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

amended as follows:
On

court

issued

on

September

page 13, delete the first full paragraph

26, 1994,

and replace with

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

amended as follows:

Court, issued

on

September 26,

1994,

On page 13, line 1 of footnote 2, continued from page 12, repl

"context" with "contest".
On page 17, second line from bottom, replace "But" with "By".
On page 19, line 8 of second full paragraph,
"do".

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-2385

replace "does" w

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 Sc

___________________
__
Harshbarger, Attorney General, was on brief for appellant.
___________
Joseph H. Zwicker with whom Massachusetts Correctional Le
__________________
_______________________________
Services was on brief for appellee.
________
____________________
September 26, 1994
____________________

BOUDIN,

Circuit Judge.
______________

This

question whether Massachusetts was

under

the circumstances

convict
spent

of this

credit against
in

The

presents

jail

case, to

resisting

district

the

constitutionally obliged,
give an

escaped

his Massachusetts sentence

an Illinois

Massachusetts.

appeal

court

for time

extradition back
in

habeas

to

corpus

proceeding held that the Constitution required such a credit.

We disagree, and reverse.
The facts
jury found

are straightforward.

On February 23, 1973, a

Richard Beauchamp guilty of

in Massachusetts.

He

received a life

second degree murder

sentence but,

under

Massachusetts law, was nevertheless eligible for parole after

14

years.

Scarcely

year

later,

on

April

29,

1974,

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

fled

from

various

Massachusetts.
places

identification

under
and

largely

Beauchamp
different
by

his

thereafter
names
wits

United States ex rel. Beauchamp v. Elrod, 1987 WL

________________________________
_____
(N.D. Ill. 1987).

lived "in

with
and

He

false

deception."
15164, *2

On
charges

July

6, 1981,

Beauchamp

in California.

was

arrested on

Shortly thereafter,

federal

Massachusetts

learned of the arrest and notified the federal authorities of

the

Commonwealth's

desire

Massachusetts prison.
California

on

to

have

Beauchamp returned

to

After serving a nine-month sentence in

federal

charges,

Beauchamp

waived

his

-2-2-

objections

to

extradition to

fraud charges had been

Illinois

where

lodged against him.

federal mail

While

there, he

was convicted and sentenced to

a brief term of imprisonment.

After

that sentence

he appeared

1983,

in Illinois

expired,
state

court on

on February

an Illinois

17,

misdemeanor

charge of deceptive practice.

Illinois dismissed

its misdemeanor charge on

1983, anticipating Beauchamp's extradition

March 11,

to Massachusetts.

In April the governor of Illinois issued a rendition warrant,

but

Beauchamp

brought

refused to

state

extradition on

habeas

a variety

waive
corpus

extradition.
action

of inventive

Instead

challenging

grounds.

he
his

The state

habeas corpus

petition was denied on November

by an appeal and then

10, 1983, but

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

escape from Massachusetts prison.

evidentiary hearing but

connived

at

Beauchamp's

The district court held an

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,

Massachusetts.
escape

1987, Beauchamp

He pleaded

from prison,

but no

was finally

guilty to a

returned to

separate charge

separate sentence

of

was imposed.

Beauchamp then began a campaign to obtain credit, against his

Massachusetts second-degree murder sentence, for
period (March 11, 1983, to August 7,
in

the

Illinois

Massachusetts.
sentence,

jail

while

1987) that he had spent

resisting

Although credit would not

which

was

for

life

a four-year

extradition

to

reduce his formal

imprisonment, credit

would

reduce the wait before Beauchamp was eligible for parole.

The

Massachusetts

Beauchamp

credit

for

authorities
his

were

very brief

prepared

period

custody after

his extradition challenges had

Massachusetts

was

authorities refused
Beauchamp then

free

to

take him

sought judicial

granted Beauchamp's

review.

the

time

spent

custody.

in

The

further credit, and

The

superior court

request for full credit

Judicial Court reversed, holding

Illinois

failed so that

into

his request for any

in

to give

but the Supreme

that no credit was due

Illinois

resisting

for

extradition.

