October 18, 1994
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-2385

                     ROBERT C. BEAUCHAMP,

                    Petitioner, Appellee,

                              v.

            PAUL MURPHY, THE SUPERINTENDENT OF THE
               OLD COLONY CORRECTIONAL CENTER,

                    Respondent, Appellant.

                                         

                         ERRATA SHEET

The  opinion  of this  court  issued  on  September  26, 1994,  is
amended as follows:

On  page 13, delete the first full paragraph  and replace with the

following paragraph:

   "In  the  state  court   proceeding,  the  Department   of
Correction also provided  an affidavit from the  chief of its
fugitive  apprehension unit  making similar  contentions; but
this, too, was essentially a litigation document and did  not
suggest that Washburn had  any personal involvement in making
the decision to deny credit to Beauchamp.  It is questionable
whether either the arguments made in the state's brief or the
Washburn affidavit  amount to anything  more than  a kind  of
"post  hoc rationale" that courts do not normally accept as a
          
basis for appraising administrative  action.  NLRB v. Yeshiva
                                                             
Univ., 444 U.S. 672, 675 n.22 (1980).  In  any event, neither
     
document  suggests  any  individualized  attempt   to  target
Beauchamp."

October 4, 1994     UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                      

No. 93-2385

                     ROBERT C. BEAUCHAMP,

                    Petitioner, Appellee,

                              v.

            PAUL MURPHY, THE SUPERINTENDENT OF THE
               OLD COLONY CORRECTIONAL CENTER,

                    Respondent, Appellant.

                                        

                         ERRATA SHEET

 The  opinion  of this  Court, issued  on  September 26,  1994, is
amended as follows:

 On page 13, line 1 of footnote 2, continued from page 12, replace
"context" with "contest".

 On page 17, second line from bottom, replace "But" with "By".

 On page 19, line 8 of second full paragraph,  replace "does" with
"do".

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-2385

                     ROBERT C. BEAUCHAMP,

                    Petitioner, Appellee,

                              v.

            PAUL MURPHY, THE SUPERINTENDENT OF THE
               OLD COLONY CORRECTIONAL CENTER,

                    Respondent, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. A. David Mazzone, Senior U.S. District Judge]
                                                       

                                         

                            Before

                     Selya, Circuit Judge,
                                         
                Bownes, Senior Circuit Judge,
                                            
                  and Boudin, Circuit Judge.
                                           

                                         

William J. Duensing,  Assistant Attorney General, with whom  Scott
                                                                  
Harshbarger, Attorney General, was on brief for appellant.
       
Joseph H.  Zwicker  with  whom  Massachusetts  Correctional  Legal
                                                                  
Services was on brief for appellee.
    

                                         

                      September 26, 1994
                                         

     BOUDIN,  Circuit  Judge.    This   appeal  presents  the
                            

question whether Massachusetts was  constitutionally obliged,

under  the circumstances  of this  case, to  give an  escaped

convict  credit against  his Massachusetts sentence  for time

spent  in  an Illinois  jail  resisting  extradition back  to

Massachusetts.    The  district  court  in  a  habeas  corpus

proceeding held that the Constitution required such a credit.

We disagree, and reverse.

     The facts  are straightforward.  On February 23, 1973, a

jury found  Richard Beauchamp guilty of  second degree murder

in Massachusetts.   He  received a life  sentence but,  under

Massachusetts law, was nevertheless eligible for parole after

14  years.   Scarcely  a  year  later,  on  April  29,  1974,

Beauchamp was released from prison on a 12-hour furlough.  He

fled  from  Massachusetts.   Beauchamp  thereafter  lived "in

various   places   under    different   names   with    false

identification  and  largely  by  his  wits  and  deception."

United States ex rel.  Beauchamp v. Elrod, 1987 WL  15164, *2
                                         

(N.D. Ill. 1987).  

     On  July  6, 1981,  Beauchamp  was  arrested on  federal

charges  in California.    Shortly thereafter,  Massachusetts

learned of the arrest and notified the federal authorities of

the  Commonwealth's  desire  to  have  Beauchamp returned  to

Massachusetts prison.  After serving a nine-month sentence in

California   on   federal  charges,   Beauchamp   waived  his

                             -2-

objections  to  extradition to  Illinois  where  federal mail

fraud charges had been  lodged against him.  While  there, he

was convicted and sentenced to  a brief term of imprisonment.

After  that sentence  expired,  he appeared  on February  17,

1983,  in Illinois  state  court on  an Illinois  misdemeanor

charge of deceptive practice.

     Illinois dismissed  its misdemeanor charge on  March 11,

1983, anticipating Beauchamp's extradition  to Massachusetts.

In April the governor of Illinois issued a rendition warrant,

but  Beauchamp  refused to  waive  extradition.   Instead  he

brought  a  state   habeas  corpus  action   challenging  his

extradition on  a variety  of inventive  grounds.   The state

habeas corpus  petition was denied on November  10, 1983, but

by an appeal and then  a rehearing petition Beauchamp delayed

a final disposition until November 1985.  Beauchamp v. Elrod,
                                                            

484 N.E.2d 817 (Ill. App. 1985).

     Beauchamp then began a federal habeas corpus proceeding.

In  Illinois, Beauchamp claimed that the Massachusetts murder

had been committed at the CIA's behest and that Massachusetts

prison  officials  had  thereafter  connived  at  Beauchamp's

escape from Massachusetts prison.  The district court held an

evidentiary hearing but  then denied relief, concluding  that

the facts alleged by Beauchamp would not in any event furnish

a defense to extradition.  United States ex rel. Beauchamp v.
                                                          

Elrod, supra, 1987 WL 15164, *2.
            

                             -3-

     On  August 7,  1987, Beauchamp  was finally  returned to

Massachusetts.   He pleaded  guilty to a  separate charge  of

escape  from prison,  but no  separate sentence  was imposed.

