Supreme Court of the United States

No. 15-31 ======In The Supreme Court of the United States

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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

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 quotation 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 protection only when the State “imposes atypical and significant 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.

RESTATED QUESTIONS PRESENTED—Continued

2. Whether the baseline for evaluating a State’s death-row housing is the housing provided to general population prisoners.

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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.

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 eliminated 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

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

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

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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

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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

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 Dictionary of Legal Usage (3d ed. 2011) ...... 4

STATEMENT OF THE CASE 1. Since October 30, 2008, Petitioner Alfredo Prieto has been confined in a special housing unit at Sussex I State Prison, in Waverly, Virginia, awaiting imposition of the death penalty.1 Prieto received two death sentences for murdering Rachael A. Raver and Warren H. Fulton, III, both 22, who were last seen alive leaving a restaurant together on December 4, 1988.2 “Raver’s partially nude body was found lying in a field . . . in Fairfax County. Fulton’s fully clothed body was found about 100 feet away from Raver’s body. Raver’s jeans, underpants, gloves, and shoes were found approximately halfway between the two bodies.”3 Fulton was killed by a gunshot to his back.4 Raver received a single gunshot wound to her back and “had scraping of the skin on her abdomen, legs, hands, and face, and a bruise on her neck,” caused by the “pushing or pulling of her body. . . .”5 She “was found undressed from the waist down with her legs spread apart on the ground. . . .”6 Biological residues left on her thighs and vagina were collected and preserved.7 Although investigators attempted to

1 CAJA-195, 203, 435. 2 Prieto v. Commonwealth, 682 S.E.2d 910, 915 (Va. 2009) (Prieto I). 3 Id. 4 Id. 5 Id. 6 Id. 7 Id.

2 identify a suspect, there was no DNA match at the time.8 In September 2005, almost 17 years after the murders, DNA testing connected Prieto to the crimes.9 Prieto was then being held on California’s death row for the rape and murder of a 15-year-old girl who, like Raver, was “found in a remote, open field, partially unclothed, and lying on her back with her legs spread apart,” and who was also “killed by a single gunshot wound.”10 A Fairfax County grand jury indicted Prieto in 2007 for, among other crimes, the premeditated murder of Fulton and the “premeditated killing of . . . Raver in the commission of or subse- quent to rape.”11 After extradition to Virginia and one mistrial, a second jury found Prieto “guilty of two counts of capital murder, two counts of use of a firearm in the commission of murder, rape, and grand larceny.”12 The jury recommended the death sentence for both capital convictions, and the trial judge imposed it.13 The Supreme Court of Virginia affirmed the convictions but vacated the death sentences,

8 Id. at 915-16. 9 Id. at 916. 10 Id. 11 Id. at 914. 12 Id. 13 Id.

3 remanding for a new penalty proceeding on the capital murder convictions.14 On remand, another jury recommended two death sentences for Prieto, unanimously finding statutorily prescribed “aggravating factors of future dangerousness and vileness.”15 The evidence of Prieto’s prior crimes included felony convictions for: a drive-by shooting of three people on or about August 25, 1984 and an escape committed on or about August 16, 1985 [and] a series of crimes committed in California on or about September 2, 1990: the rape and murder of a 15 year old girl, two attempted murders, two additional rapes, three kid- nappings, two robberies, two attempted robberies, and possession of a firearm by a felon.16 In 2012, the Supreme Court of Virginia affirmed both death sentences,17 and this Court denied certiorari.18 On August 5, 2014, the United States District Court for the Eastern District of Virginia denied

14 Id. at 938. 15 Prieto v. Commonwealth, 721 S.E.2d 484, 489 (Va. 2012) (Prieto II). 16 Prieto I, 682 S.E.2d at 916. 17 Prieto II, 721 S.E.2d at 489. 18 Prieto v. Virginia, 133 S. Ct. 244 (2012).