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

____________
_________
On

October 1,

1993,

Beauchamp

action for habeas corpus in the

2254.

In

a thoughtful

commenced the

district court.

decision rendered

present

28 U.S.C.

on November

18,

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

1,574 days'

credit sought by

-4-4-

Beauchamp.

The

court ruled that to

burden

deny the credit would unconstitutionally

Beauchamp's right

alternate,

the court

to

held

contest extradition.
that denial

of

In

the

the credit

was

unconstitutional retaliation by the state.

On

this appeal,

the

Commonwealth

first

claims

that

Beauchamp did not adequately exhaust his state remedies.

the

district court, as here,

Beauchamp has invoked both due

process and equal protection

Beauchamp's

argument

In

concepts.

that

Due process underlay

the

Commonwealth

has

unconstitutionally burdened his right of access to the courts

and

impermissibly

protection

claims

Massachusetts
extradition
escapees;

retaliated
were

provides
to some

and

against

of

two

credit

extradited

second, that

for

him.

kinds:
time

of

equal

first,

that

spent

persons but

denial

The

contesting

not to

prison

such credit

favors

affluent fugitives over those who cannot make bail.

In

arguing a

Commonwealth

failure

singles

Massachusetts grants

to exhaust

out the
credit to

equal

state remedies,
protection claim

some extradited persons

withholds it from others based on irrational criteria.

Rose
____

v.

Lundy, 455
_____

U.S.

509

(1982), Beauchamp's

the
that
and
Under

federal

petition

may be

state courts any

___

dismissed if
of the

he failed

to present

federal claims now

to the

asserted.

The

district court must dismiss such "mixed petitions,"

"leaving

the prisoner with the

court to

choice of returning to state

-5-5-

exhaust his claims or of amending

petition

to present

court."

Id. at 510.
___

In his
had

brief to

separate

guaranties of

only exhausted

"federal

argument

section

due process,"

devoted

but

"state

and

federal

(for exhaustion

not challenge, and a section

which

adequately.

argument based on irrational

to

the district

Court, Beauchamp

whose adequacy

equal protection,"

briefly

claims to

the Supreme Judicial

purposes) the Commonwealth does

on

or resubmitting the habeas

makes
The

the indigency

equal

protection

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
district

possible to
court

apparently

protection attack
length

read

this final
did,

to

be

on the classifications

in the same section

paragraph, as
a

federal

the

equal-

just criticized at

of Beauchamp's brief.

The more

-6-6-

natural

meaning of

transition
mentioned
the

to

the

the
two

above, address

indigency issue

guaranties of

is

paragraph may
sections

that

"federal equal
discussed) and

due process" (where

be to

read it

follow

which,

as a
as

protection" (where
"state and

the access to

federal

the courts

issue is discussed).
However this may
the

case

under

irrational

Rose
____

be, we have no intention of dismissing

v.

Lundy.
_____

classifications argument

Beauchamp's state brief and

on

any

peculiarity

Constitution
Supreme

The

or

of

was amply

of

the

explained in

his criticisms were not premised

language

any unusual

Judicial Court

substance

state

can hardly

in

the

court

Massachusetts

precedent.

have been

The

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
____
_____
to

pass

courts

on

federal constitutional

intrude on

the state

courts have the chance

issues

before

criminal process.

state court has not fairly been apprised of a

argument, exhaustion is required.
F.2d
rather

1093 (1st Cir. 1989).

than form"

-7-7-

Where

the

constitutional

See Nadworney v. Fair, 872

___ _________
____

But in

is critical,

federal

this context "substance

872 F.2d

at 1101,

and the

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,

district

court's

holding

Beauchamp impermissibly
access"

to

to the merits

the

that

the

and begin

denial

of

with the
credit

forecloses or burdens the

courts.

Undoubtedly,

to

"right of

Beauchamp

has

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

____ ______
Smith, 430 U.S. 817,
_____
Beauchamp from
his
We

821 (1977), and if Illinois

filing a

federal habeas action

detention, serious constitutional

will assume

arguendo that
________

had barred
to challenge

concerns would arise.

the federal

right of

access

included the state habeas proceeding as well.

