properly say            that the later upward revision of a sentence, made to correct            an  earlier  mistake, is  so unfair  that  it must  be deemed            inconsistent with fundamental notions of fairness embodied in            the Due Process Clause.  Accord Lundien, 769 F.2d at 987.                                       ______ _______                 In our view,  there is no  single touchstone for  making            this judgment,  nor any multi-part formula.   Rather, drawing            on   considerations  mentioned  by   cases  like  Breest  and                                                              ______            suggested by common  sense, we think  that attention must  be            given--our  list  is  not  exclusive--to the  lapse  of  time            between the  mistake and the attempted  increase in sentence,            to whether or  not the defendant  contributed to the  mistake            and the  reasonableness of  his intervening  expectations, to            the  prejudice worked by a later change, and to the diligence            exercised by the  state in seeking the  change.  To  be sure,            doctrine should evolve toward yardsticks and formulas, making                                   ______            law  more predictable  and  reducing  the  need  for  ad  hoc                                                                  _______            decisions  by  judges.   But that  is  the end  point  of the            journey, and we are at the beginning.                 We start  with the  central and  singular fact  that the            state, which was represented at the hearing in which DeWitt's            sentence  was suspended  in 1983,  took no  appeal from  that            decision, even though an appeal is the ordinary  and expected            way in which  errors are to  be corrected.   The state had  a                                         -9-                                         -9-            second chance also  to correct  the error in  1983 after  the            Rhode  Island  Supreme  Court   held  in  O'Rourke  that  the                                                      ________            suspension power could not be used after a prisoner had begun            to serve his sentence;  once again, the state made  no effort            (so far as the record reveals) to apply to the trial court to            undo the suspension of DeWitt's sentence error.   The process            that  DeWitt received,  therefore, begins  with a  remarkable            double default by the state.  It is not a matter of the state            being estopped:   rather,  in deciding what  is fundamentally            unfair  we cannot ignore the fact that with due diligence the            state  could  have  challenged  the  suspension  long  before            DeWitt's release.             Following  the  state's  double            default, circumstances changed substantially.  In contrast to            cases  like Breest, DeWitt not only continued for a number of                        ______            years in  prison reasonably  believing that his  sentence had            been reduced, but he was actually released.  He remained free            from January 1987 to  September 1987 and laid down  new roots            in society,  acquiring a job and  reestablishing family ties.            Only  at  this  point, did  the  superior  court correct  its            original  mistake and re-imprison him.  The lengthy delay and            change of circumstances are  not decisive but they contribute            to  the  judgment whether  due  process was  afforded  by the            belated reopening.                 Finally, due process requires a weighing not only of the            defendant's interest in finality, but of the state's interest                                         -10-                                         -10-            in correcting error.  Yet there is no sign  that Rhode Island            has  undertaken  any  wide-scale  program  to   identify  and            resentence those  whose earlier sentences  were suspended  in            violation of  O'Rourke.  Rather, DeWitt appears  to have been                          ________            singled  out primarily to relieve the state of the trouble of            conducting a  parole revocation  hearing.  The  impression is            hard  to avoid  that the  resentencing here  primarily serves            only to skirt the minimal due process obligations that attach            to parole  revocations, that the  state could conduct  such a            proceeding at minimal  cost, and that  the state's own  self-            proclaimed interest  in vindicating  O'Rourke  is limited  to                                                 ________            this case.                 As  we have  said, there are  numerous cases  allowing a            sentence to  be increased after  it was initially  imposed in            error.  In virtually  all that we have discovered,  there has            been  some  distinguishing circumstance  that  separates that            case from DeWitt's, for example,  because (as is often  true)            the defendant  was still in  prison, or the  interval between            the  original  sentence  and  its correction  was  brief,  or            because the  defendant almost  certainly knew or  should have            known  that  an error  had been  made.4   Conversely,  we are                                            ____________________                 4Compare  Lerner,  751 F.2d  at  458 (mistake  corrected                  _______  ______            after three years but while defendant still in prison); Cook,                                                                    ____            890 F.2d  at 674 (mistake  corrected after three  weeks while            defendant awaiting a report date for  community confinement);            and Rico,  902 F.2d  at 1068-69 (mistake--of  which defendant                ____            must  have  known--discovered  three  days   after  defendant            erroneously sentenced to time served and released).                                         -11-                                         -11-            completely satisfied,  as Breest  and Lundien said  in dicta,                                      ______      _______            that due process must  in principle impose an outer  limit on            the ability to correct a sentence after the event.                   Thus we face  here the familiar  due process problem  of            deciding how much is  too much.  In concluding  that Dewitt's            case crosses the line, we have taken  into account a range of            considerations:  the multi-year period between the suspension            and  the  reimposition  of  sentence, the  reasonableness  of            DeWitt's reliance,  his release from prison  and formation of            new roots, the unusual  tardiness of the state in  failing to            correct the error from  1983 onward, and the existence  of an            alternative parole  revocation remedy.  These elements cannot            be calibrated precisely, nor can they be taken in  isolation.            The outcome here is the result  of the combined weight of the            elements.                   We reach our conclusion with diffidence  because federal            judges have no monopoly on wisdom in deciding what is unfair,            and even  harsh decisions by state  authorities usually raise            no constitutional issue.  