Wilkinson v. Dotson - Oral Argument

Argument of Douglas R. Cole

Justice Stevens: We'll now hear argument in Wilkinson against Dotson.

Solicitor Cole.

Mr. Cole: Justice Stevens, and may it please the Court:

Prisoners typically want two things: first, to improve their conditions while in prison; and second, to get out of prison as quickly as possible.

Respondents' claims here are not conditions claims.

They do not seek a larger cell or better food while in prison.

Rather, their claims are about getting out of prison.

Traditional understandings of habeas would suggest that these release-driven claims lie there, not in section 1983, and this Court's decision in Heck confirms that this common sense answer is also the correct answer.

In fact, Heck establishes two bars, each of which independently prevent respondents from using section 1983 to pursue their claims here.

First, Heck establishes that civil actions under section 1983 cannot be used to collaterally attack State criminal judgments.

Before a prisoner can advance a claim under section 1983 that would necessarily imply the invalidity of such a judgment, he must first show that it has been favorably terminated.

And Edwards v. Balisok confirms that quasi-judicial administrative decisions regarding the duration of confinement count as criminal judgments for this purpose.

Justice Souter: Well, it isn't just duration of... of confinement.

I mean, in... in Balisok, what you had was a determination that the confinement would be definitely less as a result of the... the good time scheme.

The... the gut notion behind Balisok was that what you were attacking would imply that the sentence itself was invalid because the conviction was and so on.

We don't have that here.

What we have here is a scheme that makes a... a sentence that is imposed a more definite sentence.

We know where in the range it's going to be reconsidered.

And however that may be classified, it's not simply a Balisok situation.

Mr. Cole: It's arguably different than the good-time credits at issue in Balisok, as... as Your Honor notes.

However, I... I would suggest that even with respect to good-time credits, often under many State systems, good-time credits have the dual effect of moving up the parole eligibility date, as well as potentially... and in some States, it doesn't even have an effect on the--

Justice Souter: Right, but that had--

Mr. Cole: --of the sentence.

Justice Souter: --that had nothing to do with the rationale in Balisok, as I recall it.

Isn't that correct?

Mr. Cole: Your Honor, the... the Court... that's... that's correct, yes.

And I guess what I'd... I'd say is that what seemed to be driving the Court, though, was still the durational aspect of the sentence; that is, as the Court said in Muhammad, if a claim threatens no consequence for the duration of confinement, then that isn't a... or that isn't a claim that should be brought in 1983.

Justice Souter: No... no question.

But the durational consequence in those cases was a definite consequence of longer duration, i.e., a sentence in the first place, a sentence not reduced by good time in... in the second example.

Here, there... there is no such clear consequence.

Here, the consequence is that there will simply be a period of time before a sentence already imposed will be reviewed to determine whether, in fact, it will be shortened or allowed to run.

And that's different.

Mr. Cole: I'm not sure it is, Your Honor.

Both of them are going to have definite durational consequences for confinement.

Justice Souter: No... no question about that.

At... at the level of whether there is a durational consequence, they... they both have it.

I... I grant you that.

Mr. Cole: And, Your Honor, as far back as Preiser, this Court has noted that challenges to duration go to the very heart of habeas corpus.

That's--

Justice Ginsburg: The duration of... of the sentence.

And here, there's no implication at all that this sentence is in any way invalid, that the sentence itself or any portion of it is invalid because the parole would be a matter of administrative grace, but it doesn't... the determination of parole eligibility or parole suitability does not go to the validity of the sentence in any way, shape, or manner.

Does it?

Mr. Cole: --Well, a decision from a Federal court... and I guess... I think the answer to Your... Your Honor's question is yes, it does.

And the reason I say that is I think we need to look to the consequences of the Federal court decision that would follow from the claims that... that the plaintiffs... or I'm sorry... the prisoners here are advancing.

The State of Ohio has made individualized decisions with respect to each of these respondents that they should not again be considered for release from prison until 2005.

The request... the relief that they're requesting and the claims that they're bringing, if successful, would result in the Federal court undermining that State decision with regard to the length that they should be incarcerated.

It goes directly to the... the--

Justice Scalia: It doesn't... it doesn't shorten the length that they're going to be incarcerated.

There... there is no certainty that... that if they win this action, they will be incarcerated for a lesser period, is there?

Mr. Cole: --Absolutely no certainty of that, Your Honor.

But there is certainty--

Justice Scalia: And... and there was in the other cases, wasn't there?

In Balisok.

Mr. Cole: --Well, Your Honor, I don't think so.

I mean, prisoners could be released in the State of Washington before the terminus of their sentence.

They might not... it isn't as though they had to serve all the way till the end, less whatever good-time credits they had.

They could easily be--

Justice Scalia: Well, but--

Mr. Cole: --released prior to that time.

Justice Scalia: --Oh, indeed, but the... but... but getting the good-time credits entitled them to be... be released earlier.

They might have been released even earlier still, but their entitlement to be released earlier was a consequence, wasn't it?

Mr. Cole: It was, Your Honor.

Justice Scalia: And there is no entitlement to be released earlier as a consequence of this.

Mr. Cole: We--

Justice Scalia: You just get another hearing and maybe you will, maybe you won't.

Mr. Cole: --That's correct.

You'll... you'll just get another hearing.

But an important note on that: you'll get another hearing, and you'll get another hearing sooner than the State has decided that you should get a hearing.

Justice Scalia: Well, that's true.

So it makes it possible that you'll get released earlier, but... but there's no assurance you'll... really, the crucial question for me, I think, is whether... whether this could have been brought as a habeas action.

Could this have been brought as a habeas action?

Mr. Cole: Yes, Your Honor, it could have been brought as a habeas action.

If you look at the nature of their complaints, they're... they're clearly in custody.

Habeas would require custody and violation of the Constitution of the United States.

Justice Scalia: But they're just asking for a new hearing.

They're not asking for an earlier release.