Beauchamp then began a campaign to obtain credit, against his

Massachusetts second-degree murder sentence, for  a four-year

period (March 11, 1983, to August 7,  1987) that he had spent

in  the   Illinois  jail   while  resisting   extradition  to

Massachusetts.   Although credit would not  reduce his formal

sentence,  which  was  for  life  imprisonment, credit  would

reduce the wait before Beauchamp was eligible for parole.

     The  Massachusetts  authorities  were  prepared  to give

Beauchamp  credit  for  his  very brief  period  in  Illinois

custody after  his extradition challenges had  failed so that

Massachusetts  was  free  to  take him  into  custody.    The

authorities refused  his request for any  further credit, and

Beauchamp then  sought judicial  review.  The  superior court

granted Beauchamp's  request for full credit  but the Supreme

Judicial Court reversed, holding  that no credit was due  for

the   time   spent   in   Illinois   resisting   extradition.

Commonwealth v. Beauchamp, 595 N.E.2d 307 (Mass. 1992).
                         

     On  October 1,  1993,  Beauchamp  commenced the  present

action for habeas corpus in the  district court.  28 U.S.C.  

2254.   In  a thoughtful  decision rendered  on November  18,

1993, the district court granted the writ, ordering the state

to allow the  1,574 days'  credit sought by  Beauchamp.   The

                             -4-

court ruled that to  deny the credit would unconstitutionally

burden  Beauchamp's right  to  contest extradition.   In  the

alternate,  the court  held  that denial  of  the credit  was

unconstitutional retaliation by the state.

     On  this appeal,  the  Commonwealth  first  claims  that

Beauchamp did not adequately exhaust his state remedies.   In

the  district court, as here,  Beauchamp has invoked both due

process and equal protection  concepts.  Due process underlay

Beauchamp's    argument    that    the    Commonwealth    has

unconstitutionally burdened his right of access to the courts

and  impermissibly  retaliated   against  him.     The  equal

protection   claims  were   of  two   kinds:     first,  that

Massachusetts  provides  credit  for  time  spent  contesting

extradition  to some  extradited  persons but  not to  prison

escapees;  and  second, that  denial  of  such credit  favors

affluent fugitives over those who cannot make bail.  

     In  arguing a  failure  to exhaust  state remedies,  the

Commonwealth  singles  out the  equal  protection claim  that

Massachusetts grants  credit to  some extradited persons  and

withholds it from others based on irrational criteria.  Under

Rose  v.  Lundy, 455  U.S.  509  (1982), Beauchamp's  federal
               

petition  may be  dismissed if  he failed  to present  to the

state courts any  of the  federal claims now  asserted.   The
                

district court must dismiss such "mixed petitions,"  "leaving

the prisoner with the  choice of returning to state  court to

                             -5-

exhaust his claims or of amending  or resubmitting the habeas

petition  to present  only exhausted  claims to  the district

court."  Id. at 510.
            

     In his  brief to  the Supreme Judicial  Court, Beauchamp

had  a  separate  section   devoted  to  "state  and  federal

guaranties of  due process,"  whose adequacy  (for exhaustion

purposes) the Commonwealth does  not challenge, and a section

on  "federal  equal protection,"  which  makes  the indigency

argument  briefly  but  adequately.    The  equal  protection

argument based on irrational  classification was set forth in

a prior section, under the heading "state constitution--equal
       

protection,"  which begins  with  a reference  to "the  state

guaranty of equal protection."  As the last paragraph of this

section--after the supposedly irrational classifications have

been described--the brief concludes:

          Over   and  above   state  constitutional
          requirements  governing  by which  branch
          and on  what basis the  rule proposed [by
          the Commonwealth denying  credit] can  be
          adopted,  the  rule  violates  state  and
          Federal  Constitutional   constraints  on
          how,  why, and  upon  whom  a  denial  of
          liberty  can be imposed.   These  are the
          constraints  of Federal  equal protection
          and  due  process  guaranties under  both
          Constitutions.

     It is  possible to  read  this final  paragraph, as  the

district  court  apparently  did,  to  be  a  federal  equal-

protection attack  on the classifications  just criticized at

length  in the same section  of Beauchamp's brief.   The more

                             -6-

natural  meaning of  the  paragraph may  be to  read it  as a

transition  to  the  two   sections  that  follow  which,  as

mentioned  above, address  "federal equal  protection" (where

the  indigency issue  is  discussed) and  "state and  federal

guaranties of  due process" (where  the access to  the courts

issue is discussed).

     However this may  be, we have no intention of dismissing

the  case  under  Rose  v.  Lundy.    The  substance  of  the
                                 

irrational  classifications argument  was amply  explained in

Beauchamp's state brief and  his criticisms were not premised

on   any  peculiarity   of  language  in   the  Massachusetts

Constitution  or  any unusual  state  court  precedent.   The

Supreme  Judicial Court  can hardly  have been  misled merely

because the reference to federal equal protection occurred at

the end of  the argument instead  of the beginning.   Had the

caption of the argument read "federal and state constitution-

-equal protection," the substance would have been exactly the

same.

     Rose v. Lundy assures that state  courts have the chance
                  

to  pass  on  federal constitutional  issues  before  federal

courts  intrude on  the state  criminal process.   Where  the

state court has not fairly been apprised of a  constitutional

argument, exhaustion is required.  See Nadworney v. Fair, 872
                                                        

F.2d  1093 (1st Cir. 1989).   But in  this context "substance

rather  than form"  is critical,  872 F.2d  at 1101,  and the

                             -7-

Supreme  Judicial  Court would  not  have  viewed the  matter

differently if the word "federal" had appeared in the heading

ofthesection thatsetoutthe irrationalclassificationsargument.

     We  turn, therefore,  to the merits  and begin  with the

district  court's  holding  that  the  denial  of  credit  to

Beauchamp impermissibly  forecloses or burdens the  "right of

access"  to  the  courts.     Undoubtedly,  Beauchamp  has  a

constitutional right of access to the courts, e.g., Bounds v.
                                                          

Smith, 430 U.S. 817,  821 (1977), and if Illinois  had barred
     

Beauchamp from  filing a  federal habeas action  to challenge

his  detention, serious constitutional  concerns would arise.

