Click Back Button to Return to Publication
UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
TAYR KILAAB AL GHASHIYAH, et al.,
Petitioners-Appellants,
v.
DANIEL BERTRAND,
Respondent-Appellee.
July 29, 2002, Decided
NOTICE:
RULES OF THE SEVENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
In 1989, the Wisconsin
legislature created the Special Action Release parole program ("SAR")
to address overcrowding in the state's prisons. See Wis. Stat. § 304.02 (West 1990). Through SAR, prisoners can
obtain the opportunity for early release if they meet enumerated statutory
criteria. Id. In addition, § 304.02 directs the Wisconsin Department of
Corrections ("DOC") to establish its own regulations for selecting
inmates for release through an administrative procedure. The DOC obliged by drafting
Wis. Admin. Code § DOC 302.32(3)(a)(4).
In this consolidated appeal from
the denial of a 28 U.S.C. § 2254 petition, four Wisconsin prisoners claim to be
entitled to release under SAR. The petitioners admit that they do not satisfy
either the statutory or DOC regulatory criteria. But, they say, the DOC's §
302.32 perverts the legislature's parole program because its criteria is more
exclusionary than the legislature intended. If the DOC had promulgated
appropriately broad criteria, claim the petitioners, they would have satisfied
the criteria and been released. They therefore asked the district court to
order the release to which § 304.02 allegedly entitled them.
The district court parsed §
304.02's language in detail and decided that the statute vested discretion in
DOC officials to determine which prisoners could participate in SAR. Therefore,
ruled the district court, the statute did not create a constitutionally
protected right or entitlement to parole or early release. See Greenholtz v. Inmates of the Neb. Penal
and Corr. Complex, 442 U.S. 1, 11-12, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979)
(prisoner's interest in parole has no due process protection unless state
creates right or entitlement to parole, as opposed to hope or expectation).
Without a constitutionally protected right, petitioners did not have a
cognizable claim to habeas corpus relief.
Id. at 7. Pursuant to Rule 4 of the Rules Governing § 2254 Petitions,
the district court dismissed the case.
Because the court resolved this case under Rule 4, the respondent did
not appear in the case below. On appeal, however, the state challenges the
petitioners' standing to assert their § 2254 claim. We address this issue
before turning to the merits because standing is a jurisdictional question. See
United States v. Hays, 515 U.S. 737, 742, 132 L. Ed. 2d 635, 115 S. Ct. 2431
(1995).
The respondent contends that the
petitioners lack standing because they were all convicted of "assaultive
crimes"; both the SAR statute and DOC regulations expressly exclude
prisoners convicted of assaultive crimes from the SAR program. See Wis. Stat. §
304.02; Wis. Admin. Code § DOC 302.32(3)(a)(4). Therefore, argues the
respondent, the petitioners were never eligible for SAR and they could not be
harmed by the DOC's allegedly infirm administration of it. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992) (standing requires plaintiff
to have suffered "injury in fact").
The respondent's contention
misses a subtlety of the petitioners' argument. The petitioners do not claim to
be entitled to release under SAR as it now stands. Rather, they claim that the
Wisconsin legislature's express intent in § 304.02 requires the DOC's
regulations to be rewritten so that they would be entitled to release under
SAR. They challenge SAR's current parameters exactly because the program's
regulations were written to exclude them, and that gives them standing. See Smith v. Lindley, 66 F.3d 819, 828 n.11
(7th Cir. 1995) (city had [*738] standing to challenge state agency's allegedly
discriminatory implementation of federal statute because implementation caused
it harm). Thus, the petitioners have standing.
As to the merits of the
petitioners' claims, the district court's decision was admirably reasoned and
thorough. Having reviewed the record and petitioners' appellate arguments, we
adopt the district court's opinion rejecting the petitioners' contention that
they are entitled to participate in SAR. As the district court recognized,
nothing in § 304.02 entitles the
petitioners to early release or required the DOC to draft its SAR
criteria so that the petitioners would be so entitled.
AFFIRMED.