What's your closest case that... that would allow a habeas action which does not seek an earlier release but just... just a hearing?

Mr. Cole: I think probably the Garlotte case, Your Honor, in which the Court allowed a habeas challenge where the only result was going to be to advance the date of eligibility for release from prison incarceration.

Justice Souter: It... it doesn't advance the date of eligibility.

It advances the date at which the parole board will take another look.

The only eligibility is an eligibility to take... to have another look-take and not an eligibility for release.

Mr. Cole: That's true, Your Honor, but these... under that understanding of eligibility, where eligibility means the first possible release date.

But these prisoners are not eligible for release in the sense of it's not going to happen for them unless and until the next release hearing.

Justice Souter: But if they are subject to another look, they are not necessarily then eligible for release.

And I think that's the point that we're getting... let me... let me ask a... a sort of complementary question.

Is there any reason that these--

Justice Scalia: Is this with an I or an E?

Mr. Cole: I was hoping for an I, yes.

Justice Scalia: With an I or an E?

Justice Souter: --With an E. With an E. But if... if you take my questioning as a compliment with an I, that's perfectly okay too.

[Laughter]

Mr. Cole: I'll... I'll wait and see what the question is--

Justice Souter: Let's see what it is.

The... the question is, could these claims not have been brought in advance of any application to these particular prisoners of the revised... whatever they were... the 1998 guidelines?

And if the answer is yes, then they could be brought at a time when, I suppose, habeas would... would not have been a possible remedy.

Is... is... am I correct on those two points?

Mr. Cole: --The State concedes that if they had brought this case before a parole hearing at which the guidelines were applied, that it would be a different case, and that 1983 would be a remedy in that... in that situation.

Justice Breyer: Here's... here's the difficulty that I... that I have.

When I read your brief, I thought, well, he must be right because this is really about custody.

It's really about custody.

They want to get out eventually.

But then when I... I... when I went back to Balisok, I thought, oh, here's the problem.

The problem is that it's a damage remedy in Balisok.

And normally you want the person to go into 1983 to get damages.

But he's going to get mixed up.

When do you send him to habeas?

Well, we don't want to send him to habeas unless it's clear that habeas should have been brought.

And so if he's just challenging, for example, introduction of Fourth Amendment violation evidence or something like that, don't go to habeas.

Don't go to habeas.

You didn't have to go to habeas unless you had to, unless you had... unless it was necessary to upset the conviction.

You see?

That's why that language is there.

Now, I got that far.

Then I said, oh, I see what you do.

We should have one rule for damages.

Well, that makes sense.

But there's no reason not to have a different rule when you have the injunctive action, and there maybe we could follow your rule.

But the next thing I come across is a statement that says, no, no, the rule is the same whether you bring a damage action or whether you bring an injunctive or declaratory relief action.

And I said, well, why did we write that?

You know, we're the ones who caused all this trouble.

But the... the... well, because we didn't want to make it too complicated and... and not have all the questions coming, well, what kind of an action is it really, et cetera.

Okay.

So once I got that far, I said, oh, well, I'm going to have to change something for you to win.

Either I have to change the thing that says the damages should be the same as the injunctive, or I have to change something else somewhere along the line, the word necessary.

I don't want to change the word necessary.

Maybe I could change the other, but why bother really?

Because all that's important here is people know which way they should go.

Now, that's where I am at the moment, thinking give him his 1983 action.

It's simpler.

It follows from Balisok.

Why not?

Mr. Cole: Well, Your Honor, there would be some real consequences that would follow from that.

Justice Breyer: That's what I thought.

Mr. Cole: The reason that it's important that these cases go to habeas rather than 1983 is because of the State court exhaustion requirement that's attendant with habeas.

Parole claims like those advanced here are often, if not always, intricately bound up with State law issues, and the State law is often going to provide much more meaningful relief than the Federal law claims that the prisoners advance.

Justice Scalia: Doesn't the Prison Litigation Reform Act require exhaustion even in a 1983 action?

Mr. Cole: Yes, but as Your Honor is aware, that's an administrative exhaustion requirement which this Court referred to in Nelson, I believe, as a substantially lower gate than the exhaustion requirement imposed by habeas.

Moreover, it's telling--

Justice Souter: Is... may... may I just follow up on that question?

At the administrative level, cannot these State law policies perfectly well be taken into consideration?

In other words, your argument was these things are bound up with State law issues and the best place to have them resolved is... is in a State forum.

They can be resolved in a State administrative forum, can't they?

Mr. Cole: --They could, Your Honor, but I... I think the types of legal determinations with respect to legal entitlements and also the court... we would assume a State court would also consider Federal claims that might be made by the prisoners when they bring their State court claim.

Those types of legal claims are better resolved by State courts.

They have the expertise to make the... the determination.

And in fact, in Ohio--

Justice Ginsburg: Well, couldn't one say the same thing of prison conditions that you can bring in as a 1983 action?

The States know better about how their prisons are operating and what changes would have to be made.

So I... I think that you... you may be right that the State knows more about how its parole system operates, but so does it know more about how its prison system operates.

And that doesn't... that's not what determines whether you have 1983 or habeas.

Mr. Cole: --Well, but Congress, with respect to conditions claims... and if you look at the language of the administrative exhaustion requirement in the PLRA at 42 U.S.C. 1997(e)(a), it says no action shall be brought with respect to prison conditions under 1983 without administrative exhaustion.

So even Congress, in thinking about the PLRA and in thinking about requiring administrative exhaustion, understood that 1983 is really about conditions of confinement.

1983 isn't about... it never has been about... release.

Habeas has traditionally been the relief that people... or the cause of action that people bring when what they're interested in is relief... or release from prison.

And these claims, no one can dispute, are release-driven claims.

They may not ultimately be successful in securing release, but the prisoners here--

Justice Breyer: Well, no, I've got that part.

But the... and... and you're right about that part.