We  will assume  arguendo that  the federal  right of  access
                         

included the state habeas proceeding as well.

     No  one, however,  prevented Beauchamp  from filing  his

successive habeas actions in Illinois.  Rather, the  issue is

whether   Massachusetts' refusal to  credit the time spent in

this   litigation   is   an   unconstitutional   burden  upon
                                                       

Beauchamp's  right  of access.    Here,  the Supreme  Court's

decisions provide  relatively little direct guidance.  Burden

issues,  presenting the familiar  problem of how  much is too

much, peculiarly depend on facts and context, and the Supreme

Court  has not had much to say about the relationship between

extradition challenges and the  refusal to credit time served

in an out of state jail.

                             -8-

     Where   burdens   are   laid   upon  the   exercise   of

constitutional  rights  by  prisoners,  the  Supreme  Court's

current approach is to give  very substantial latitude to the

state's  judgment.   E.g.,  Turner  v.  Safley, 482  U.S.  78
                                              

(1987);  compare Procunier  v. Martin,  416 U.S.  396 (1974).
                                     

But such cases differ because they involve the actual running

of  prisons   and  the   most  practical   considerations  of

discipline,  security,  administrative feasibility  and cost.

While some of these concerns may apply in this case, they are

greatly  diluted  when  the issue  is  the  calculation of  a

sentence, a task performed by an administrator with a pencil.

     If  one looks for analogies to our own case, the closest

ones in the Supreme Court appear to be two decisions, both of

which concern  burdens on litigation choices  provided to the

defendant.  In United States v. Jackson, 390 U.S. 570 (1968),
                                       

the Court held  it unconstitutional to subject a kidnapper to

a possible  death  penalty if,  but  only if,  the  defendant

elected a jury trial.  North Carolina v. Pearce, 395 U.S. 710
                                               

(1969),  with  equal  firmness,  held that  a  defendant  who

chooses  to appeal  a  conviction may,  where successful,  be

given a higher sentence in a subsequent retrial.  Jackson was
                                                         

plainly influenced by  the enormity of  the penalty, so  that

Pearce--where   seven   justices  seemed   unconcerned  about
      

deterring appeals--may be the more pertinent guidepost.

                             -9-

     Taking together Turner, Jackson  and Pearce, the best we
                                                

can say is  that the  burden on the  opportunity to  litigate

cannot be unreasonable, and reasonableness largely turns upon

the facts.  With some emphases peculiar to prison regulation,

Turner  itself identifies  pertinent criteria:    whether the
      

state's  policy serves  a  valid  governmental interest;  the

extent to  which the  prisoner is  foreclosed or burdened  in

exercising  his  rights;  and  the  presence  or  absence  of

reasonable alternatives  for  the government  to achieve  the

same  ends  by  other   means  without  significant  cost  or

impairment of the  governmental interest at stake.   482 U.S.

at 89-91.1 

     In  this  case  the  governmental  interest  is  patent:

Massachusetts  is entitled  to shape  its own  sentences and,

within very  broad  limits,  is  entitled to  insist  that  a

sentence  of  so   many  years  means   years  served  in   a
                                                             

Massachusetts prison.  E.g., Boutwell v. Nagle, 861 F.2d 1530
                                              

(11th Cir. 1988), cert. denied, 490 U.S. 1099 (1989); Pernell
                                                             

v. Rose, 486 F.2d 301 (6th Cir. 1973), cert. denied, 415 U.S.
                                                   

985 (1974).  True,  serving part of the sentence  in Illinois

may not be very different.  But this is a practical matter on

which views may vary.  Further there is a symbolic importance

                    

     1A fourth consideration mentioned in  Turner--any ripple
                                                 
effect of the remedy sought upon the correctional institution
and other inmates--was linked peculiarly to prison operations
and the special need  for deference to corrections officials.
Id. at 90.
   

                             -10-

to the state's ability,  as a separate sovereign  in criminal

law enforcement, to shape its own procedures and penalties.

     Turning to  the impact on escaped  prisoners, the denial

of credit clearly  does not foreclose  access to the  courts,

and  we  think  it  unlikely that  colorable  claims  against

extradition will be discouraged.   The legitimate grounds for

challenging  a rendition  warrant are  narrow and  reasonably

clear-cut.  See Commonwealth v. Beauchamp, 595 N.E.2d at 309-
                                         

10.   If an alleged escapee  subject to such a  warrant has a

substantial defense to  extradition and thus  a fair to  good

prospect  of avoiding a return to certain imprisonment, he or

she  is not likely to be  discouraged by a penalty (denial of

credit) that will never be visited if extradition is blocked.

     Finally, there  is no "ready alternative"  to the denial

of credit.   See Turner, 482  U.S. at 90.   If  Massachusetts
                       

does  give credit to Beauchamp,  it defeats the very interest

that  underlies the  no-credit rule:   that  the Commonwealth

fixes  the place of imprisonment, not the prisoner.  "To rule

otherwise would allow the defendant to choose the State where

he  would  serve  a  significant portion  of  his  sentence."

Beauchamp,  595  N.E.  at  310.    "[T]he  absence  of  ready
         

alternatives  is  evidence   of  the   reasonableness  of   a

[challenged state policy]."  Turner, 482 U.S. at 90.
                                   

     Accordingly, if the choice is between the burden laid on

legitimate  challenges and  the state's interest  in defining

                             -11-

its  own  sentences,  we think  that  the  state interest  is

legitimate,  the  burden  is   very  light,  and  no  obvious

alternative is available to achieve  the former and avoid the

latter. But two further questions remain:  one is whether the

state's decision  to deny  Beauchamp credit  is tainted  by a

retaliatory motive, and the other is whether the singling out

of escaped  prisoners presents  an equal  protection problem.

We address these issues in that order.