Prieto’s petition for writ of habeas corpus.19 On June 30, 2015, the Fourth Circuit affirmed.20 That triggered the State circuit court’s obligation under Vir- ginia law to set an execution date within 60 days of the scheduling proceeding.21 On August 18, the circuit court set Prieto’s execution date for October 1, 2015.22 2. The unit in which Prieto is confined at Sus- sex I is “commonly referred to as ‘death row.’ ”23 The term “death row” is used throughout the United States; it “is an Americanism dating from the early 1940s. . . .”24 Like the vast majority of other death- penalty States, Virginia houses its death-row inmates in single cells in a unit that is segregated from the general prison population.25 Only two States— Maryland (which recently eliminated the death

19 Prieto v. Davis, No. 3:13cv849, 2014 U.S. Dist. LEXIS 107504, 2014 WL 3867554 (E.D. Va. Aug. 5, 2014). 20 Prieto v. Zook, 791 F.3d 465 (4th Cir. 2015), reh’g en banc denied, No. 14-4 (4th Cir. July 28, 2015), ECF No. 53. 21 Va. Code Ann. § 53.1-232.1 (2013). 22 See Order, Commonwealth v. Prieto, No. FE2005-1764 (Fairfax Cnty. Cir. Ct. Va. Aug. 18, 2015), filed in Prieto v. Zook, No. 14-4 (4th Cir. Aug. 19, 2015), ECF No. 58. 23 CAJA-435. 24 Bryan A. Garner, Garner’s Dictionary of Legal Usage 248 (3d ed. 2011). 25 A 2013 survey by the Association of State Correctional Administrators was made part of the record below. CAJA-859- 90.

5 penalty26) and Missouri—house death-sentenced inmates among general population offenders.27 In Virginia, the individual cells on death row are the same size as the cells in the general prison population—approximately 71 square feet28—except that, in the general population at Sussex I, two prisoners often share a cell.29 Death-row inmates receive all three meals in their cells.30 Their cells have a horizon- tal window that, while having a wire security mesh, allows the prisoner to see the woods outside the prison.31 Two of the death-row inmates have jobs within the unit, as houseman and barber.32 And the inmates are visited by “a mental health practitioner at least once a week and receive twice daily visits from medical personnel.”33 At the time Prieto brought this action, death-row inmates: were permitted to shower at least three days a week;34 allowed regular non-contact visits;35 could seek permission for contact visitation with family

26 2013 Md. Acts ch. 156. 27 CAJA-861-62. 28 CAJA-343. 29 CAJA-467. 30 CAJA-210. 31 CAJA-322, 358, 938-39. 32 CAJA-371. 33 CAJA-437. 34 CAJA-210, 497. 35 CAJA-349-50, 392.

6 members;36 and could have contact visitation with their attorneys.37 They were permitted outdoor recreation in recreational enclosures for at least one hour a day five days a week,38 during which time they could “see and converse with other death row offenders.”39 They were not permitted to engage in congregate activities.40 Their feet and hands were shackled when they walked to the showers, to the recreation yard, or to visitation,41 and they were strip-searched before leaving and returning to their cells for recrea- tion42 or if leaving the pod,43 such as for visitation.44 Even before Virginia’s recent changes to its death-row-housing policies, however, the conditions of confinement were less restrictive than the conditions in administrative or disciplinary segregation. Death- row inmates already enjoyed the same commissary privileges as general population offenders;45 could make phone calls from their cells;46 had more interaction with corrections, medical, and mental health

36 CAJA-350, 392. 37 CAJA-392. 38 CAJA-204, 437. 39 CAJA-210. 40 CAJA-431, 668-69. 41 CAJA-204, 575. 42 CAJA-324, 331. 43 CAJA-943. 44 CAJA-324. 45 CAJA-211. 46 CAJA-335.