But that... you know, that doesn't get over the... the hump here I think because of the... what we've written.

The... I mean, where I'm coming out now, what you've just said, is well, you know, there's going to be exhaustion in both cases.

And prison conditions, if we say that habeas doesn't... that 1983 applies here I think probably... I can't guarantee it... but those where prison conditions would then cover it, and then there would be exhaustion, and there... where it doesn't seem to make difference there.

And now I'm back to asking the other half of this, which is, well, all right, suppose I say I see your point, I think you're right.

Now, what... what is your recommendation?

What do we change?

Do we change the word necessary in Balisok, which I'd be pretty reluctant to do?

Or do we drive a wedge between the damage cases and the injunctive/declaratory relief cases?

Mr. Cole: --I don't think you need to do either, Your Honor.

I think if we go back to Heck and look at the language there that talks about necessarily implying the invalidity of a criminal judgment, which is something--

Justice Breyer: Oh, well.

Mr. Cole: --respondents concede in their brief, the only question then is does a parole decision count as a, quote, criminal--

Justice Breyer: All right.

No, but then what you're doing is taking the first half because what you're reading is you're reading that word necessary, whatever those words were in Balisok that we were just talking about, as your case satisfying that condition.

And if your case satisfies that condition, then so does the case where a person wants to bring a damage action because of illegally seized evidence at his trial.

Doesn't it?

I mean, because all... I mean... and then we've swept... then we've done... we've really moved Balisok from what it was trying to do.

Mr. Cole: --I don't think that's necessarily right, Your Honor, because the illegally seized evidence at the trial... I don't know that that would necessarily imply the invalidity of the conviction that resulted from that trial.

Justice Breyer: Why is he bringing his damage action?

He thinks he's bringing it because what they did at that trial hurt me.

Now, how did it hurt me?

It hurt me because I went right to prison.

Mr. Cole: Right, Your Honor, and that... that's absolutely correct, but I'm not arguing for, and I want to make it very clear that I'm not arguing for any rule that would turn on the subjective intent of the prisoner in bringing their claim.

It turns on the necessary implication of success on that claim, and that's a... a distinction that the Court made both in Heck and in Balisok.

They looked to what's the necessary implication.

So we look to the claims here, not why they brought them, but what are the claims.

And the claims here, and the particular ones that I would focus on, are the ex post facto claims.

If the... if they have success on their ex post facto claims... and we don't believe their claims are meritorious, but if they're successful on those claims, there's no way the State's decision can stand.

They are entitled to a new hearing at which they would again be considered for parole--

Justice Stevens: Yes, but does that mean the... the judgment... the order denying release on parole is invalid?

There are really two parts to it.

One, you... we're not going to release you.

Secondly, your next hearing will be at a later date than you want.

Insofar as you challenge the date of the hearing... the date of the next hearing, does that necessarily imply the invalidity of the entire order denying parole?

Mr. Cole: --We... we concede that if there's an ex post facto violation here, these prisoners are entitled to a new parole hearing.

And I guess the--

Justice Stevens: But they're not entitled to parole.

Mr. Cole: --Absolutely, Your Honor.

Absolutely.

Justice Stevens: So that it doesn't totally invalidate the order that is at issue.

Mr. Cole: Well, the way that... that I've been thinking about it is if you put the State parole decision up on the wall and you put the Federal decision up on the wall, one of them has to come down.

The Federal decision trumps the State decision.

It can--

Justice Stevens: Well, it doesn't entirely come down.

It just... half of it comes down.

Mr. Cole: --No.

The whole thing comes down, Your Honor.

They're entitled both to an immediate new release hearing and--

Justice Stevens: But not for release.

Mr. Cole: --if they're successful on their claims, they're entitled to more frequent release hearings in the future.

So the decision, the State's--

Justice Stevens: But... but isn't it true that one aspect of your order that's under attack is they had refused to grant them parole?

Mr. Cole: --Absolutely.

Justice Stevens: And that remains.

Mr. Cole: It doesn't, Your Honor.

They have to decide that again.

That... that order is void ab initio.

It's as though it were never entered.

They have to make a new decision about whether or not this person should... should have parole and that they cannot in any way... the State cannot rely on the prior decision that they reached on that issue.

Justice Stevens: I thought the only relief they were seeking was a more prompt next hearing.

Mr. Cole: No, they... Dotson's complaint, I believe at page 20 of the joint appendix... he wants to, quote, proceed toward a prompt and immediate parole hearing in accordance with the statutory laws and administrative rules in place when the plaintiff committed his crimes.

They want an--

Justice Ginsburg: But aren't... aren't those claims moot or academic now?

Because, as I understand it, he has had another parole hearing.

So he's... with the hearing that he was seeking, he's already had another.

So he's not complaining about the absence of a hearing or... or flaws in the procedure at the hearing.

I thought that this case now reduces to a clean question about the retroactive application of the new guidelines.

Mr. Cole: --Well, it isn't a clean question, Your Honor, because exactly the same error that he alleges infected his first hearing was present at his second hearing.

If... if you look at the materials that they added to their brief at lines 3, 7, and 8 where they have the new parole decision, it's clear that Dotson's 2002 parole decision was predicated on exactly the same guidelines, exactly the same 1998 guidelines that he says violated his rights under the Ex Post Facto Clause.

So, in fact, if anything, it's made his situation worse because a Federal decision on his claims now would both necessarily imply the invalidity of his previous hearing and the 2002 hearing, and the 2002 hearing was a release hearing.

Unlike the halfway review that occurred earlier, it was a full-fledged release hearing in 2002, at which the parole board decided both that he should not get parole then and that he should not again be considered for parole until 2005.

Justice Ginsburg: Was there... maybe I'm wrong about this, but I thought there no challenge being made to the 2002 hearing.

Mr. Cole: But what Heck makes clear is it doesn't matter what you say you're challenging.

What we need to look to is what's the necessary implication of securing success on your claims in Federal court for a State decision.

