Shuttle v. Patrissi

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 90-316

 Michael Shuttle                              Supreme Court

                                              On Appeal from
      v.                                      Caledonia Superior Court

 Joseph Patrissi, Commissioner,               November Term, 1991
 Vt. Department of Corrections, et al.


 John P. Meaker, J.

 E.M. Allen, Defender General, and Jeffrey Dworkin and Seth Lipschutz,
   Prisoners' Rights Office, Montpelier, for plaintiff-appellee

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Thomas J. Rushford,
   Assistant Attorney General, Waterbury, for defendant-appellants


 PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ., and Peck, J. (Ret.),
           Specially Assigned


      ALLEN, C.J.   The State appeals from an order of the superior court
 expunging defendant's conviction for violating a Vermont Department of
 Corrections (Department) disciplinary rule.  The State argues that the court
 erred in (1) reviewing the conviction under the habeas corpus statute, and
 (2) finding the rule void for vagueness.  We affirm.
      Upon defendant's return from furlough to the St. Johnsbury Correctional
 Center, the Department gave him a breath test that revealed consumption of
 alcohol.  The Department convicted defendant in July of 1989 of violating
 their rule "No. 10 Highest, Possession of, or use of alcohol, includes
 returning from furlough."  As a result, defendant lost three days of
 statutory "good time."  The effect of the conviction was to extend his
 incarceration by those three days.  The Commissioner of Corrections denied
 defendant's administrative appeal on July 18, 1989.  Defendant filed a
 complaint with the superior court for review of governmental action pursuant
 to V.R.C.P. 75 on June 1, 1990.  The court denied Rule 75 relief because
 defendant had not filed the complaint within the required thirty days, but
 converted the complaint into a petition for a writ of habeas corpus.  The
 court held that rule 10 was unconstitutionally vague and ordered the
 violation expunged from defendant's record, thereby restoring his three days
 of good time.  As a result, defendant was immediately released from
 incarceration.
                                     I.
      The State argues that the superior court lacked jurisdiction to review
 prison disciplinary measures under the habeas corpus statute.  We disagree.
 We recognize, however, that whether to permit habeas corpus review when a
 defendant fails to avail himself of alternative avenues of review requires
 us to balance the liberty interests of inmates against the State's interest
 in maintaining the integrity of the judicial process.
      The Vermont Constitution guarantees the broad availability of the writ:
 "The Writ of Habeas Corpus shall in no case be suspended.  It shall be a
 writ issuable of right; and the General Assembly shall make provision to
 render it a speedy and effectual remedy in all cases proper therefor."  Vt.
 Const. Ch. II, { 41.  Additionally, 12 V.S.A. { 3952 provides:  "A person
 imprisoned in a common jail, or the liberties thereof, or otherwise re-
 strained of his liberty by an officer or other person, may prosecute a writ
 of habeas corpus to inquire into the cause of such imprisonment or
 restraint, and obtain relief therefrom if it is unlawful."  We have said
 that "[t]he purpose of the 'Great Writ' . . . is to guard against illegal
 restraints on liberty."  In re Stewart, 140 Vt. 351, 359, 438 A.2d 1106,
 1109 (1981). (FN1) Although originally limited to situations resulting in
 immediate release from incarceration, the availability of the writ has
 expanded to protect a broad range of liberty interests.  Id.  We hold that
 habeas corpus, when properly invoked by an inmate, provides a means of
 reviewing prison disciplinary measures that serve to prolong his period of
 incarceration.
      Our ruling finds support in other jurisdictions.  The United States
 Supreme Court has recognized the common-law authority for using habeas
 corpus to "remedy any kind of governmental restraint contrary to fundamental
 law."  Fay v. Noia, 372 U.S. 391, 405 (1963).  More recently, the Ninth
 Circuit noted the availability of habeas corpus to prisoners to review the
 denial of good time credits.  Bostic v. Carlson, 884 F.2d 1267, 1269 (9th
 Cir. 1989).  State courts similarly extend the availability of habeas corpus
 to prisoners to review prison disciplinary measures that result in the
 deprivation of liberty.  See, e.g., Williams v. State, 461 So. 2d 1335, 1337
 (Ala. Crim. App. 1984) (habeas corpus provides proper method for relief from
 deprivation of good time credits); Schaffer v. Steinhert, 40 Conn. Supp.
 251, ___, 490 A.2d 555, 556 (1985) (writ of habeas corpus is limited to
 challenges involving the legality of confinement or deprivation of liberty);
 Mahan v. Maschner, 11 Kan. App. 2d 178, 179, 717 P.2d 1059, 1060 (1986)
 (prisoner may use writ of habeas corpus to challenge legality of
 confinement).
      The State points to New York, where that state's highest court held
 that prison disciplinary decisions must be reviewed through administrative
 grievance procedures rather than through habeas corpus petitions.  People ex
 rel. Dawson v. Smith, 69 N.Y.2d 689, 690-91, 504 N.E.2d 386, 387, 512 N.Y.S.2d 19, 20 (1986).  We agree that review through administrative
 procedures, including those set forth in V.R.C.P. 75, is preferable.  Unlike
 New York's Court of Appeals, however, we are unwilling to bar categorically
 an inmate's use of a habeas corpus petition in cases arising from prison
 disciplinary measures.  Where, as here, Rule 75 review is unavailable and
 there is no evidence of a deliberate relinquishment of rights under Rule 75,
 habeas corpus provides an alternative means of protecting the liberty
 interests of an inmate whose incarceration is prolonged as a result of
 prison disciplinary measures.
      The scope of review under habeas corpus is broad and is not limited to
 jurisdictional defects.  Stewart, 140 Vt. at 356, 438 A.2d  at 1107.  "The
 court considering the petition is necessarily a trier of fact and . . . must
 determine what transpired [at the administrative hearing] in order to
 determine whether the imprisonment is unlawful."  LaRose v. Superintendent,
 Woodstock Correctional Center, 146 Vt. 22, 24, 497 A.2d 30, 31 (1985).
 Finally, although we "regard the ancient writ with . . . homage, . . . and
 . . . strive to keep it safe from abuse," we recognize "that the labeling of
 the desired relief sought is less important than its substance."  Unnamed
 Prisoners v. Maranville, ___ Vt. ___, ___, ___ 576 A.2d 132, 134, 135
 (1990).
      We limit the availability of habeas corpus review as we strive to keep
 it safe from abuse.  A habeas writ, intended to be a quick and summary
 proceeding for relief from illegal imprisonment, does not generally provide
 a substitute for appellate review.  Id. at ___, 576 A.2d  at 134.  "The
 instances in which the writ is granted where there are remedies by appeal .
 . . are rare and of exceptional nature."  In re Rickert, 124 Vt. 232, 236,
 203 A.2d 602, 605 (1964).  We have ruled that a writ of habeas corpus does
 not provide an alternative to an appeal from the trial court where a
 defendant deliberately waives an error on appeal to permit its assertion in
 a habeas corpus proceeding.  Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974).  This rule, analogous to the former federal "deliberate
 bypass" rule announced in Fay v. Noia, 372 U.S. 391, 438-39 (1963), prevents
 defendants from gaining tactical advantage through the strategic
 manipulation of the judicial system.
      Review pursuant to Rule 75, while not an appeal per se, is analogous to
 an appeal and provides the preferred means of reviewing correctional center
 disciplinary proceedings.  Mindful that inmates could intentionally forego
 Rule 75 relief to qualify for habeas corpus review unless we place limits on
 the availability of the writ, we hold that habeas corpus shall be
 unavailable where an inmate intentionally avoids Rule 75, either entirely
 or relative to an individual issue, to gain habeas corpus review.  We can
 envision circumstances in which a defendant could gain advantage by
 intentionally foregoing Rule 75 review, which is generally quite narrow when
 the superior court reviews prison disciplinary hearings (see, e.g., In re
 Nash, 151 Vt. 1, 2, 556 A.2d 88, 89 (1988) (court looks merely for "some
 evidence" to support the decision)), for the current broad scope that habeas
 corpus provides.  Under such circumstances, the trial court could properly
 exercise its discretion to deny a habeas corpus petition if it appeared that
 the inmate deliberately sought to gain a tactical advantage.
      We find, on balance, that the superior court properly exercised habeas
 corpus jurisdiction in this case despite defendant's failure to properly
 pursue review in accordance with Rule 75.  Defendant came to court
 challenging the legality of restraints on his liberty, and the court
 converted his Rule 75 action into a habeas corpus petition.  The court
 properly responded to the substance of his request for relief rather than to
 its label.  We need not determine whether an inmate could challenge, by a
 petition for habeas corpus, the loss of good time before he reached his
 release date because defendant was granted immediate release from
 incarceration as a result of the proceedings below.  Furthermore, the State
 makes no claim that defendant deliberately delayed filing under Rule 75 to
 gain a tactical advantage, and our review of the record reveals no such
 strategy.  We perceive no advantage for defendant in this particular case
 flowing from his failure to properly invoke Rule 75.  Here, the scope of
 review would have been similar under Rule 75 because defendant challenged
 the validity of the disciplinary rule.  Finally, we note that this
 application of the habeas corpus statute is especially appropriate given the
 minimal due process safeguards found in the prison disciplinary system.  See
 Cleavinger v. Saxner, 474 U.S. 193, 203-04 (1985) (recognizing that prison
 disciplinary hearing officers were not independent, but rather biased
 employees under obvious pressure to resolve matters in favor of the
 institution.)