No

one, however,

prevented Beauchamp

successive habeas actions in Illinois.

whether
this

Massachusetts' refusal to
litigation

Beauchamp's

right

decisions provide
issues,

is

an

from filing

Rather, the

Here,

burden
______

the Supreme

relatively little direct guidance.

presenting the familiar

issue is

credit the time spent in

unconstitutional
________________

of access.

his

problem of how

upon

Court's
Burden

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

constitutional

are

rights

by

laid

prisoners,

current approach is to give

state's

judgment.

E.g.,
____

(1987);

compare Procunier
_______ _________

upon

the
the

exercise
Supreme

of

Court's

very substantial latitude to the

Turner
______

v.

Safley, 482
______

v. Martin,
______

416 U.S.

U.S.

78

396 (1974).

But such cases differ because they involve the actual running
of

prisons

discipline,

and

the

security,

most

practical

considerations

administrative feasibility

of

and cost.

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

diluted

when

the issue

is

the

calculation of

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
defendant.

provided to the

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

_____________
_______

the Court held

a possible

burdens on litigation choices

it unconstitutional to subject a kidnapper to

death

penalty if,

elected a jury trial.

(1969),

with

equal

chooses

to appeal

only if,

the

held that

conviction may,

defendant

Pearce--where
______

seven

the enormity of
justices

who

where successful,

given a higher sentence in a subsequent retrial.

plainly influenced by

defendant

North Carolina v. Pearce, 395 U.S. 710

______________
______
firmness,

but

Jackson was
_______

the penalty, so

seemed

be

unconcerned

that
about

deterring appeals--may be the more pertinent guidepost.

-9-9-

Taking together Turner, Jackson

______ _______
can say is

that the

burden on the

and Pearce, the best we

______
opportunity to

litigate

cannot be unreasonable, and reasonableness largely turns upon

the facts.
Turner
______

With some emphases peculiar to prison regulation,

itself identifies

state's

policy serves

extent to

which the

exercising

his

ends

valid

rights;

by

foreclosed or burdened

the

for

other

impairment of the

and

presence

the government

means

whether the

governmental interest;

prisoner is

reasonable alternatives
same

pertinent criteria:

without

or

absence

to achieve

significant

governmental interest at stake.

cost

the
in
of
the
or

482 U.S.

at 89-91.1
In

this

Massachusetts
within very
sentence

of

case

the

governmental

is entitled
broad
so

limits,
many

Massachusetts prison.
____________________

to shape
is

years

interest
its own

entitled to
means

is

patent:

sentences and,
insist

that

years served in
a
_____________________

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

may not be very different.

which views may vary.

in Illinois

But this is a practical matter on

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

of credit clearly
and

we

think

it

does not foreclose

unlikely that

extradition will be discouraged.

challenging
clear-cut.
10.

a rendition

claims

courts,
against

The legitimate grounds for

narrow and

reasonably

See Commonwealth v. Beauchamp, 595 N.E.2d at 309___ ____________

_________

substantial defense to

she

access to the

colorable

warrant are

If an alleged escapee

prospect

prisoners, the denial

subject to such a

extradition and thus

warrant has a
a fair to

good

of avoiding a return to certain imprisonment, he or

is not likely to be

discouraged by a penalty (denial of

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

Finally, there
of credit.

is no "ready alternative"

See Turner, 482

______

U.S. at 90.

does

give credit to Beauchamp,

that

underlies the

If

to the denial
Massachusetts

it defeats the very interest

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

595

N.E.

Beauchamp,
_________
alternatives

is

significant portion
at

310.

evidence

"[T]he

of

[challenged state policy]."

of

the

his

sentence."

absence

of

ready

reasonableness

of

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,

legitimate,

the

we think

burden

is

that
very

alternative is available to achieve

the

state interest

light,

to deny

no

obvious

the former and avoid the

latter. But two further questions remain:

state's decision

and

is

one is whether the

Beauchamp credit

is tainted

by a

retaliatory motive, and the other is whether the singling out

of escaped

prisoners presents

an equal

We address these issues in that order.

protection problem.

