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Supreme Court of the United States No. 15-31 ================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- ALFREDO PRIETO, Petitioner, v. HAROLD W. CLARKE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, et al., Respondents. --------------------------------- ♦ --------------------------------- On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit --------------------------------- ♦ --------------------------------- BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI --------------------------------- ♦ --------------------------------- MARK R. HERRING STUART A. RAPHAEL* Attorney General of Virginia Solicitor General of Virginia LINDA L. BRYANT Deputy Attorney General TREVOR S. COX Deputy Solicitor General RICHARD C. VORHIS Senior Assistant OFFICE OF THE Attorney General ATTORNEY GENERAL 900 East Main Street MARGARET A. O’SHEA Richmond, Virginia 23219 Assistant Attorney General (804) 786-7240 [email protected] *Counsel of Record September 9, 2015 ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i RESTATED QUESTIONS PRESENTED The Due Process Clause of the Fourteenth Amendment confers no liberty interest on a prisoner to be free from conditions of confinement that are permissible “within the sentence imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995) (citation and quota- tion omitted). A State may confer additional “liberty interests” on a prisoner that implicate the Due Pro- cess Clause. Id. at 483. But such additional State- created liberty interests trigger due process protec- tion only when the State “imposes atypical and signif- icant hardship . in relation to the ordinary incidents of prison life.” Id. at 483-84. In Virginia, as in most States, capital offenders awaiting execution are housed in single-cells on a “death row” that is segregated from the general prison population. Petitioner, a capital offender, claims a State-created “liberty interest” in avoiding his restrictive housing conditions even though Virgin- ia prison regulations make clear that all death- sentenced inmates will be housed on death row. Invoking Sandin, he argues that death-row housing imposes “atypical and significant hardship” compared to general prison housing. The questions presented are: 1. Whether the atypical-and-significant- hardship test developed in Sandin elim- inates the requirement that a “State- created liberty interest” be one that the State itself actually created. ii RESTATED QUESTIONS PRESENTED—Continued 2. Whether the baseline for evaluating a State’s death-row housing is the housing provided to general population prison- ers. iii NOTICE OF CHANGE IN PARTY NAME Respondent Keith W. Davis is no longer the Warden of Sussex I State Prison. He was succeeded by David Zook. Under Rule 35.3, Respondent Zook is substituted for Davis. iv TABLE OF CONTENTS Page RESTATED QUESTIONS PRESENTED ............ i NOTICE OF CHANGE IN PARTY NAME .......... iii TABLE OF CONTENTS ...................................... iv TABLE OF AUTHORITIES ................................. v STATEMENT OF THE CASE .............................. 1 REASONS FOR DENYING THE WRIT .............. 18 I. Federal appeals courts are not split on the State-law-predicate question .............. 18 A. Neither Sandin nor Wilkinson elimi- nated the requirement that a State- created liberty interest be created by State law .............................................. 18 B. The circuits are not “sharply divided” on the question .................................... 27 II. There is also no circuit split on Prieto’s claim that general prison housing estab- lishes the baseline for evaluating death- row housing ............................................... 33 III. This case provides a poor vehicle to reach the questions presented............................. 38 CONCLUSION ..................................................... 42 v TABLE OF AUTHORITIES Page FEDERAL CASES Austin v. Wilkinson, No. 4:01-cv-00071, 2008 U.S. Dist. LEXIS 24032, 2008 WL 697679 (N.D. Ohio Mar. 12, 2008) ........................................................................ 35 Bell v. Wolfish, 441 U.S. 520 (1979) ................................................. 37 Chappell v. Mandeville, 706 F.3d 1052 (9th Cir. 2013) ..................... 30, 31, 33 Clark v. Wilson, 625 F.3d 686 (10th Cir. 2010) ................................. 31 Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003) ..................................................... 36 Conway v. Wilkinson, No. 2:05-cv-820, 2005 U.S. Dist. LEXIS 31294 (S.D. Ohio Dec. 6, 2005) ......................... 35, 37 Davis v. Ayala, 135 S. Ct. 2187 (2015) ............................................. 