7 staff than any other offenders;47 could request contact visits with clergy;48 could possess personal clothing;49 and had more access to legal services than any other offenders because they could call their attorney from their cell and have legal research materials delivered to their cell.50 Death-row offenders also already enjoyed television and other entertainment equipment in their cells that is not permitted in the segregation units.51 In August 2015, after the Fourth Circuit dismissed Prieto’s challenge below, the Virginia Depart- ment of Corrections relaxed its death-row-housing policies, offering even greater privileges.52 Among the changes implemented: • outdoor recreation hours have been extended to a minimum of 90 minutes a day, 5 days a week; • in-pod recreation has been introduced for a minimum of one hour a day, 7 days a week, during which offenders are

47 CAJA-211. 48 Id. 49 CAJA-336. 50 CAJA-211, 438, 463. 51 CAJA-211, 336, 355-56. 52 See Affidavit of Harold Clarke, Director, Virginia De- partment of Corrections, attaching Interim Offender Rules & Regulations (Aug. 5, 2015), Porter v. Clarke, No. 1:14-cv-01588 (E.D. Va. Aug. 10, 2015), ECF No. 85-1.

unrestrained and may congregate with up to 3 other death-row offenders; • opportunities for showers have been expanded from a minimum of 3 days a week under the former policy to up to 7 days a week under the new policy; inmates are permitted to walk from their cell to the showers with their hands and feet unrestrained; and • weekly contact visits with immediate family members are now permitted.53 Construction is also underway on an outdoor recreation yard. Expected to be completed in October 2015, it will allow small groups of death-row inmates to play basketball and use stationary exercise equipment.54 An in-pod dayroom is also expected to be completed in October 2015; small groups of offenders will be permitted to congregate in that space to watch television or play games together, make telephone calls, take part in programming and employment opportunities, and use a JPAY kiosk to buy books or music and to send emails.55 The privileges are restricted to inmates without disciplinary infractions. Once an execution date is set, however, some of the expanded privileges described above are discontinued—such as congregating

53 Id. ¶¶ 5-8. 54 Id. ¶ 10. 55 Id. ¶ 11.

9 with other death-row inmates. Shortly before an execution date, the prisoner is transferred to Greens- ville Correctional Center, where the execution cham- ber is located. 3. In October 2012, Prieto filed this action pro se under 42 U.S.C. § 1983. He claimed that the conditions of his confinement on death row constituted cruel and unusual punishment in violation of the Eighth Amendment, and that the refusal of prison officials to allow him privileges enjoyed by inmates in the general prison population, and to consider him for housing there, violated the Due Process Clause of the Fourteenth Amendment.56 Screening his complaint under 28 U.S.C. § 1915A, the district court, the Hon. Leonie M. Brinkema presiding, dismissed the Eighth Amend- ment claim, ruling that segregated confinement, standing alone, is not cruel and unusual punishment.57 But the court concluded that Prieto had

56 CAJA-18-20. 57 Pet. 58a (following Sweet v. S.C. Dep’t of Corr., 529 F.2d 854, 861 (4th Cir. 1975) (“[I]solation from companionship, restriction on intellectual stimulation and prolonged inactivity, inescapable accompaniments of segregated confinement, will not render segregated confinement unconstitutional absent other illegitimate deprivations.” (citation and quotations omitted)); accord Trezza v. Brush, 142 U.S. 160 (1891) (holding that solitary confinement of death-row prisoners pending execution does not constitute cruel and unusual punishment); McElvaine v. Brush, 142 U.S. 155 (1891) (holding that solitary confinement of death-row prisoners pending execution does not violate the (Continued on following page)

“stated a claim that his due process rights have been violated by his indefinite placement in a special housing unit.”58 Prieto appealed the dismissal of his Eighth Amendment claim but the Fourth Circuit dismissed the appeal for failure to prosecute it.59 Counsel en- tered an appearance to pursue Prieto’s due process claim60 and conducted “extensive discovery,”61 including depositions of the Director of the Department of Corrections, the Warden of Sussex I, and numerous other corrections officials. After discovery closed, the parties filed cross-motions for summary judgment.62 Prieto argued that his conditions of confinement on death row were significantly more restrictive than conditions in the general prison population, meeting Sandin’s atypical-and-significant-hardship test for triggering due process rights. Virginia, he argued, gave prisoners in the general population (and in segregation) individualized consideration before placing them in facilities ranging from minimum security (Level 1) to maximum security (Level 5 and Level S).

privileges-and-immunities clause of the Fourteenth Amend- ment). 58 Pet. 54a. 59 Pet. 3a n.1. 60 Pet. 3a. 61 Pet. 34a. 62 Id.