The
burden

district court,
upon

in

Beauchamp's

declared that the

addition to

right

finding an

of access

Commonwealth sought to

to

the

undue
courts,

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'
decision.

Both the district court

brief

rely upon

brief

in the state's

toward

[an

personnel who made the initial

arguments
_________

escapee's]

decision and Beauchamp's

made in

the attorney

highest court that

sentence
-12-12-

general's

"to provide credit

.

for

time

spent

contesting extradition opens the floodgates

increase in

extradition contests

to a significant

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

Correction
fugitive

court

proceeding,

also provided an affidavit

apprehension unit

this, too,

the

Department

of

from the chief of its

making similar

contentions; but

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
Univ., 444 U.S.
_____
document

action.

672, 675 n.22 (1980).

suggests

any

NLRB v. Yeshiva
____
_______

In any event, neither

individualized

attempt

to

target

Beauchamp.
Second,

we

do

retaliation is involved

not

think

that

unconstitutional

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

spur

time-wasting challenges to

often rest

giving credit would

extradition.

upon multiple considerations,

General rules

and concerns about

abusive litigation underlie a number of federal rules adopted

_______
by

the courts

themselves.

habeas corpus itself,

various

include restrictions

on

e.g., McKleskey v. Zant, 499 U.S. 467,

____ _________
____

491 (1991), and sanctions

mention

These

under Fed. R.

common

law

torts

Civ. P. 11, not

such

as

to

malicious

prosecution.
The Commonwealth's
litigation
decision

policy, even

if resting in

part on

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

to disadvantage

filed

a law

least

has not

a prisoner

suit against the

been

shown

to

because
_______

warden.
be,

retaliation for pursuing constitutional

that prisoner

This is
case

of

rights.

not, or at
individual
At most, as

one element in a legitimate decision generally to deny credit

to escaped
the

prisoners for time

state has given some

spent outside

weight to the

Massachusetts,

benefits of getting

the escapee back promptly where he or she belongs.

We

turn finally

denied equal
by

the

the claim

that Massachusetts

protection to Beauchamp, a

district

alternative

to

court

basis to

but

advanced

sustain

entitled

to

defend the

properly

preserved ground

claim not addressed

by

Beauchamp

the judgment.

district

court's

that would

has

as an

Beauchamp
judgment on

serve to

is
any

sustain it,

-14-14-

whether or not adopted

by the district court.

v. Tango's Restaurant,
__________________

969 F.2d 1319, 1325 (1st

The equal protection

claim based on indigency

court has not been renewed before us.

833

F.2d 253

Beauchamp's

(11th Cir.
claim that

1987)

E.g., Martin
____ ______
Cir. 1992).
made in state

Cf. Palmer
___ ______

v. Dugger,
______

We proceed,

therefore, to

Massachusetts applies

its no-credit

rule based on irrational classifications.

As the foundation
that

"Massachusetts

violators and

for his
awards

argument, Beauchamp
sentence

pre-trial detainees

states contesting extradition to

that

by statute,

credited with
Gen.

Massachusetts."

credit to

prison

during revocation proceedings.

Where no statute

a parole

279,

denies

out

that

time served during pretrial

________
129B, ch.

of

state

while

parole
in other

It is true
prisoners be

detention.

33A.

violator for

applies--as in

to

for time served

Massachusetts requires

L. ch. 127,

detention

credit

asserts

Mass.

Another statute
time spent

out of

Id., ch. 127,

___

the case of
resisting

149.

time spent

in

extradition--the

Massachusetts courts apply a test of fairness.3

Other
Supreme

than Beauchamp
_________

Judicial

Chalifoux.
_________

Court

In that

the

only other

involving an

decision by

escaped

prisoner

case, the escapee was sentenced

the
is

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.

to

accept immediate

rendition

then, after the California

to reduce

ordered

because of

On fairness

a credit.

for the time

spent in

grounds, the Supreme Judicial Court

Taking

that the prevailing

overcrowding and

sentence had been served, refused

the Massachusetts sentence

California.

