Opinion
C.A. No. 03-235 S
January 29, 2004
Report and Recommendation
Alfred Lemerick, pro se, filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that the Rhode Island Department of Corrections ("DOC") is denying him ninety days of good time credit as Ordered by this Court in Palmigiano v. DiPrete, 737 F. Supp. 1257 (D.R.I. 1990). A.T. Wall, Director of the DOC, has moved to dismiss the petition. Lemerick has objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the motion to dismiss be granted.
The Palmigiano case had a series of named defendants, reflecting the then current officials of the state of Rhode Island.
Background
On September 24, 1984, Alfred Lemerick pleaded nolo contendere to murder, robbery, assault with intent to murder, and assault with a dangerous weapon in the Providence County Superior Court. The trial justice sentenced him to serve a lengthy sentence at the Adult Correctional Institutions ("ACI").
Prior to Lemerick's incarceration, suit had been brought in this Court challenging the conditions of confinement at the ACI. After an extended trial in 1977, this Court declared that the entire Rhode Island prison system was unconstitutional and entered an extensive remedial order. See Palmigiano v. Garrahy, 443 F. Supp. 956, 986 (D.R.I. 1977). During the next dozen or so years, there were modifying orders, adjudications of contempt against defendants (various state officials), and the imposition of sanctions. Most of the problems during those years were related or attributable to overcrowding.
On May 22, 1990, Senior District Judge Pettine issued a Memorandum and Order in the Palmigiano case upon which plaintiff grounds his instant habeas corpus petition. See Palmigiano v. DiPrete, 737 F. Supp. 1257 (D.R.I. 1990) (hereinafter "May MO "). In the May MO, Judge Pettine Ordered, inter alia, that all sentenced prisoners at the ACI be awarded ninety days of good time credit, to be applied against the maximum sentence of each affected prisoner. See id. at 1262. Lemerick claims that DOC has failed to abide by Judge Pettine's May MO by refusing to award him the ninety days of good time credit. The Respondent has moved to dismiss the petition. Lemerick has supplied an objection thereto.
Westlaw, Lexis and the Federal Reporter all indicate that the May MO was dated May 18, 1990. However, after a review of the official court file, the May MO was in fact dated May 22, 1990.
Discussion
As his first basis for the dismissal, Respondent contends that Lemerick is exempt from the ninety day good time award. In support thereof, Respondent asserts that Judge Pettine, in the May MO, indicated that the award of the ninety days of good time credit "did not apply to inmates who, like petitioner, were charged with murder in the first degree." See Defendants'[sic] Memorandum In Support of Its [sic] Motion to Dismiss Petitioner's Application for a Writ of Habeas Corpus at 1 (hereinafter "Respondent's Memorandum"). Indeed, Judge Pettine's Order provided that the ninety days of good time credit did "not apply to inmates charged with murder in the first degree, rape, first degree sexual assault, first degree child molestation, and any prisoner arrested for a crime of violence against the person. . . ."Palmigiano, 737 F. Supp. at 1264 (emphasis added). The distinction relevant here is that, at the time of the May MO, petitioner was not "charged" with a crime. Rather, he was a "sentenced" inmate. The May MO, read whole, makes clear a distinction between those inmates "charged" and those inmates "sentenced." See,e.g., Palmigiano, 737 F. Supp. at 1262-1264. Thus, Respondent's first argument misses the mark.
Similarly, Respondent's second ground for dismissal fails on the same basis. Respondent asserts that on July 9, 1990, Judge Pettine modified his May MO, prohibiting its application "to prisoners charged with assault with intent to commit violent felonies; assault with a dangerous weapon; and murder, all degrees." See Respondent's Memorandum at 1 (internal cites omitted); see also Palmigiano v. Diprete, C.A. No. 74-172 P (D.R.L Memorandum and Order filed July 9, 1990) (hereinafter "July MO"). The July MO makes the same distinction between "charged" individuals versus "sentenced" individuals.See July MO at 7-8. At the time of the July MO, Lemerick was a sentenced inmate. Thus, Respondent's second argument does not provide a basis for dismissal.
Appended to this RR for the reader's convenience.
However, on August 3, 1990, Judge Pettine issued another Memorandum and Order in the Palmigiano case which does provide a basis for the dismissal of this petition. See Palmigiano v. Diprete, C.A. No. 74-172 P (D.R.L Memorandum and Order filed August 3, 1990) (hereinafter "August MO"). The August MO indicates that itsupercedes both the May MO and July MO. Id. at 4. Thus, the provisions of the May MO cited by Lemerick as a basis for relief were rendered inoperative by the issuance of the August MO.
Appended to this RR for the reader's convenience.
Furthermore, while the August MO provides for an award of good time credit similar to the May MO, the August MO contains a limitation fatal to Lemerick's instant petition. The August MO provides, in relevant part:
7. . . . the release provision of this order . . . shall not apply to . . . sentenced offenders convicted of and serving time for assault with intent to commit violent felonies; assault with a dangerous weapon; first degree child abuse; murder, all degrees; manslaughter; kidnaping; first and second degree sexual assault;. . . .Id. at 6 (internal cites omitted). Thus, under the provisions of the August MO, Lemerick is not entitled to an award of ninety days of good time credit as set forth in the Order since he has been convicted of murder.
In an effort to stave off dismissal, Lemerick contends that this Court's issuance of the superceding Order, the August MO, modifying the award of the ninety days of good time credit to only certain inmates, violated the Ex Post Facto Clauses. Article I of the United States Constitution provides that neither Congress nor any State shall pass any " ex post facto Law." See U.S. CONST. Art. I. § 9, cl. 3 (state); and U.S. CONST. Art. I, § 10, cl.1 (federal). The Ex Post Facto Clauses were included in the Constitution to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation. See Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798); Miller v. Florida, 482 U.S. 423 (1987).
Here, there are no legislative enactments at issue that would implicate the Ex Post Facto Clauses. The good time award was done through a judicial decree and not through any act of any legislature. The Ex Post Facto Clauses do not apply to the judicial branch of government. Marks v. Miller, 430 U.S. 188, 190 (1977); Rogers v. Tennessee, 532 U.S. 451, 454, 459-461 (2001). To find otherwise, would restrain the judicial branch from issuing rulings. Accordingly, Lemerick's Ex Post Facto argument is without merit.
Since Lemerick is not entitled to the award of ninety days of good time credit as he claims in his petition for habeas relief, and since his Ex Post Facto argument is without merit, the Respondent's motion to dismiss should be granted. I so recommend.
Conclusion
For the reasons set forth above, I recommend that the Respondent's motion to dismiss be granted. Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b). Failure to file timely, specific objection to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).