     The  district court,  in  addition to  finding an  undue

burden  upon  Beauchamp's  right  of access  to  the  courts,

declared that the  Commonwealth sought to  penalize Beauchamp

for resisting extradition:

     The  Department of  Corrections' refusal  to credit
     [Beauchamp's] sentence  with the time  he spent  in
     custody challenging extradition cannot stand.   The
     record  suggests  that   in  refusing   Beauchamp's
     request     for     credit,    the     Commonwealth
     unconstitutionally penalized him for exercising his
     right to contest  rendition to Massachusetts;  [the
     Commonwealth] has not shown otherwise.

Although this may look like a "finding" of the motive for the

Commonwealth's   action,  the  situation   is  somewhat  more

complicated than that.

     First, there is no record evidence concerning the motive
                       

of Department of Corrections'  personnel who made the initial

decision.   Both the district court  decision and Beauchamp's

brief  rely upon  arguments  made in  the attorney  general's
                           

brief  in the state's  highest court that  "to provide credit

toward  [an  escapee's]  sentence  .   .  .  for  time  spent

                             -12-

contesting extradition opens the floodgates  to a significant

increase in  extradition contests  by escaped inmates."2   We

are in the same position as the district court to reason from

the attorney  general's written  argument, so that  the clear

error doctrine has no application here.

   In  the   state  court   proceeding,  the   Department  of

Correction  also provided an affidavit  from the chief of its

fugitive  apprehension unit  making similar  contentions; but

this, too,  was essentially a litigation document and did not

suggest that Washburn had  any personal involvement in making

the decision to deny credit to Beauchamp.  It is questionable

whether either the arguments made in the state's brief or the

Washburn  affidavit amount  to anything more  than a  kind of

"post  hoc rationale" that courts do not normally accept as a
          

basis for appraising administrative  action.  NLRB v. Yeshiva
                                                             

Univ., 444 U.S.  672, 675 n.22 (1980).  In any event, neither
     

document  suggests  any  individualized  attempt   to  target

Beauchamp.

     Second,   we  do   not   think   that   unconstitutional

retaliation is involved  even if we assume arguendo  that the
                                                   

                    

     2The district court does say  that if Beauchamp had  not
contested extradition, he would have received credit for time
spent in Illinois "for those same days of imprisonment."  But
those "same days"  would never have existed  if Beauchamp had
agreed to  extradition, and in fact  Massachusetts did credit
Beauchamp with  the very brief  time spent in  Illinois after
his  extradition  contest  failed  and he  was  available  to
Massachusetts.

                             -13-

correctional authorities do believe that  giving credit would

spur  time-wasting challenges to  extradition.  General rules

often rest  upon multiple considerations,  and concerns about

abusive litigation underlie a number of federal rules adopted
                                               

by  the courts  themselves.   These  include restrictions  on

habeas corpus itself,  e.g., McKleskey v. Zant, 499 U.S. 467,
                                              

491 (1991), and sanctions  under Fed. R.  Civ. P. 11, not  to

mention   various   common  law   torts  such   as  malicious

prosecution.

     The Commonwealth's  policy, even  if resting in  part on

litigation  concerns, seems to us a mile away from a warden's

decision  to disadvantage  a prisoner  because  that prisoner
                                              

filed  a law  suit against the  warden.   This is  not, or at

least  has not  been  shown  to  be,  a  case  of  individual

retaliation for pursuing constitutional  rights.  At most, as

one element in a legitimate decision generally to deny credit

to escaped  prisoners for time  spent outside  Massachusetts,

the  state has given some  weight to the  benefits of getting

the escapee back promptly where he or she belongs.

     We  turn finally  to  the claim  that Massachusetts  has

denied equal  protection to Beauchamp, a  claim not addressed

by  the  district  court  but  advanced  by  Beauchamp  as an

alternative  basis to  sustain  the judgment.   Beauchamp  is

entitled  to  defend the  district  court's  judgment on  any

properly  preserved ground  that would  serve to  sustain it,

                             -14-

whether or not adopted  by the district court.   E.g., Martin
                                                             

v. Tango's Restaurant,  969 F.2d 1319, 1325 (1st  Cir. 1992).
                     

The equal protection  claim based on indigency  made in state

court has not been renewed before us.  Cf. Palmer  v. Dugger,
                                                            

833  F.2d 253  (11th Cir.  1987)   We proceed,  therefore, to

Beauchamp's  claim that  Massachusetts applies  its no-credit

rule based on irrational classifications.

     As the foundation  for his  argument, Beauchamp  asserts

that   "Massachusetts  awards   sentence  credit   to  parole

violators and  pre-trial detainees  for time served  in other

states contesting extradition to  Massachusetts."  It is true

that  by statute,  Massachusetts requires  that  prisoners be

credited with  time served during pretrial  detention.  Mass.
                                          

Gen.  L. ch. 127,    129B, ch.  279,   33A.   Another statute

denies  credit to  a parole  violator for  time spent  out of

prison  during revocation proceedings.   Id., ch. 127,   149.
                                            

Where no statute  applies--as in  the case of  time spent  in

detention  out  of  state  while  resisting  extradition--the

Massachusetts courts apply a test of fairness.3

     Other  than Beauchamp  the  only other  decision by  the
                          

Supreme  Judicial  Court  involving an  escaped  prisoner  is

Chalifoux.  In that  case, the escapee was sentenced  to time
         

                    

     3E.g.,  Beauchamp,  595  N.E.2d  at  926;  Chalifoux  v.
                                                         
Commissioner of Correction, 377 N.E.2d 923, 926 (Mass. 1978);
                          
Commonwealth v.  Grant, 317 N.E.2d 484,  486-87 (Mass. 1974);
                      
Brown  v. Commissioner  of  Correction, 147  N.E.2d 782,  784
                                      
(Mass. 1958).