Massachusetts refused

the two cases

together, we think

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

protection, for there are

that

1436-1672 (2d
is

ed. 1988).

between prison escapees

from any
v.

See,
___

even in hundreds

Similarly, the

U.S.

429

of pages of

e.g., L. Tribe, Constitutional Law

____
__________________
The

classification here, however,

and other

previously deemed suspect.

Sidoti, 466
______

equal

countless Supreme Court precedents

cannot all be reconciled

erudite discussion.

in generalizing about

(1984)

fugitives and

is far

Compare, e.g., Palmore

_______ ____ _______
(racial

classification does not in

classification).
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
formula

test is
is

extremely

that

non-suspect

unconstitutional only if no
to support it.

E.g.,
____

The

standard

classification

is

legitimate basis can be imagined

Harrah Independent School District

__________________________________

Martin, 440 U.S. 194 (1979).

______
legislature--or, here,

deferential.

v.

And "support" means only that a

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

Massachusetts,

these

distinctions

pretrial

Massachusetts
extradition)

the

or

held outside

are a peculiarly

the

about a general

(whether

held

in

state

while contesting
for credit;

individuals held primarily

Credit for such detention

There is nothing

whatever irrational

rule that pretrial detention time

credited as a matter
presumptive rule

by

sympathetic case

to assure their presence at trial.

available.

drawn

detainees

are presumptively innocent

is widely

assertedly

of course, nor does it

should be

conflict with a

against credit for time spent

out of state

by one who is convicted and later escapes from prison.

A closer case is presented
that

by the fact, if fact

it is,

credit is given to a parolee who violates parole, flees

-17-17-

the

state

and

Massachusetts.5

then

contests

extradition

back

to

But an escape from prison, even by one on a

12-hour pass,

can rationally

be treated

default than a parole violation.

as a

more serious

By the same token the state

may take a more

sympathetic view of time spent

out of state by

one who was out

in detention

on liberty than by

one who

was suppose to be residing in a Massachusetts prison.

Again,

the distinction is not irrational.

Beauchamp says
any assertion by
having

that these supposed

exceptions undercut

the Commonwealth that

it is interested

in

a Massachusetts sentence served only in Massachusetts

jails.
because

But a legitimate
rational

countervailing

interest does not

exceptions

general

are

concerns

made

or

cease to
on

be so

account

individual

of

equities.

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

but none involves
bounds of

a suspect classification or is outside the

minimal

rationality so

as to

violate the

equal

protection clause of the 14th Amendment.

Beauchamp's
violates the
jeopardy

made

final claim

Fifth

is that

the denial

Amendment's prohibition

applicable to

the

Amendment's due process clause.

states

of credit

against
through the

double
14th

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

different aspect of which

defendant served part

North Carolina
______________

was discussed above.

of his sentence for

was convicted

and

Pearce was denied credit

resentenced.

In

Pearce, a
______

In

Pearce a
______

an offence before

getting the conviction overturned on appeal.

he

v.

Then on retrial

the new

for the time he served

sentence,
incident to

the first conviction for the same crime.

In the ruling relied on by Beauchamp,
held that
clause's

the Supreme Court

this denial of credit violates the double jeopardy

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

"punishment" for

the

in Illinois was

Massachusetts

not formally a

second-degree

decision by Illinois to

murder

conviction

but

hold Beauchamp--who had already fled

once--pending

extradition

to

complete

his

Massachusetts

sentence.
Formalities
technical

deserve

constitutional

jeopardy clause.
holding

That

weight

in

prohibition

applying
such

is the lesson of the

as

fairly

the

double

Court's further

in Pearce that a stiffer sentence on retrial after a

______

successful appeal does not

offend the clause.

See

395 U.S.

implicit in

the even

-19-19-

at 711.
more

The same
famous

formal approach is

holding

that

separate

punishments for

the same conduct

jeopardy clause.

