
USCA1 Opinion

	




          October 18, 1994                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                     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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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.                                                     Dissent follows.                                         -21-                                         -21-            BOWNES, Senior Circuit Judge, dissenting.            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-                                         -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 &  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-                                         -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 & Ohio R.R., 207 U.S. 142, 148 (1907).            ________     _____________________            And at  least, one court  of appeals has  explicitly rejected            the proposition                                         -23-                                         -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  & 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-                                         -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-                                         -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 &                                                 ___ ____________________            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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -31-