Here, the necessary implication, if they're successful on their ex post facto claims, is going to be that the 2002 decision can't stand, the 1999 decision--

Justice Ginsburg: Why can't it simply be that prospectively for this class of prisoner, the old guidelines will apply, prospectively without undoing anything that's happened in the past?

Mr. Cole: --I think for the same reason that in Balisok I don't think there could have been a prospective order that said... said something like the method you have for choosing decision-makers creates fraud, bias, and deceit, on a going-forward basis you must change that method for selecting decision-makers.

Saying that you have to change it on a going-forward basis would mean, necessarily imply, that there had been fraud, bias, and deceit by the decision-maker that would mean that--

Justice Ginsburg: I think twice you started something and our questions impeded you.

But I think you were equating the parole board's decision to a criminal sentence, and so you... you were saying just as the... the Federal authority can't come in and nullify the State criminal sentence, neither can it nullify the parole board determination.

And... and I thought that the comparison between a... a sentence... a criminal conviction and sentence and a parole board's discretionary determination... you seemed to be putting those on the same plane.

Mr. Cole: --Not exactly on the same plane, Your Honor, but recognizing that this Court in Balisok said that post-judgment administrative decisions regarding the duration of confinement also count as criminal judgments that are protected for purposes of... of the Heck doctrine.

And in Greenholtz, this Court--

Justice Souter: But... but the... the generality at which you keep referring to it, with respect to conditions of confinement, is a... is a higher level of generality than anything that Balisok decided.

In Balisok, the particular decision was a decision to revoke an entitlement to be released at whatever the date the good time would give, and... and that is a much more specific... I mean, that literally affects an entitlement to be released.

It is not merely a decision with respect to length of confinement.

Mr. Cole: --Well, Your Honor, if this turns on whether or not it's an entitlement, I would agree with you that it seems good-time credits might be different from an entitlement sense than parole.

But... but all the way back, in tracing the cases from Preiser forward, the Court has talked about duration of confinement, and certainly no one can argue that the decision here is going to have dramatic consequences for the duration of these prisoners' confinement.

Justice Souter: We... we don't know what consequence it will have for the duration of his confinement.

All we know is that it will have a consequence in determining the date at which the next look will be taken by the parole board to see whether he then is in a condition to be released.

That's all we can tell.

Mr. Cole: That's correct, Your Honor, but they're... they're pressing ex post facto claims.

And as this point... Court pointed out in Garner in 2000, they can maybe bring those claims based on changes in frequency of parole hearings, but they're going to have to show a definite impact on the quantum of punishment that they receive as a result of that change.

So if they're going to be successful on their ex post facto claims, they're going to have to show an impact on the duration of their confinement.

Either they have no ex post facto claim because there's no durational impact on their--

Justice Souter: Okay.

But you're... you're assuming... your argument now is assuming that they are going to be successful on this element, that you say they've got to satisfy later.

Mr. Cole: --Right, but that's the Heck--

Justice Souter: And... and whether they are or not has nothing to do with... with Balisok and Heck.

Mr. Cole: --I... I disagree, Your Honor, because in Heck and Balisok, the Court said look to what happens if they're successful on their claims.

So I'm... we're... the State is supposed to hypothesize that somehow they're going to be successful on these claims.

We don't agree it's going to happen, but once we hypothesize that they're going to be successful on an ex post facto claim, it means they're going to have to show, have to demonstrate a durational impact on their sentence.

Justice Souter: Sure.

It also... it also means that if... if... assuming your argument is sound, if you lose this case, you win the war.

[Laughter]

Mr. Cole: At... at some level, I think there's an... an inherent and fundamental tension in their position, and... and the coin could flipped and conversely there's that same tension in ours.

Justice Scalia: Are... are you sure that that's what they have to prove, that... a durational impact?

Wouldn't it be enough to show that they were deprived of an opportunity to have the sentence shorter?

Wouldn't... wouldn't it... assuming there was an ex post facto violation, wouldn't that be enough of an injury, that they lost an opportunity to have their sentence shortened?

Mr. Cole: But, Your Honor, I believe what makes out the ex post facto claim is an increase in the quantum of punishment after they've committed their crimes.

So they need to show that as an element.

I... I see... I'd like to reserve the remainder of my time for rebuttal, if I could.

Justice Stevens: Yes, you may do so.

Mr. Lewis.

Argument of John Q. Lewis

Mr. Lewis: Justice Stevens, and may it please the Court:

This case presents a straightforward opportunity to apply the Heck rule.

Respondent Johnson's section--

Justice Kennedy: Can you tell us why... why is it still live when they... when they already received a second hearing?

Or why is not moot?

Mr. Lewis: --Johnson still has remaining claims for prospective injunctive relief in this case and, as well, declaratory relief.

What may be mooted is his claim for retroactive injunctive relief, in other words, a new parole hearing.

I think in order for him to pursue that type of a claim, he'd have to go back down to the district court.

Justice Scalia: What... what is--

Justice O'Connor: Well, put in plain language what it is Johnson is claiming he's entitled to.

I don't understand.

Mr. Lewis: Well, he... really three different things.

He's requesting prospective injunctive relief, fix the due process violations that are going on in Ohio parole proceedings.

Justice Scalia: --Which is a new... a new parole hearing.

Isn't... I mean, it... I--

Justice O'Connor: How could that be fixed?

Justice Scalia: --Yes.

How... how can it be fixed except by giving him a new parole hearing?

Mr. Lewis: Well, he does have a class action.

He filed a class action and he's trying to fix the proceeding prospectively.

It doesn't necessarily require him to have a new parole hearing.

He's still in confinement and will very likely have a new parole hearing, a new parole hearing that he wants the proceedings to be different in.

He's not necessarily asking for a new parole hearing.

He's saying--

Justice Scalia: Why isn't he?

If... if... what he's saying is the past proceedings were invalid, I want you to do it right in the future.