Sussex I, which also houses the death-row unit, is a Level 5 facility.63 By contrast, Virginia’s prison regulations dictate that all inmates sentenced to death are categorically assigned to death row.64 The regulations state that: “The separation of offenders under the sentence of death from the general offender population is a correctional practice necessary for the control and management of an offender population with unique security, custodial, and programmatic needs.”65 Prieto claimed that his categorical assignment to death row and his continuing confinement there deprived him of liberty without due process. In particular, he argued that if he had been sentenced to life in prison, his good conduct while incarcerated would have qualified him for housing in a mid-security Level 3 prison.66 The record, however, included extensive testimo- ny from Virginia’s corrections officials about their

63 Prisoners in Level 5 detention include persons convicted of offenses ranging from driving under the influence and violat- ing parole, to habitual offenders driving on suspended licenses, to more serious offenders convicted of murder, robbery and rape. CAJA-296. 64 See VDOC Operating Procedure 830.2(D)(7) (“Any offender sentenced to Death will be assigned directly to Death Row”), CAJA-199. No reclassification occurs unless the sentence is vacated or commuted. Id. 65 VDOC Operating Procedure 460.A, CAJA-941. 66 CAJA-772-81, 788-89.

12 judgment of the importance of categorically confining inmates sentenced to death in a maximum-security facility segregated from the general prison population.67 As the Director of the Department put it: They’re segregated because we see those individuals as potentially the most desperate of all the offenders. Again, they have been sentenced to die. They have nothing to lose. . . . 68 The Director described his concern that permit- ting death-row offenders to congregate freely with other prisoners would jeopardize safety. He described an incident in the 1980s in which death-row inmates who regularly congregated at the maximum-security prison in Mecklenburg County, Virginia, “staged a mass escape,” an incident that “could have been catastrophic” had the escapees not been apprehend- ed.69 He further testified that, while no prisoner had yet escaped from Sussex I, there was a higher risk of a prisoner’s escaping from the general population unit there than from death row:

67 See, e.g., Clarke Dep. at CAJA-634-36, 639-48, 650-53, 656-60, 674, 678-79, 686-87; Robinson Dep. at CAJA-262, 573 (“[T]he propensity for something to go wrong [is] a lot more severe and if it goes wrong, it could be very serious.”); Davis Dep. at CAJA-286; Parks Dep. at CAJA-724, 753. 68 CAJA-639 (emphasis added). 69 CAJA-643. For a documentary about the Mecklenburg escape, see Court TV, Escape from Death Row (2001), https://www. youtube.com/watch?v=MwX0S5Yputw.

[O]ffenders in general population are moving about, they can see the fences. They can plan. They can study staff patterns of behavior and so forth and eventually find a way out. I have been in this business long enough where there have been escapes from high security facilities where offenders did just ex- actly what I said. They have all the time in the world to sit in the yard, to become familiar with staff, to become familiar with patterns of behaviors, the way things are done, and they can execute. And when they do it you’ll be left wondering where are they as they found that one seam they’re able to get through. And that is not something that we would want to ever occur with an offender who’s on death row.70 4. The district court granted summary judgment to Prieto. The court found that he had due process rights under Sandin because the housing conditions on death row were “extreme and atypical”71 compared to the general population units at Sussex I: First, general population inmates spend substantial time every day out of the confines of their cells. For example, they are given approximately 80 minutes of outdoor recreation four or five days per week, and they have access to the open prison yard, complete with

70 CAJA-644-45. 71 Pet. 39a.

a jogging track and basketball courts. Se- cond, general population inmates enjoy the near-constant company of others. They receive additional “in-pod recreation” time, during which they may socialize and play games together in a common area. This is to say nothing of the benefits of two communal meals per day, regular contact visits from family and friends, and group religious and educational programming. In other words, the experience for general population inmates at SISP is hardly a solitary one. Comparing these conditions to plaintiff ’s experience leads the Court to conclude that the conditions on death row are uniquely severe.72 The district court ordered the Department either to provide Prieto with “an individualized classification determination” for his prison housing, using procedures that are “the same or substantially similar to the procedures used for all non-capital offenders,” or to “improve [his] conditions of confinement” so they do “not impose an atypical and significant hardship.”73 The court denied the Department’s motion to suspend that injunction pending appeal74 and award- ed Prieto costs and attorney’s fees totaling $151,734.75