                             -15-

by a California court intended to  be served concurrently, in

Massachusetts, upon extradition there.  Massachusetts refused

to  accept immediate  rendition  because of  overcrowding and

then, after the California  sentence had been served, refused

to reduce  the Massachusetts sentence  for the time  spent in

California.  On fairness  grounds, the Supreme Judicial Court

ordered  a credit.  Taking  the two cases  together, we think

that the prevailing  practice in Massachusetts is  apparently

to deny credit to escaped prisoners for time spent litigating

extradition, absent extraordinary  circumstances or  distinct

equities.4

     One must  tread cautiously  in generalizing about  equal

protection, for there are  countless Supreme Court precedents

that  cannot all be reconciled  even in hundreds  of pages of

erudite discussion.  See,  e.g., L. Tribe, Constitutional Law
                                                             

1436-1672 (2d  ed. 1988).  The  classification here, however,

is  between prison escapees  and other  fugitives and  is far

from any  previously deemed suspect.   Compare, e.g., Palmore
                                                             

v.  Sidoti, 466  U.S.  429  (1984)  (racial  classification).
          

Similarly, the  classification does not in  any sense deprive

or deny to anyone a fundamental right; at most, it may impose

                    

     4See also  In re  Kinney, 363  N.E.2d 1337,  1338 (Mass.
                             
App.  Ct.  1977) (stating  the  general rule  that  an escape
"suspend[s] the  running of the original  sentence until such
time  as   [the  defendant]   should  be  returned   to"  the
institution from which he escaped).

                             -16-

a conjectural and  incidental burden  unlikely to  discourage

any substantial objections to extradition.

     Since there is no suspect classification here  involved,

nor any deprivation of fundamental rights, the ordinary equal

protection  test is  extremely  deferential.    The  standard

formula   is    that   a   non-suspect    classification   is

unconstitutional only if no  legitimate basis can be imagined

to support it.  E.g.,  Harrah Independent School District  v.
                                                         

Martin, 440 U.S. 194 (1979).  And "support" means only that a
      

legislature--or, here,  a state  court acting in  its stead--

could provide a rational  basis for the choice.   E.g., Vance
                                                             

v. Bradley, 440 U.S. 93, 111 (1979).
          

     Turning   to  the   distinctions  assertedly   drawn  by

Massachusetts,   pretrial   detainees   (whether    held   in

Massachusetts  or  held outside  the  state  while contesting

extradition)  are a peculiarly  sympathetic case  for credit;

these  are presumptively innocent  individuals held primarily

to assure their presence at trial.  Credit for such detention

is widely  available.   There is nothing  whatever irrational

about a general  rule that pretrial detention time  should be

credited as a matter  of course, nor does it  conflict with a

presumptive rule  against credit for time spent  out of state

by one who is convicted and later escapes from prison.

     A closer case is presented  by the fact, if fact  it is,

that  credit is given to a parolee who violates parole, flees

                             -17-

the   state   and   then   contests   extradition   back   to

Massachusetts.5   But an escape from prison, even by one on a

12-hour pass,  can rationally  be treated  as a  more serious

default than a parole violation.  By the same token the state

may take a more  sympathetic view of time spent  in detention

out of state by  one who was out  on liberty than by  one who

was suppose to be residing in a Massachusetts prison.  Again,

the distinction is not irrational.

     Beauchamp says  that these supposed  exceptions undercut

any assertion by  the Commonwealth that  it is interested  in

having  a Massachusetts sentence served only in Massachusetts

jails.   But a legitimate  interest does not  cease to  be so

because   rational  exceptions   are  made   on  account   of

countervailing  general  concerns  or   individual  equities.

Here, some of the exceptions are more compelling than others,

but none involves  a suspect classification or is outside the

bounds of  minimal  rationality so  as to  violate the  equal

protection clause of the 14th Amendment.

     Beauchamp's  final claim  is that  the denial  of credit

violates the  Fifth  Amendment's prohibition  against  double

jeopardy  made  applicable to  the  states  through the  14th

Amendment's due process clause.   The Supreme Court precedent

                    

     5The state has submitted a letter  agreeing that this is
the policy  followed and arguing  that it is  consistent with
Mass. Gen. L. ch. 127,   149.  See also Blake v. Rapons, C.A.
                                                       
No. 91-0795B (Mass. Super. Ct., April 21, 1991).

                             -18-

relied  upon  by Beauchamp  is  North Carolina  v.  Pearce, a
                                                          

different aspect of which  was discussed above.  In  Pearce a
                                                           

defendant served part  of his sentence for  an offence before

getting the conviction overturned on appeal.  Then on retrial

he  was convicted  and  resentenced.   In  the new  sentence,

Pearce was denied credit  for the time he served  incident to

the first conviction for the same crime.  

     In the ruling relied on by Beauchamp,  the Supreme Court

held that  this denial of credit violates the double jeopardy

clause's  prohibition against  "multiple punishments  for the

same offense," 395 U.S. at 717, observing:

     [T]his basic constitutional  guarantee is  violated
     when  punishment already exacted  for an offense is
     not fully  "credited" in  imposing sentence  upon a
     new conviction for the same offense.  

Id. at  718.  We think  that the formal holding  of Pearce on
                                                          

this issue has no application to Beauchamp.  In our case, the

time spent  in Illinois was  not formally a  "punishment" for

the  Massachusetts  second-degree  murder  conviction  but  a

decision by Illinois to  hold Beauchamp--who had already fled

once--pending  extradition  to  complete   his  Massachusetts

sentence.

     Formalities   deserve  weight   in  applying   a  fairly

technical  constitutional  prohibition  such  as  the  double

jeopardy clause.  That  is the lesson of the  Court's further

holding  in Pearce that a stiffer sentence on retrial after a
                  

successful appeal does not  offend the clause.  See  395 U.S.

                             -19-

at 711.   The same  formal approach is  implicit in  the even

more   famous  holding  that   separate  state   and  federal

punishments for  the same conduct  do not violate  the double

jeopardy clause.   E.g., Heath  v. Alabama, 474  U.S. 82,  89
                                          

(1985).

     The force  of Beauchamp's argument  does not lie  on the

technicalities  of double  jeopardy.   Its essence  is  a due

process  appeal  to concepts  of fundamental  fairness: after

all, but for the  Massachusetts detainer, Beauchamp would not

have  spent four years in an Illinois jail; and the result of

denying him credit is to hold him in custody, if the Illinois

and  Massachusetts  terms are  combined,  for  more than  the

minimum  term otherwise  available  in  Massachusetts.   This

argument would  have special force  if, for example,  a state

denied  credit to  a  convicted prisoner  for  time spent  in

pretrial detention.