Mr. Lewis: --Sure.

I think that was part of his claim, which might be mooted, but he's also saying in any future--

Justice Scalia: No.

It... it isn't mooted because he still got it done wrong.

The second hearing was still wrong.

Mr. Lewis: --Well, we don't--

Justice Scalia: His claims here... his claims here are correct.

Mr. Lewis: --We don't know that for sure, but part of his claim as well is to say in future parole hearings that I'm going to be subjected to, even if you don't give me a new one, in future parole hearings that I'm going to be subjected to, I want these processes fixed to... to come into compliance with due process.

And I think that's separate and apart from--

Justice Scalia: You... you say we don't know whether the... the new parole hearing he got was still invalid?

Mr. Lewis: --I don't think there's enough in the record to determine that.

Justice Scalia: Oh, so we can assume that that was valid.

You're... you're willing to assume that for purposes of this case?

Mr. Lewis: I am not willing to assume that.

I... I don't think we can say one way or the other.

Justice Breyer: But you're not challenging it.

Mr. Lewis: We can't yet.

Justice Breyer: Okay, fine.

Mr. Lewis: We may intend to.

Justice Breyer: Then we take it as valid.

Then we take it as valid.

That's not a claim you're challenging.

But I take it your claim is in the year 2009 he will have another hearing.

Mr. Lewis: Actually 2005.

Justice Breyer: 2005?

Okay, 2005 he'll have another hearing.

Mr. Lewis: Absolutely.

Justice Breyer: And in the year 2005, I want not to have the... what are they called?

The 1998 guidelines.

I don't want my 1998 guidelines applied in the 2005 hearing because you have some theory, maybe good, maybe bad, but it's a theory that that would violate the Constitution of the United States.

Mr. Lewis: That's correct.

Justice Breyer: So you're saying he's going to have this.

I want an injunction or declaratory relief they can't do it.

Mr. Lewis: That's right, and as well, he says I want to be heard at this next parole hearing.

Now, that was... part of his due process allegations in this case were that he... he wasn't even allowed to meaningfully participate in--

Justice Breyer: And he's saying it violates the Constitution in two respects: one, they won't listen to me; and two, they apply the 1998 guidelines.

Mr. Lewis: --That's essentially it.

Justice Breyer: That's it.

Okay.

We're talking now about this 2005 hearing and he wants new procedures, and the question is, is this 1983 or is it habeas?

Mr. Lewis: That's... that's correct.

Justice Breyer: Okay.

Mr. Lewis: And... and it is section 1983 because it doesn't violate the Heck rule.

This--

Justice O'Connor: And what... what is your... what is Johnson's mootness argument?

Mr. Lewis: --Well, to the extent in his complaint he was seeking a new parole hearing as a result of the challenge to the '99 decision, that's probably mooted because he has received this 2001 hearing and we just don't know enough about it to know whether he's going to challenge it or not.

He'd have to amend his complaint in the district court.

Justice O'Connor: Could... is it possible that both Dotson and Johnson could get new hearings by a filing habeas--

Mr. Lewis: I don't think so.

Justice O'Connor: --petition?

Mr. Lewis: I don't think so.

I don't think that Johnson has a Federal habeas remedy here because the Federal habeas statute is a challenge to the legality of custody, the legality of confinement, and that's not anything that he's challenging in this case.

Justice Kennedy: What would you do if there was an allegation of a serious procedural flaw in a past hearing?

The parole commission was... was drunk or they read the wrong file or something, and it was just a challenge to the invalidity of the past hearing.

Would that be 1983 or habeas?

Mr. Lewis: I think that's a closer call, but I think it--

Justice Kennedy: That's why asked you.

Why isn't it--

[Laughter]

Mr. Lewis: --Right.

And... and I... I think it is still section 1983 if certain things are present.

That is, is he going to necessarily imply the invalidity of the duration of his sentence by winning his case?

And if that's meets the Heck rule and if he isn't, then I think he can proceed in section 1983.

Justice Scalia: Do we have any case in which what was being... what was sought to be challenged in a habeas action was not the duration of the sentence, but the procedure by which the duration of the sentence was determined?

Mr. Lewis: I don't--

Justice Scalia: Is there any... why... why shouldn't that be a habeas action?

Why shouldn't 1983 be limited to prison conditions, which is what we've always... and referred to it as... as that in the past?

Mr. Lewis: --Well, I think in the hypothetical that you've presented, Justice Scalia, if the prisoner wins the case in that particular case, then his sentence is invalidated, and I think that's the important critical factor here.

Justice Scalia: No, no, no, not necessarily.

He... he's just saying the parole hearing I got lacked due process safeguards.

Had I had those safeguards, I might... I might... have been given a shorter sentence.

I can't prove I would have.

I'm not challenging the sentence really, but I want a new hearing.

I didn't get due process.

Give me a proper hearing because I might get out earlier.

Why shouldn't that come under habeas?

Mr. Lewis: Because it's not a challenge to the legality of the confinement.

Justice Breyer: My law clerk found two cases which we've just looked at briefly.

One is called Wilwerding v. Swenson and the other Johnson v. Avery where she says that in those two cases people were using habeas to challenge prison conditions even.

Now, so there are... there are two cases that, if she's... and she's usually right... that... that... where habeas was used to challenge prison conditions.

So I've thought, well, if they can use it, they certainly could use it here.

Mr. Lewis: Well, and I... I think point with... with both of those decisions is that the Heck rule did not come into play because the prisoners must have gone through and exhausted their State court remedies, and so there wasn't an issue as to whether they must bring their claim in habeas.

Justice Breyer: No.

It was a different issue, but it said habeas could be brought.

Mr. Lewis: Sure.

I think the Court in... in that particular case--

Justice Breyer: So habeas could be brought here?

Mr. Lewis: --I don't think so.

Justice Breyer: Why not?