                                     II.
      The State assigns error to the superior court's finding that the
 Department's Rule No. 10 was unconstitutionally vague.  That rule prohibits
 "[p]ossession of, or use of alcohol, includes returning from furlough."(FN2)
 We need not reach the constitutional issue because we find that the rule on
 its face did not prohibit the use of alcohol while on furlough.  Because
 defendant's conduct, using alcohol on furlough, did not fall within the
 proscription of the rule, the court properly ordered that his conviction be
 expunged.  We therefore affirm the judgment of the superior court although
 on different grounds than those stated in its support.  See Vermont State
 Colleges Faculty Federation v. Vermont State Colleges, 151 Vt. 457, 463, 561 A.2d 417, 421 (1989).
      Affirmed.

                                         FOR THE COURT:




                                         Chief Justice



 FN1.      Although Stewart was decided under 13 V.S.A. { 7131, Vermont's
 post-conviction relief statute, the opinion discusses post-conviction relief
 and habeas corpus interchangeably.  We noted that the post-conviction
 relief statute is a venue device, and was not designed to affect the
 availability of habeas corpus relief.  Stewart, 140 Vt. at 356, 438 A.2d  at
 1108.

 FN2.      The Department has subsequently changed the rule, which now clearly
 prohibits the use of alcohol by inmates on furlough.