     But  this is a one-sided portrayal of the events in this

case.   Beauchamp's stay  in the  Illinois  jail is  causally

related not only  to his Massachusetts  sentence but also  to

his own action in escaping from Massachusetts prison and then

resisting extradition (mainly on  spurious grounds).  And, as

we have  explained above, Massachusetts has  a legitimate, if

partly symbolic, interest in  having the full sentence served

in its own prison.  To  deny Beauchamp credit is simply not a

                             -20-

case of fundamental  unfairness in the constitutional  sense.

Compare Rochlin v. California, 342 U.S. 165 (1952).
                             

     The Massachusetts rule could  strike some observers as a

severe one, but an arguably severe rule is not  automatically

unconstitutional.  Where as here  the underlying issue is one

of minimum fairness and  rationality, a federal court polices

the outer perimeter.  Where issues are ones on which rational

and  civilized  men  and  women can  reasonably  differ,  the

resolution of such choices is not for us.  

     Reversed.
             

                                         Dissent follows.

                             -21-

BOWNES, Senior Circuit Judge, dissenting.
                            

          The  court has written  a very  persuasive opinion.

This is due to a combination of two factors:  the outstanding

skill  and writing style of the author; and its invocation of

the doctrine of "fundamental fairness" to reach a result that

seems at  first blush to  be fair and  just.  After  all, why

should an escaped felon be rewarded for resisting extradition

to the state from  which he fled prison?  I dissent, however,

because  I think the court's opinion does not meet head-on an

important constitutional  issue raised by  petitioner.   This

issue was, in my  judgment, squarely confronted and correctly

decided by the district court.

          With respect,  I do not think that  the basic issue

is "fundamental  fairness"; instead, I believe  it is whether

petitioner's constitutional right of access to the courts was

violated.   For  the reasons  that follow  I think  that this

constitutionally guaranteed right was abridged.

          An inmate has no independent federal constitutional

right  to credit on a sentence lawfully imposed by one state,

for  time spent  in the  custody of  another state,  absent a

statute in the  sentencing state so providing.   See Boutwell
                                                             

v. Eagle, 861 F.2d 1530, 1531 (11th Cir. 1988), cert. denied,
                                                            

490 U.S. 1099  (1989); Palmer  v. Dugger, 833  F.2d 253,  254
                                        

(11th Cir. 1987).  Petitioner does not have  a constitutional

right to credit  for the  time spent in  custody in  Illinois

                             -21-

fighting  extradition  to  Massachusetts.   The  question  is

whether  the  practice  of  the  Massachusetts Department  of

Corrections (DOC),  pursuant to  which he was  denied credit,

amounts  to retaliation  against escapees who  exercise their

right of access to the courts.

          It is well settled that prisoners, no less than any

other citizens, have  a constitutional right of access to the

courts.  See Bounds v. Smith, 430 U.S. 817, 821 (1977); Wolff
                                                             

v.  McDowell, 418 U.S. 396 (1974); Johnson v. Avery, 393 U.S.
                                                   

483  (1969).   "[S]tates  have an  affirmative obligation  to
                                              

assure  that  inmates have  meaningful  access  to courts."  

Germany  v. Vance, 868 F.2d  9, 14 (1st  Cir. 1989) (internal
                 

quotation marks  and citation omitted); see  also Bounds, 430
                                                        

U.S. at 832-24.6

          The right of access has been developed primarily in

prisoner  cases  where  the  inmate seeks  to  challenge  the

conditions of  his confinement or  his underlying conviction.

See  Crowder v. Sinyard, 884  F.2d 804, 811  (5th Cir. 1989),
                       

cert. denied, 496  U.S. 924  (1990).   These cases  generally
            

concern  the adequacy  of prison  libraries, access  to legal

                    

6.  Although the Supreme Court  has, at various times, viewed
the right of access as  one aspect of the Due  Process Clause
of  the Fourteenth  Amendment, the  First Amendment  right to
petition government  for grievances,  and the Privileges  and
Immunities   clause  of   Article  IV,   section  2   of  the
Constitution, see generally Germany,  868 F.2d at 17 &amp;  n. 9,
                                   
we  believe that  it  is most  appropriate  to view  the  Due
Process Clause as the source of that right.  Id. at 17.
                                                

                             -22-

assistance, or  the availability of pens,  paper, postage and

other  non-legal  materials  without  which  court  documents

cannot be drafted.   See,  e.g., Alston v.  DeBruyn, 13  F.3d
                                                   

1036 (7th Cir.  1994) (denial  of access to  law library  and

adequate legal  assistance); Petrick v. Maynard,  11 F.3d 991
                                               

(10th Cir. 1993) (inadequate law library); Davidson v. Smith,
                                                            

9 F.3d  4  (2d  Cir. 1994)  (destruction  of  inmate's  legal

materials);  Gluth v. Kansas,  951 F.2d 1504  (9th Cir. 1991)
                            

(high postage, copying and supply costs); Ching v. Lewis, 895
                                                        

F.2d 608 (9th Cir.  1990) (right of access  includes attorney

visitation); see also Bounds, 430 U.S. at 824-25 ("[I]ndigent
                            

inmates  must be provided at state expense with paper and pen

to  draft   legal  documents,   with  notarial   services  to

authenticate  them, and  with stamps  to mail  them.").   The

right of  access is not, however, limited  to such cases.  As

the Supreme Court  held in  the context of  a diversity  tort

action nearly a century ago:

          The right to sue  and defend in courts is
          the   alternative  of   force.     In  an
          organized   society   it  is   the  right
          conservative  of  all  other rights,  and
          lies   at   the  foundation   of  orderly
          government.  It is one of the highest and
          most essential  privileges of citizenship
          .  .  .  granted  and  protected  by  the
          federal constitution.