Mr. Lewis: I don't think there's a remedy in habeas for the respondent Johnson in this case because the first thing that's going to be asked when he goes to the Federal district court to seek habeas relief is, well, are you challenging the legality of your custody?

Justice Breyer: Yes, and they say sure... sure I am.

I'm saying I had terms.

You know, I was going to be here under conditions A, B, C, and A, B, C in my opinion mean I will be released sooner, and instead, they gave me D, E, F, and D, E, F means I'm likely to be released later.

I can't guarantee it.

That's what he'll say.

He says I can't guarantee it, but I wouldn't be bringing this case if I didn't think at least it was a shot.

Mr. Lewis: Right.

And... and... but he's not necessarily challenging the legality of his custody.

Justice Kennedy: Well, but... but that's part of the conclusion that we're going to have to reach to... to resolve the case.

Why isn't he?

How is that that much different than if a judge... let's assume, under a proper sentencing guideline scheme, the judge just uses the wrong guideline.

The man is going to go to jail for either 5 or 10 years.

We don't know which.

But that's... that's a classic habeas case.

Here, he's going to stay in a prison for 5 or 10 years.

We don't know which.

Why isn't this a classic habeas case?

Mr. Lewis: Because I think in... in the first hypothetical, Your Honor, that... that you gave, the challenge, if successful, would... would completely invalidate the sentence that he received.

They'd have to redo the... the sentence.

And... and I think that's the critical distinction in this case, is that when Johnson files his complaint, he has a 10 to 30-year sentence by the... by the State court.

If he wins, he still has a 10 to 30 year sentence.

Justice Kennedy: Well, it wouldn't completely invalidate the sentence.

We know that he's still going to be held and he's going to be held in custody.

It's a question of how long, which is exactly what this case is.

Mr. Lewis: But in the hypothetical you propose, Justice Kennedy, the... the prisoner was actually... would be actually challenging the sentence he received, and by winning the case, he's going to undo the State court sentence.

Justice Scalia: Yes, well, those cases happen to involve... happen to involve sentences.

This case doesn't involve a sentence.

It involves an opportunity to have his sentence shortened.

And if habeas can be brought for that, we would phrase it differently.

We wouldn't say it would have to invalidate the sentence.

We would say it would have to invalidate the proceeding that could have shortened his sentence.

I grant you we can't use the same language we did in the earlier cases, but if this is properly a habeas action, then we... we can get some language to make it fit.

Mr. Lewis: Well, I don't... I don't think it is properly a habeas action.

I think even in the decisions where courts may have heard similar claims in habeas, I think it was a matter of just saying, well, the prisoner is already here.

He's already exhausted all of his State court remedies.

It doesn't really matter whether it's section 1983 or habeas.

Justice Breyer: Suppose we wrote an opinion that said, whatever the reasoning... I don't know what it would be right now... that said in the future your client should go ahead in 1983.

I'm putting you in a slightly awkward position, so don't answer if you don't want to.

But I mean, for the future all these cases will be brought in habeas.

Now, suppose that's what the opinion said.

We're absolutely making it clear just what the... would there be any harm done?

Mr. Lewis: I... I think there would be.

Justice Breyer: Now, what would that harm be?

Mr. Lewis: I think that by... by having a rule of that sort, that it would be expanding the jurisdiction of habeas and it would start to swallow up otherwise cognizable section 1983 claims.

Justice Breyer: And why would that be bad?

Justice Souter: And why--

Mr. Lewis: I'm sorry?

Justice Breyer: Why would that be bad?

Mr. Lewis: Well, because the Congress has enacted a statute--

Justice Breyer: No, no.

But I mean, is... I'm asking you a practical question as a practicing lawyer.

Would it be bad?

Mr. Lewis: --Absolutely it would.

Justice Breyer: Because?

Mr. Lewis: Because there's a statute that allows--

Justice Breyer: Well, I mean, leaving aside... Congress changed the statute.

It says absolutely it's going to be habeas.

Is there any bad consequence in the law?

Mr. Lewis: --It's going to give States a license to violate civil rights that will otherwise not be protected under the statute.

Justice Breyer: We'll catch them in habeas.

Mr. Lewis: Yes, but the... the State exhaustion requirements in habeas are much tougher.

Of course, the State wants them to have to go through State exhaustion.

Justice Breyer: Ah, so it comes down to that.

Mr. Lewis: That's really the critical--

Justice Souter: --You said... you said a moment ago that it would be expanding habeas, and I'd like you to expand on that.

It would be expanding habeas, I am assuming, because in every successful habeas case, the ultimate remedy that the court can order, if the State does not snap to it, is the immediate release of the prisoner.

And I take it when you said it would expand habeas, it would expand it because this would not be an immediate release case no matter what.

Is that correct?

Mr. Lewis: --That's correct.

Justice Souter: Okay.

Mr. Lewis: You would basically end up going to a Federal district court seeking habeas relief asking for processes to be changed prospectively.

Justice Souter: And that's why they could not bring habeas in this case because if they won, they still would not have shown anything that entitled to them to get out now or get out now unless the State within 30 days does something.

Is... is that the nub of it?

Mr. Lewis: That's... that's really it, Justice Souter.

Justice Kennedy: Well, I'm... I'm not sure.

It depends how you formulate the order.

The... the judge says, I'm going to order this prisoner released unless, within 6 months, he has a parole hearing under the guidelines I set.

That's the way the habeas statute works.

Mr. Lewis: Well, if that's the relief that the... the prisoner was seeking, I think that is clearly a habeas claim.

But that's not what Johnson is claiming in this case.

He's not asking for entitlement to release at all.

He's asking for the processes to be changed prospectively for future parole hearings, and he's asking for declaratory relief.

Justice Souter: Regardless of what he's asking for, if he got what he wanted, he still would not be entitled to any immediate release.

Mr. Lewis: That's absolutely correct.

Justice Souter: He would still have a sentence of X years, and the question is, how often are we going to look at him to decide when, within X years, we may let him out.