E.g., Heath
____ _____

state

and

do not violate

v. Alabama, 474
_______

federal

the double
U.S. 82,

89

(1985).
The force
technicalities
process

appeal

all, but for the

have

of Beauchamp's argument
of double

jeopardy.

to concepts

does not lie

Its essence

of fundamental

is

on the
a due

fairness: after

Massachusetts detainer, Beauchamp would not

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

minimum

term otherwise

argument would
denied

terms are

combined,

available

have special force

credit to

in

for

more than

Massachusetts.

if, for example,

convicted prisoner

for

the
This

a state

time spent

in

pretrial detention.
But
case.

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

Beauchamp's stay

related not only

in the

Illinois

to his Massachusetts

jail is

causally

sentence but also

to

his own action in escaping from Massachusetts prison and then

resisting extradition (mainly on
we have

spurious grounds).

explained above, Massachusetts has

partly symbolic, interest in

in its own prison.

To

And, as

a legitimate, if

having the full sentence served

deny Beauchamp credit is simply not a

-20-20-

case of fundamental

unfairness in the constitutional

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

_______ _______
__________

sense.

The Massachusetts rule could

strike some observers as a

severe one, but an arguably severe rule is not

unconstitutional.

Where as here

of minimum fairness and

the outer perimeter.
and

civilized

men

automatically

the underlying issue is one

rationality, a federal court polices

Where issues are ones on which rational

and

women can

reasonably

differ,

resolution of such choices is not for us.

Reversed.
________
Dissent follows.
Dissent follows.

-21-21-

the

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:

skill

the outstanding

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
because

which he fled prison?

I dissent, however,

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

important constitutional
issue was, in my

issue raised by

petitioner.

This

judgment, squarely confronted and correctly

decided by the district court.

With respect,
is "fundamental

I do not think that

the basic issue

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
for

to credit on a sentence lawfully imposed by one state,

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
______

(11th Cir. 1987).

right to credit

v. Dugger, 833
______

Petitioner does not have

for the

time spent in

F.2d 253,

254

a constitutional

custody in

Illinois

-21-21-

fighting
whether

extradition
the

practice

Corrections (DOC),
amounts

to

Massachusetts.

of

the

pursuant to

to retaliation

The

question

is

Massachusetts Department

of

which he was

denied credit,

against escapees who

exercise their

right of access to the courts.

It is well settled that prisoners, no less than any
other citizens, have
courts.
v.
483

a constitutional right of access to the

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

___ ______
_____
_____

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

________
_______
_____
(1969).

"[S]tates

have an

affirmative obligation

to

___________
assure
Germany
_______

that

inmates have

v. Vance, 868 F.2d

_____

quotation marks

meaningful

access

9, 14 (1st

to courts."

Cir. 1989) (internal

and citation omitted); see

___

also Bounds, 430

____ ______

U.S. at 832-24.6
The right of access has been developed primarily in
prisoner

cases

conditions of
See
___

where

the

his confinement or

Crowder v. Sinyard, 884

_______
_______

cert. denied, 496

_____ ______
concern

inmate seeks

U.S. 924

the adequacy

challenge

the

his underlying conviction.

F.2d 804, 811

(1990).

of prison

to

(5th Cir. 1989),

These cases

libraries, access

generally
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
other

the availability of pens,

non-legal

materials

cannot be drafted.

See,
___

without

paper, postage and

which

court

e.g., Alston v.
____ ______

documents

DeBruyn, 13
_______

1036 (7th Cir.

1994) (denial

of access to

adequate legal

assistance); Petrick v. Maynard,

_______
_______

F.3d

law library

and

11 F.3d 991

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

________
_____
9 F.3d

(2d

materials);

Cir. 1994)

(destruction

Gluth v. Kansas,
_____
______

of

inmate's

951 F.2d 1504

legal

(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
to

must be provided at state expense with paper and pen

draft

legal

authenticate
right of

documents,

them, and

with

with stamps

notarial
to mail

access is not, however, limited

the Supreme Court

held in

the context of

services
them.").

to such cases.
a diversity

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.

to
The
As
tort

Chambers
________
And at

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

_____________________
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
_________

(collecting cases);
1470 (11th Cir.),

F.2d

accord Straub
______ ______
cert. denied,

307, 311

(5th

Cir. 1986)

v. Monge, 815
_____

F.2d 1467,

484 U.S. 946

(1987).