Chambers  v. Baltimore &amp; Ohio R.R., 207 U.S. 142, 148 (1907).
                                  

And at  least, one court  of appeals has  explicitly rejected

the proposition

                             -23-

          that  a  prisoner's  right of  "adequate,
          effective, and meaningful" access  to the
          courts,  as  recognized  by  the  Supreme
          Court in  Bounds v. Smith, is  limited to
                                   
          the presentation of constitutional, civil
          rights, and habeas corpus  claims . . . .
          [T]he   Bounds   opinion  was   primarily
                        
          concerned  with constitutional  and civil
          rights claims and with the  minimum legal
          resources  that  prisons  must afford  to
          inmates to ensure effective access to the
          courts.         Recognition     of    the
          constitutional  right  of  access to  the
          courts,  however,  long precedes  Bounds,
                                                  
          and  has from its  inception been applied
          to  civil  as   well  as   constitutional
          claims.

Jackson  v.  Procunier, 789  F.2d  307, 311  (5th  Cir. 1986)
                      

(collecting cases);  accord Straub  v. Monge, 815  F.2d 1467,
                                            

1470 (11th Cir.),  cert. denied,  484 U.S. 946  (1987).   The
                               

constitutional right of access to the courts is broad, and is

not limited to  an inmate's right to  challenge conditions of

confinement  or  an  underlying  conviction.   It  covers  an

inmate's right to  bring a divorce action, Corpus v. Estelle,
                                                            

441 F.2d 68,  70 (5th Cir. 1977),  and a common law  nuisance

lawsuit,  Harrison v.  Springdale Water  &amp; Sewer  Comm'n, 780
                                                        

F.2d  1422, 1427-28 (8th Cir. 1986).   I believe that it also

encompasses  the right of  an escaped felon  to challenge his

extradition.

          Under Illinois law petitioner had a statutory right

to challenge his extradition.  See Ill. Ann. Stat. ch. 725,  
                                  

225/10  (Smith-Hurd 1992).    Petitioner also  had a  federal

right to  challenge his  extradition through a  habeas corpus

                             -24-

proceeding in federal  court.   Crummley v.  Snead, 620  F.2d
                                                  

481,  483 (5th Cir. 1980) (citing Roberts v. Reilly, 116 U.S.
                                                   

80 (1885)).

          It is  now firmly established that an  act taken in

retaliation for  the exercise of a constitutionally protected

right is forbidden, even if the act, if taken for a different

purpose,  would have been proper.  McDonald v. Hall, 610 F.2d
                                                   

16, 18 (1st Cir.  1979); Matzker v. Herr, 748 F.2d 1142, 1150
                                        

(7th Cir.  1984).  Retaliation by prison officials against an

inmate  for  pursuing legal  action  constitutes interference

with  that inmate's right of access to the courts.  McDonald,
                                                            

610 F.2d at 18; see also Smith v. Maschner, 899 F.2d 940, 947
                                          

(10th Cir.  1990); Valandingham v. Bojorquez,  866 F.2d 1135,
                                            

1138 (9th Cir. 1989).  Thus,  although an inmate may not, for

example,  have   a  constitutional  right  to   remain  in  a

particular  institution or hold  a particular job assignment,

prison  officials  may not  transfer him  or  deny him  a job

assignment   in   retaliation   for   the   exercise   of   a

constitutionally protected  activity.  See Williams v. Meese,
                                                            

926 F.2d 994, 998 (10th Cir. 1990) (inmate transfer cannot be

used as retaliation); Howland v.  Kilquist, 833 F.2d 639, 644
                                          

(7th Cir. 1987) (same); McDonald, 610 F.2d at 18 (same).  The
                                

same  rationale applies  to the  denial of  credit against  a

prisoner's sentence for time spent in another state's custody

while challenging extradition.

                             -25-

          In  addressing  petitioner's claim  of retaliation,

the district court found:

          The  circumstances of  this  case .  .  .
          strongly  suggest  the   presence  of   a
          retaliatory  response   to  a  prisoner's
          exercising  his  constitutional right  of
          access to the courts.  The facts indicate
          a reasonable likelihood  that in  denying
          Beauchamp's  request  that it  credit his
          sentence  with  the  time  he   spent  in
          custody in Illinois  solely on the  basis
          of the Massachusetts escape  charges, the
          Commonwealth's Department  of Corrections
          impermissibly penalized  him for invoking
          his   statutory    right   to   challenge
          rendition.    Undisputedly, only  because
          Petitioner invoked his  right to  contest
          extradition was he deprived of sentencing
          credit   for  1,574  days   he  spent  in
          custody;  had  he waived  extradition and
          returned  immediately  to  Massachusetts'
          custody,  he  would  have  received  full
          credit   for   those    same   days    of
          imprisonment.  

Beauchamp,  slip op. at 13.   We review  the district court's
         

factual  finding of  retaliation  for clear  error, and  will

reverse  only if  we are  firmly and  unequivocally convinced

that an  error has been  committed.  See Tresca  Bros. Sand &amp;
                                                             

Gravel v. Truck Drivers Union, Local 170, 19 F.3d 63, 65 (1st
                                        

Cir.  1994); American Title Ins. Co.  v. East West Financial,
                                                            

16 F.3d 449,  453 (1st Cir.  1994).  In  other words, if  the

district  court's factual  finding  is plausible  based on  a

whole-record  review, we  must affirm  even if we  would have

reached  a  different  result in  the  first  instance.   See
                                                             

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985).
                         

                             -26-

          The   district  court  inferred  the  existence  of

retaliation from  the  fact that  respondent  had  previously

argued that the denial  of credit to petitioner for  the time

he served in  Illinois challenging extradition  was essential

to discourage extradition contests  by escapees.   Respondent

argues that this is not enough  on which to base a finding of

retaliation,  and  that "[p]ositive  evidence  of retaliatory

action  is necessary."  Brief for Respondent at 24.  Although

I am not sure  what respondent means by "positive,"  I assume

that it means direct as opposed to circumstantial evidence.