Is that--

Mr. Lewis: That's... that's absolutely it.

He cannot... by winning his case, he's not going to shorten his sentence in any way.

And that's... that's a big distinction from the Balisok case where there was an automatic entitlement to a shorter sentence--

Justice Kennedy: Well, he might--

Mr. Lewis: --for Balisok in that case.

Justice Kennedy: --he might shorten the term of his confinement.

Mr. Lewis: Might but not necessarily.

And this Court made very clear most recently in the Nelson decision--

Justice Kennedy: Well, you could say the same thing when you're challenging the sentence.

He might but he might not.

We're just... we're just hearing the case.

Mr. Lewis: --I think a challenge to the sentence necessarily invalidates that sentence if you win.

But a challenge to parole is much different because you're not affecting the sentence if you win your case.

And the term necessary is completely necessary to the Heck analysis, as this Court made clear most recently in the Nelson case from last term.

Justice Souter: --That's the nub of it I guess.

The fact that he may be granted parole has no implication for the validity of the sentence.

Mr. Lewis: That's absolutely right.

Justice Souter: In fact, it assumes the sentence is valid, but that he will probably stay clean if he gets out.

That's all it means, isn't it?

Mr. Lewis: That's really all it means.

And this Court last term in Muhammad in... in footnote 1 made clear that the incarceration that matters for this analysis is the... in the incarceration of the sentence from the State court.

And I think that's... that's what the Court needs to look at, is what is Johnson's effect on the State court judgment or sentence.

What's the necessary implications?

Not in this case at all.

And really, this case I think has already been decided by Wolff.

It's something that the petitioners sort of don't mention too much in their briefs.

In Wolff, the prisoners in... in that case were trying to get their good-time credits back.

I think this is an easier case than the Wolff decision.

And what the Court did was parse out, okay, you can't get your good-time credits back, but you can seek prospective injunctive relief to fix the processes that are used in connection with depriving prisoners of good-time credits.

And that's precisely what Johnson is seeking here.

Your Honor, the other thing I wanted to mention was the notion... Your Honors, the other thing I want to mention was the notion that there's no State review of these decisions.

The Prison Litigation Reform Act clearly provides for State administrative review of even challenges to the process.

So the... the State of Ohio could easily set up an appeal process administratively to... to correct that problem.

Justice Stevens: Thank you, Mr. Lewis.

Mr. Lewis: Thank you.

Justice Stevens: Mr. Untereiner, is it?

Argument of Alan Edward Untereiner

Mr. Untereiner: Yes, Justice Stevens.

Justice Stevens, and may it please the Court:

I'd like to, first of all, go to the point that Justice Ginsburg raised about the allegations in Mr. Dotson's complaint.

This case has... has become much simpler with respect to Dotson because any claim that he might have had about this 2000 scheduling decision has been mooted.

What's really left are claims for future injunctive relief, for prospective relief.

These are classic 1983 type cases.

Prisoners have been bringing lawsuits since Wolff against McDonnell alleging that parole procedures and other kinds of procedures, disciplinary procedures ought to be reformed and seeking future injunctive relief with respect to those kinds of... of procedures.

In Edwards against Balisok, this Court indicated that ordinarily claims for prospective injunctive relief will not be barred by the Heck doctrine because ordinarily they will not call into question or necessarily imply the invalidity of any previous decision.

So to Justice Breyer's question, this would require a change in the law, and it would, I think, fairly substantially cut back on the kinds of suits that have been brought for 30 years under Wolff because in all kinds of suits like this, the State would argue, as the petitioners are arguing today, that there's some prior administrative decision that's called into question by a future claim for injunctive relief with respect to some aspect of the procedures relating to good-time credit revocation or parole or the revocation of probation.

So I think this would be a fairly substantial change in the law.

A lot of these claims would be barred by Heck.

The... Justice Scalia, you asked the question about the habeas, the scope of habeas relief.

And I think it's important to understand that the lower courts have generally held that habeas is not available for these kinds of claims that are prospective only, seeking changes in future procedures.

There are some lower court cases that say that where a prisoner seeks release on parole and demands a right or claims a right to release on parole, that might be cognizable in habeas, but the vast weight of authority in the lower courts is that claims that only seek an... the right to a new parole hearing, the outcome of which is completely discretionary--

Justice Kennedy: You want a 1983 hearing in which a United States district judge tells the parole commission, now, here are your marching orders for future cases.

You have to comply with this rule, that rule, this rule.

What is an analog that you can give us where United States courts have done this under 1983?

Using an administrative case, if the... if the agency does it the wrong way, we reverse that decision.

It would be like a review of a conviction that's not final.

Have we had cases where under 1983 litigants come in and say, now, these agencies are doing it the wrong way?

You have to... can you give me an analog?

Mr. Untereiner: --I think there... there are a fair number of cases in the lower court where... lower courts where these types of claims for injunctive relief have been brought and the Federal courts have ordered, on a prospective basis, that the States conform to all kinds of... I mean, Wolff is a case like that I think where the... the State was required to do certain things in the future.

So I think these are ordinary 1983 claims for injunctive relief.

Justice Ginsburg: Is there any significant difference between this case and Wolff?

I mean, Wolff was a case of procedural fault supposedly, and if those faults were cured, someone would have a better chance at getting good-time credit.

Wasn't that what--

Mr. Untereiner: Yes.

Justice Ginsburg: --So it seems to me it's very... very close to your situation.

Mr. Untereiner: It is very close, Justice Ginsburg.

Dotson is essentially making two claims for prospective relief.

He is saying that these 1998 parole guidelines effectively rescind his eligibility for parole.

At the time of his conviction, he was entitled to parole after serving 15 years.

Under these guidelines, he'll have to wait till... until 32 and a half years have passed before he's eligible for parole.

And he's claiming that in... in his next parole release hearing, which is in June 2005 and beyond, the State is required to apply the old rules to him so that he'll be eligible.