39 Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012) ............................................. 37 Frazier v. Coughlin, 81 F.3d 313 (2d Cir. 1996) ....................................... 27 Glossip v. Gross, 135 S. Ct. 2726 (2015) ....................................... 39, 40 Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir. 1999) .................................. 28 vi TABLE OF AUTHORITIES—Continued Page Hewitt v. Helms, 459 U.S. 460 (1983) .................. 18, 19, 20, 22, 25, 26, 27, 28, 29, 33 Hill v. Fleming, 173 F. App’x 664 (10th Cir. 2006) ..................... 31, 32 Jones v. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014), appeal argued, No. 14-56373 (9th Cir. Aug. 31, 2015) ............................................................ 40, 41 Knowlin v. Heise, 420 F. App’x 593 (7th Cir. 2011) .............................. 29 Lisle v. McDaniel, No. 3:10-cv-00064, 2012 U.S. Dist. LEXIS 170471, 2012 WL 6008784 (D. Nev. July 5, 2012), adopted by 2012 U.S. Dist. LEXIS 170467, 2012 WL 6005189 (D. Nev. Nov. 30, 2012) ............. 35 Mackey v. Dyke, 111 F.3d 460 (6th Cir.), cert. denied, 522 U.S. 848 (1997) ............................ 29 Magluta v. Samples, 375 F.3d 1269 (11th Cir. 2004) .......................... 32, 33 McAdams v. Wyo. Dep’t of Corr., 561 F. App’x 718 (10th Cir. 2014) ........................... 32 McElvaine v. Brush, 142 U.S. 155 (1891) ................................................... 9 Meachum v. Fano, 427 U.S. 215 (1976) ......................... 22, 23, 24, 25, 26 vii TABLE OF AUTHORITIES—Continued Page Parker v. Cook, 642 F.2d 865 (5th Cir. Unit B Apr. 1981)................ 34 Phillips v. Norris, 320 F.3d 844 (8th Cir. 2003) ................................... 30 Powell v. Weiss, 757 F.3d 338 (3d Cir. 2014) ..................................... 28 Prieto v. Davis, No. 3:13cv849, 2014 U.S. Dist. LEXIS 107504, 2014 WL 3867554 (E.D. Va. Aug. 5, 2014) ............................................................. 4 Prieto v. Virginia, 133 S. Ct. 244 (2012) ................................................. 3 Prieto v. Zook, 791 F.3d 465 (4th Cir. 2015), reh’g en banc denied, No. 14-4 (4th Cir. July 28, 2015) ....................................... 4, 39 Sandin v. Conner, 515 U.S. 472 (1995) ......................................... passim Smith v. Coughlin, 748 F.2d 783 (2d Cir. 1984) ............................... 34, 35 Sweet v. S.C. Dep’t of Corr., 529 F.2d 854 (4th Cir. 1975) ..................................... 9 Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000) ....................................... 27 Thomas v. Ramos, 130 F.3d 754 (7th Cir. 1997) ................................... 29 Trezza v. Brush, 142 U.S. 160 (1891) ................................................... 9 viii TABLE OF AUTHORITIES—Continued Page Wilkerson v. Goodwin, 774 F.3d 845 (5th Cir. 2014) ............................. 28, 29 Wilkinson v. Austin, 545 U.S. 209 (2005)...... 15, 17, 18, 25, 26, 32, 33, 34, 35 Williams v. Wetzel, No. 12-944, 2013 U.S. Dist. LEXIS 184000 (W.D. Pa. Dec. 9, 2013), adopted by 2014 U.S. Dist. LEXIS 7428, 2014 WL 252020 (W.D. Pa. Jan. 22, 2014) ............. 35 Wolff v. McDonnell, 418 U.S. 539 (1974) ......................... 22, 23, 24, 25, 26 STATE CASES Commonwealth v. Prieto, No. FE2005-1764 (Fairfax Cnty. Cir. Ct. Va. Aug. 18, 2015) .................................. 4, 39 Prieto v. Commonwealth, 682 S.E.2d 910 (Va. 2009) ................................ 1, 2, 3 Prieto v. Commonwealth, 721 S.E.2d 484 (Va. 2012) ................................... 3, 36 CONSTITUTIONAL PROVISIONS U.S. Const. amend. VIII ................................... 9, 10, 41 U.S. Const. amend. XIV ..................................... passim ix TABLE OF AUTHORITIES—Continued Page FEDERAL STATUTES 28 U.S.C. § 1915A ......................................................... 9 42 U.S.C. § 1983 ............................................... 9, 20, 31 STATE STATUTES 2013 Md. Acts Ch. 156 .................................................. 5 Va. Code Ann. § 19.2-264.2 (2008) ............................. 36 Va. Code Ann. § 53.1-232.1 (2013) ............................... 4 RULES Sup. Ct. R. 35.3 ........................................................... iii OTHER AUTHORITIES ABA Criminal Justice Standards on the Treatment of Prisoners (2010), http://www. americanbar.org/content/dam/aba/publishing/ criminal_justice_section_newsletter/treatment_ of_prisoners_commentary_website.authcheck dam.pdf .............................................................. 37, 38 Court TV, Escape from Death Row (2001), https://www.youtube.com/watch?v=MwX0S5Y putw ......................................................................... 12 Bryan A. Garner, Garner’s
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