          Time and  time  again  courts  have  stressed  that

"[p]recisely because the ultimate  fact of retaliation  turns

on defendants' state of mind, it is particularly difficult to

establish  by  direct evidence."    Smith,  899 F.2d  at  949
                                         

(citing  McDonald, 610 F.2d at 18).   Thus, circumstantial as
                 

opposed to direct evidence may be enough to support a finding

of retaliation.  See  Mesnick v. General Elec. Co.,  950 F.2d
                                                  

816,  828  (1st Cir.  1991), cert.  denied,  112 S.  Ct. 2965
                                          

(1992).    In the  present  case, however,  there  was direct

evidence in the record  to support petitioner's allegation of

retaliation.    In  the   Superior  Court  of  Massachusetts,

respondent  submitted evidence  showing how  quickly escapees

are  generally   returned   to  Massachusetts   after   being

apprehended.   It then argued  that petitioner should  not be

credited  for  his  Illinois  time  because  doing  so  would

                             -27-

improperly provide escapees  with an  incentive to  challenge

extradition.     Clearly   respondent  was   advocating  that

petitioner's claim for credit should  be denied so that other

escapees  would be  deterred from challenging  extradition in

the future, despite  their established  right to do  so.   My

review  of the  record leads  me to  conclude that  there was

sufficient evidence  from which  a rational  factfinder could

find  that  petitioner  was  retaliated  against  for  having

challenged  his  extradition.   And  this  is  as  far as  an

appellate  court can  go.   I believe that  the court  had no

choice  but  to  uphold  the district  court's  finding  that

respondent  impermissibly  retaliated against  petitioner for

exercising  through habeas  corpus proceedings  his right  of

access to the courts.

          The court neatly avoids the issue of retaliation by

pointing out that petitioner himself was not denied access to

the  courts.  This  ignores the fact  that petitioner's claim

for  credit was denied by  DOC to discourage  the bringing of

such claims in the  future, regardless of the merits,  and in

the face of the recognized right of escaped felons to contest

extradition in the courts.

          As part of its "fundamental fairness" rationale the

court,   in  effect,  finds   that  petitioner's   basis  for

contesting extradition had no merit.  I do not think that the

right  of access to the courts hinges on the probability that

                             -28-

a  given  claim  will   succeed.    The  resolution   of  the

constitutional  question  should not  turn  upon  a post  hoc
                                                             

determination that petitioner's  extradition challenges  were

frivolous.  

          It  is settled  that,  "when  a  prison  regulation

impinges on inmates' constitutional rights, the regulation is

valid if  it is reasonably related  to legitimate penological

interests."    Turner  v.  Safley, 482  U.S.  78,  89 (1987).
                                 

Although Turner concerned prison rules and regulations, I see
               

no  reason why its rationale should not apply to other prison

actions  that threaten an inmate's access to the courts, such

as the denial of credit on a sentence, as in the case at bar.

Cf.  Frazier,  922 F.2d  at  562 (applying  Turner  to inmate
                                                  

transfer).

          In conducting a Turner analysis, the district court
                                

found  it   dispositive  that  "[r]espondent  .   .  .  [had]

proffer[ed]  no legitimate penological  interests which might

justify the Commonwealth's  response to Petitioner's exercise

of his right to challenge rendition."  Beauchamp, slip op. at
                                                

15.   Respondent  has repeated  its  omission by  failing  to

provide this  court with  any penological interests  that are

advanced  by denying  sentence credit  to petitioner.   Those

interests (real or imagined) did not prevent the Commonwealth

from  crediting the  petitioner  with the  time  he spent  in

Illinois after  his extradition  challenge.   See ante at  12
                                                      

                             -29-

n.2.  This  belies the  court's characterization  of the  no-

credit  rule  as a  "decision  generally  to  deny credit  to

escaped prisoners for time spent outside Massachusetts," ante
                                                             

at 14.   Application of the rule  only to the time associated

with the  petitioner's exercise  of his constitutional  right

bolsters  the  inference  that   the  denial  of  credit  was

retaliatory.   See supra  at 8-9.   Respondent simply  argues
                        

that the Turner analysis is inappropriate in the case at bar.
               

See Brief for Respondent  at 23-24.  But respondent  does not
   

explain  why this  is so,  nor does  it offer  an alternative

test.   Respondent does  argue that principles  of federalism

require  this court  to  defer to  state  court decisions  to

credit  or  not to  credit  a prisoner's  sentence  with time

served in  another state.   I  have been  unable to  find any

legal basis for respondent's theory.

          I  recognize that  prison  administrators  must  be

given wide  latitude in formulating  policies and  procedures

for running their prison  systems, see Procunier v. Martinez,
                                                            

416 U.S. at 405  ("courts are ill equipped  to deal with  the

increasingly urgent  problems  of prison  administration  and

reform"), particularly where state  prisons are involved, see
                                                             

Turner,  482 U.S.  at  85 ("Where  a  state penal  system  is
      

involved,  federal courts  have .  . .  additional reason  to

accord  deference to  the appropriate  prison authorities.").

States,  however,  cannot  implement, without  justification,

                             -30-

practices  or policies  that interfere  with the  exercise of

prisoners' constitutional rights.   See id. at 89-90.   While
                                           

there  may exist  some  legitimate penological  interest that

would  justify  denying petitioner  credit  for  the time  he

served in Illinois,  I can only speculate as to what it might

be.

          Petitioner  is not  a person  who evokes  sympathy.

Nor does his plight  suggest that a great injustice  has been

done  him.     Nevertheless,  he  has   raised  an  important

constitutional  issue involving  the right  of access  to the

courts.   And I do not think that the issue should be avoided

by masking it  in the  garb of "fundamental  fairness."   The

court today decides that a Massachusetts escaped felon has no

right  to credit  against  his time  spent  in custody  while

exercising  his undoubted  right to  contest extradition.   I

respectfully disagree.  For the reasons stated herein I would

affirm  the judgment of  the district  court.   I, therefore,

dissent.

                             -31-