But we are confident that this case            is  very unusual  and that  our  decision imposes  no serious            constraint on  state authorities who, unlike  federal judges,            have the direct  responsibility for  the law-enforcement  and            prosecutorial  tasks at hand.  In  sum, this case is the very            rare exception  to the general  rule that  courts can,  after            sentence, revise sentences upward to correct errors.                                         -12-                                         -12-                                         III.                 We  turn now to Rhode Island's counter arguments and, in            particular,  to  the  issue  we  earlier  reserved concerning            DeWitt's  supposed parole  violation.   The state  has fought            earnestly for its  position that the district  court erred in            granting the writ, but in our view the arguments on which the            state lays most stress are not very compelling.                 The state argues broadly that the original suspension of            DeWitt's life  sentence was a  matter of discretion,  and the            decision  to parole  him before  the end  of his  new 15-year            sentence was likewise discretionary.  From these premises the            state  concludes  that  DeWitt  cannot have  an  interest  in            remaining at large that is protectable under the Due  Process            Clause.   But it  is one thing  to say that  DeWitt could not            have compelled  the suspension of  sentence or  the grant  of            parole;  it is quite another  to ignore the  reality that the            discretion  was exercised in his  favor and the  state is now            trying to withdraw what it has bestowed.                 Rhode Island is not  required to give away  its property            but if it gave away its state house as a gift, it is unlikely            it  could get it back without paying just compensation to the            new owner.   More closely on point, the state  is not obliged            by the Constitution to parole  its prisoners, but having done            so, it is obliged to afford them due process--what process is            due is another matter--when it revokes paroles.  Morrissey v.                                                             _________                                         -13-                                         -13-            Brewer, 408  U.S. 471, 481  (1972).  The case  relied upon by            ______            the state for its  discretion argument, Greenhotz v. Nebraska                                                    _________    ________            Penal Inmates, 442 U.S. 1 (1979), involved the very different            _____________            question whether the state is obliged to provide due  process            in deciding whether to grant parole.                        _______                 The state's main arguments in this case are narrower and            center upon DeWitt's  fight with his former landlord.  DeWitt            was  warned, the state points  out, that his  parole could be            revoked  if he  got  himself  into  trouble.    That  he  was            acquitted by a jury  of causing the trouble, says  the state,            means nothing; the burden of proof in that trial was beyond a            reasonable  doubt, while  in  parole  revocation,  state  law            requires only  evidence that  would "reasonably  satisfy" the            decision-maker  that   a  violation  occurred.     Walker  v.                                                               ______            Langlois, 243  A.2d  733,  737  (R.I. 1968).    Quoting  from            ________            DeWitt's own testimony about the incident, the state suggests            that  DeWitt's version of  the struggle with  the landlord is            contradictory and improbable.                 These arguments remind one  of a boxer leading  with his            chin.   No one doubts that the state could at the outset have            conducted a  proceeding to revoke DeWitt's  parole.  DeWitt's            story  that  he  was  attacked  without  provocation  by  the            landlord  and his wife, both  armed with knives,  is one that                      ___            any  parole  board  lawyer  might  enjoy  testing  on  cross-            examination.   The Constitution has  not been read to require                                         -14-                                         -14-            proof  beyond  a  reasonable  doubt in  a  parole  revocation            proceeding.   E.g., Whitehead v. U.S.  Parole Commission, 755                          ____  _________    _______________________            F.2d 1536,  1537 (11th Cir. 1985).   If the state  found that            DeWitthad misbehaved,it could havesurely cancelledhis parole.                 But  this is  not  what happened.    There has  been  no            official determination  of wrongdoing  by DeWitt, and  he has            not been returned to prison to serve a 15-year sentence.  The            state can hardly expect that this court will determine, based            on the state's selection  of transcript excerpts, that DeWitt            was at fault.  It may well be that under Rhode Island law the            state  can still  revoke DeWitt's  parole  on account  of the            knifing  incident.   We  have  no  competence to  revoke  the            parole, and  no occasion to consider any  federal claims that            DeWitt might make  against such  a remedy.5   But as  matters            now stand,  DeWitt  is  being  held pursuant  to  a  judgment            sentencing  him to life  imprisonment, a  judgment unlawfully            reimposed on DeWitt in violation of the Constitution.                 In  the  concluding  section  of its  brief,  the  state            asserts  in one sentence that DeWitt's claim in this court is            foreclosed by  his  failure to  appeal  to the  Rhode  Island                                            ____________________                 5Possibly DeWitt would argue  that due process precluded            revoking his parole for  misconduct after the jury acquittal.            However,  like most  circuits, we  have sustained the  use of            "acquitted  conduct"   to   increase  sentences   under   the            Sentencing Guidelines,  based on  the same distinction  as to            burden of proof  urged by Rhode  Island in this case.   E.g.,                                                                    ____            United States  v.  Mocciola, 891  F.2d  13, 16-17  (1st  Cir.            _____________      ________            1989).                                           -15-                                         -15-            Supreme Court after the  superior court on remand  denied his            new Rule  35 motion.  When that motion was denied, DeWitt had            already presented to  the Rhode Island Supreme  Court the due            process  claim on  which we  pass today,  and that  court had            already rejected that claim  on the merits.  DeWitt  had thus            fully  exhausted  his state  remedies  to  vindicate his  due            process  claim,  and  the  state's  exhaustion  objection  is            meritless.                 Affirmed.                 ________                                         -16-                                         -16-