So this is very much like what was at issue in Wolff.

The second claim he has is that he's entitled to annual parole release hearings in the future.

Again, it's a future... it's a prospective claim only.

In the future, he will be entitled to annual parole release hearings, and the new rules say that the State can postpone those hearings for up until 10 years.

So on both of those claims, he is seeking changes in the future, and these are classic 1983 type cases that have been brought, as I say, for the last 30 years in the lower courts.

Now, the Heck test requires a showing that if he prevails on his section 1983 claims, he would... that would necessarily imply the invalidity of his underlying conviction or sentence.

And I think this case is very different from the Balisok case.

There... there was a colloquy about that earlier.

I think that Balisok is clearly distinguishable because the administrative decision there would have had an immediate and direct impact on the duration of the prisoner's sentence by... by revoking the good-time credits.

Whereas, here, the impact is very, very speculative.

Justice Souter, you referred earlier to a durational consequence.

The durational consequence here is really quite hypothetical and remote.

If he prevails on his 1983 claims, all he will be entitled to are future hearings, and since parole is entirely discretionary in Ohio, we can't predict the outcome of those proceedings.

He'll also be entitled to... merely to be considered eligible for parole in the future.

So I think that the... the consequences... any impact on... on the duration of his confinement is... is really quite hypothetical here and it would require an expansion not only of the Heck rule but also of habeas jurisdiction to resolve this case in the State's favor.

Unless there are any further questions, we would ask that the Court affirm the Sixth Circuit's unanimous decision in favor of Dotson.

All 11 members of that court found that Dotson's claims were not barred by Heck, and this Court should affirm.

Justice Stevens: Thank you, counsel.

Mr. Cole, you have about 4 and a half minutes left.

Rebuttal of Douglas R. Cole

Mr. Cole: Thank you, Your Honor.

A number of points.

I wanted to start by responding to Justice Souter's question, which was again asking about this need for entitlement to earlier release as part of habeas, and would ask the Court to consider the In re Braden case where a prisoner in Alabama was seeking to challenge a detainer that had been issued by Kentucky.

And the basis for the challenge to the detainer in habeas was the fact that it was having implications for his parole eligibility in Alabama.

So there, there was not going to be necessarily an entitlement to earlier release, but simply a difference in the parole considerations.

Second, Justice O'Connor, with respect to your questions about mootness, the only point that I would add is that if this case is moot now, it was moot when the Sixth Circuit decided it as well.

So if mootness is the direction we're going, I think there need to be a decision vacating the judgment below--

Justice Kennedy: Well, what's your position as to whether or not it's moot?

Mr. Cole: --Your Honor, we don't believe it's moot either, and in... in fact, for two reasons.

First, once again, it's threatening consequences for an existing decision, albeit it not the one that was originally threatened or where invalidity would be implied below, but there is a new one where that would have that consequence.

In terms of bad consequences, I think the single biggest bad consequence of directing these prisoners to 1983 rather than habeas is it's going to deprive them of the opportunity for meaningful relief in Ohio's courts.

The Layne decision in the last... decided just 2 years ago, three prisoners brought a declaratory judgment action about the way parole works in Ohio.

They were successful and their case resulted in 3,000 prisoners receiving--

Justice Ginsburg: But... but you raise deprivation of the benefit they would get from the Ohio courts.

If they wanted that benefit, they could have brought a 1983 action in State courts.

State courts have jurisdiction.

So it's a little odd for you to say, oh, they're being deprived of a benefit when they're telling you by this very lawsuit they don't want it.

Mr. Cole: --That's true, Your Honor.

At the same time, this... bringing this... this case in 1983 in Federal court means that they're not going to be able to get injunctive relief on State grounds under the Pennhurst doctrine.

So they are depriving themselves of a chance to get that type of meaningful relief that Ohio courts are offering and that courts in other States are offering.

The other... the other point I wanted to make is that with respect to Petitioner Johnson's argument, his understanding of sentence, that if it doesn't impact the sentence, it can't be in habeas, would mean that parole revocations can't be in habeas either.

A parole... parole... when you're on parole, you're still serving part of your sentence, as he understands it, part of the initial term that the court has imposed upon you.

Granted, you're not doing it in prison, but a parole revocation wouldn't impact your sentence.

It would merely bring you back into prison to serve the remainder of your sentence rather than having you serve it on the street.

So I think that understanding of sentence can't make sense for... for habeas purposes.

Justice Scalia: I think sentence means custody.

Don't you think it means custody?

Mr. Cole: Well, but to the extent we're talking--

Justice Scalia: The custody you've been sentenced to?

Mr. Cole: --But to the extent we're talking about duration of custody or duration of confinement, again, the claims here do have a... success on the claims here would have a meaningful impact on the duration of confinement.

This Court in Muhammad said... I think this is probably the... the closest quote on point... challenges to particulars affecting the duration of confinement are the province of habeas corpus.

This is a challenge to a particular, the parole procedures, that's affecting the duration of their confinement.

Or at least that's their allegations, and that's what success on their claims is going to mean.

And because of those durational consequences, as well as because of the consequences of success on the merits for previous State parole decisions, we believe that those claims are better routed to habeas than to 1983.

If there are no further questions.

Justice Stevens: I had one further question.

Are you asking us to change anything in Wolff against McDonnell, or can we follow that case?

Mr. Cole: I think we can follow that case as it's been reinterpreted in Heck.

Wolff said that... well, Heck said that Wolff was about challenges that would not... and I believe the language is... necessarily vitiate the underlying decision.

So the way Heck understood Wolff was that the procedural challenges there, with regard to the prospective relief they were seeking, were not the type of relief that would necessarily vitiate any decision that had already been made.

Here, by contrast, the claims that they're bringing, the ex post facto claims, if they're successful on the merits, would necessarily vitiate the decisions that have gone before.

Thank you, Your Honors.

Justice Stevens: Thank you, Mr. Cole.

The case is submitted.