The

_____ ______
constitutional right of access to the courts is broad, and is
not limited to
confinement

an inmate's right to

or

inmate's right to
441 F.2d 68,
lawsuit,
F.2d

an

underlying

conviction.

It

covers

an

bring a divorce action, Corpus v. Estelle,

______
_______

70 (5th Cir. 1977),

Harrison v.
________

and a common law

nuisance

Springdale Water & Sewer Comm'n, 780

_________________________________

1422, 1427-28 (8th Cir. 1986).

encompasses

challenge conditions of

the right of

I believe that it also

an escaped felon

to challenge his

extradition.
Under Illinois law petitioner had a statutory right
to challenge his extradition.
225/10

(Smith-Hurd 1992).

right to

challenge his

See Ill. Ann. Stat. ch. 725,

___
Petitioner also

had a

extradition through a

federal

habeas corpus

-24-24-

proceeding in federal
481,

court.

Crummley v.
________

Snead, 620
_____

F.2d

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

_______

______

80 (1885)).
It is
retaliation for

now firmly established that an

act taken in

the exercise of a constitutionally protected

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

purpose,

would have been proper.

16, 18 (1st Cir.

(7th Cir.
inmate
with

1979); Matzker v. Herr, 748 F.2d 1142, 1150

_______
____

1984).

for

McDonald v. Hall, 610 F.2d

________
____

Retaliation by prison officials against an

pursuing legal

action

constitutes interference

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,

____________
_________

1138 (9th Cir. 1989).

example,

have

particular
prison

although an inmate may not, for

constitutional

institution or hold

officials

assignment

Thus,

in

may not

right

to

remain

in

a particular job assignment,

transfer him

retaliation

constitutionally protected

866 F.2d 1135,

for

activity.

the

or

deny him
exercise

a job
of

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).

________
same

rationale applies

to the

denial of

credit against

The
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.

factual

finding of

reverse

only if

We review

retaliation

we are

the district court's

for clear

firmly and

error, and

will

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.

_______________________

16 F.3d 449,
district

453 (1st Cir.

court's factual

whole-record
reached

review, we
different

v. East West Financial,

___________________

1994).
finding

In

is plausible

must affirm

result in

other words, if

the

based on

even if we
first

the
a

would have

instance.

See
___

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

________
_____________

-26-26-

The

district

retaliation from

the

argued that the denial

he served in

court

inferred

fact that

the

respondent

existence
had

of credit to petitioner for

Illinois challenging extradition

to discourage extradition contests

argues that this is not enough

by escapees.

of

previously
the time

was essential
Respondent

on which to base a finding of

retaliation,
action

and

that "[p]ositive

is necessary."

I am not sure

evidence

of retaliatory

Brief for Respondent at 24.

Although

what respondent means by "positive,"

I assume

that it means direct as opposed to circumstantial evidence.

Time and

time

again

courts

"[p]recisely because the ultimate

have

stressed

that

fact of retaliation

turns

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

establish
(citing

by

direct evidence."

Smith,
_____

McDonald, 610 F.2d at 18).

________

899 F.2d

at

949

Thus, circumstantial as

opposed to direct evidence may be enough to support a finding

of retaliation.
816,

828

(1992).

See
___

(1st Cir.
In the

Mesnick v. General Elec. Co.,

_______
_________________

950 F.2d

1991), cert.
_____

Ct. 2965

present

evidence in the record

retaliation.
respondent
are

In

case, however,

the

Superior

returned

to

apprehended.

It then argued

credited

his

for

112 S.
there

was direct

to support petitioner's allegation of

submitted evidence

generally

denied,
______

Illinois

Court

of

showing how
Massachusetts

Massachusetts,
quickly escapees
after

being

that petitioner should

not be

time

-27-27-

because

doing

so

would

improperly provide escapees

extradition.

Clearly

with an

incentive to

respondent

was

petitioner's claim for credit should

escapees

would be

review

of the

record leads

that

petitioner

challenged

his

appellate
choice

to

was

extradition.

court can

but

me to

from which

go.

uphold

conclude that

a rational

against

And

is

this

exercising

through habeas

so.

My

there was

factfinder could

retaliated

the district

impermissibly

extradition in

right to do

I believe that

respondent

that

be denied so that other

their established

sufficient evidence
find

advocating

deterred from challenging

the future, despite

challenge

for

as

far as

the court

court's

retaliated against

having
an

had no

finding

that

petitioner for

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

for

credit was denied by

such claims in the

ignores the fact

that petitioner's claim

DOC to discourage

the bringing of

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

contesting extradition had no merit.

petitioner's

basis

for

I do not think that the

right

of access to the courts hinges on the probability that

-28-28-

given

claim

constitutional

will

succeed.

question

The

should not

determination that petitioner's

resolution

turn

upon

of

the

a post
____

hoc
___

extradition challenges

were

frivolous.
It

is settled

that,

"when

prison

regulation

impinges on inmates' constitutional rights, the regulation is

valid if

it is reasonably related

interests."

Turner
______

v.

to legitimate penological

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,
_______

transfer).

922 F.2d

at

562 (applying

Turner
______

to inmate

In conducting a Turner analysis, the district court

______
found

it

dispositive

proffer[ed]

that

"[r]espondent

no legitimate penological

justify the Commonwealth's

Respondent

provide this
advanced

has repeated

court with

by denying

[had]

interests which might

response to Petitioner's exercise

of his right to challenge rendition."

15.

its

Beauchamp, slip op. at

_________
omission by

failing

any penological interests

sentence credit

to

that are

to petitioner.

Those

interests (real or imagined) did not prevent the Commonwealth

from

crediting the

Illinois after
_____

petitioner

with the

his extradition

time

challenge.

he spent

in

See ante at
___ ____

12

-29-29-

n.2.

This

credit

belies the

rule

as a

court's characterization

"decision

generally

to

of the

no-

deny credit

to

escaped prisoners for time spent outside Massachusetts," ante

____
at 14.
with the

Application of the rule

petitioner's exercise

only to the time associated

of his constitutional

right

bolsters

the

retaliatory.

inference

that

the

See supra
___ _____

at 8-9.

denial

of

credit

Respondent simply

was

argues

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

______
See Brief for Respondent
___
explain
test.

why this

credit

is so,

Respondent does

require

this court
or

But respondent

nor does

it offer

argue that principles

to

not to

served in

at 23-24.

defer to

credit

another state.

state

does not

an alternative
of federalism

court decisions

to

a prisoner's

sentence

with time

unable to

find any

have been

legal basis for respondent's theory.

I
given wide

recognize that

prison

administrators

latitude in formulating

for running their prison

416 U.S. at 405

policies and

problems

of prison

reform"), particularly where state

Turner,
______

482 U.S.

involved,
accord
States,

at

85 ("Where

federal courts

deference to
however,

procedures

have .

to deal with

the

administration

and

prisons are involved, see

___
a
. .

the appropriate

cannot

be

systems, see Procunier v. Martinez,

___ _________
________

("courts are ill equipped

increasingly urgent

must

state penal

system

is

additional reason

to

prison authorities.").

implement, without

-30-30-

justification,

practices

or policies

that interfere

prisoners' constitutional rights.

there

may exist

would

justify

some

exercise of

See id. at 89-90.

___ ___

legitimate penological

denying petitioner

served in Illinois,

with the

credit

for

While

interest that
the time

he

I can only speculate as to what it might

be.
Petitioner
Nor does his plight
done

him.

a person

who evokes

sympathy.

suggest that a great injustice

Nevertheless,

constitutional
courts.

is not

he

issue involving

has

raised

the right

an

has been
important

of access

to the

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

exercising

against

his time

spent

his undoubted

right to

contest extradition.

respectfully disagree.
affirm
dissent.

the judgment of

in custody

while
I

For the reasons stated herein I would

the district

court.

I, therefore,

-31-31-