72 Pet. 40a (citations omitted). 73 CAJA-850-51 (Order). 74 CAJA-897. 75 CAJA-858; Pet. 3a.

5. The Fourth Circuit reversed in a 2-1 decision.76 In an opinion written by Judge Motz, and joined by Judge Shedd, the court explained that a “liberty” interest necessary to trigger due process rights must spring from either the Constitution itself or from a “state-created liberty interest” in avoiding certain conditions of confinement.77 Prieto waived any claim that his liberty interest arose from the Consti- tution itself because he had not raised that argument in the district court.78 Any such claim was also without merit because, as Sandin made clear, there is no liberty interest in avoiding conditions of confinement that are “within the sentence imposed.”79 The court further found that Prieto had failed to identify a State-created liberty interest because “[t]he record is clear that under Virginia law, a capital offender has no expectation or interest in avoiding confinement on death row.”80 (We refer to this as the “State-law-predicate issue.”) The court rejected Prieto’s argument that Sandin, together with Wil- kinson v. Austin,81 had eliminated the requirement that the “liberty interest” be one that the State actually

76 Pet. 1a. 77 Pet. 4a & n.2. 78 Pet. 4a n.2. 79 Id. (quoting Sandin, 515 U.S. at 481). 80 Pet. 12a (citing VDOC Operating Procedure 830.2(D)(7), CAJA-199). 81 545 U.S. 209 (2005).

16 created.82 The court noted that the Second Circuit likewise applies a two-tiered approach to claims under Sandin, requiring that the prisoner both identify a State-law predicate that creates the alleged liberty interest as well as show that the liberty interest meets Sandin’s atypical-and-significant-hardship test.83 Because Prieto failed in the first instance to identify a State-law predicate supporting his claimed “liberty interest,” his due process claim necessarily failed.84 Although its holding on the State-law-predicate issue was dispositive, the court went on to reject the district court’s use of general prison housing as the “baseline” for evaluating whether death-row conditions met Sandin’s atypical-and-significant-hardship test.85 (We refer to this as the “Sandin-baseline issue.”) The court explained that Prieto was among a “discrete class of inmates who had been sentenced to death and for that reason were required by state law to be confined under particular conditions.”86 Prieto was housed on death row “because of his conviction and sentence,” and “conditions dictated by a prisoner’s conviction and sentence are the conditions consti- tuting the ‘ordinary incidents of prison life’ for that

82 Pet. 8a-9a. 83 Pet. 5a n.3. 84 Pet. 12a. 85 Pet. 12a & n.8. 86 Pet. 15a.

17 prisoner.”87 In other words, “in the unusual instances in which state law mandates the confinement conditions to be imposed on offenders convicted of a certain crime and receiving a certain sentence, those confinement conditions are, by definition, the ‘ordinary incidents of prison life’ for such offenders.”88 Judge Wynn dissented. He read Sandin and Wilkinson to dispense with the requirement that a prisoner identify a State law or State regulation as the predicate for the required liberty interest.89 He thought that Prieto’s conditions “essentially mirror those in Wilkinson,”90 so that the atypical-and- significant-hardship test was satisfied “ ‘under any plausible baseline.’ ”91 And because Virginia categorically assigns death-sentenced inmates to death row, Judge Wynn believed that Virginia deprived Prieto of individualized consideration required by the Due Process Clause.92 Prieto timely filed a petition for writ of certiorari.

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87 Id. 88 Pet. 16a. 89 Pet. 23a. 90 Pet. 21a. 91 Pet. 23a (quoting Wilkinson, 545 U.S. at 223). 92 Pet. 27a-28a & n.2.

REASONS FOR DENYING THE WRIT I. Federal appeals courts are not split on the State-law-predicate question. The Fourth Circuit was right to find that neither Sandin nor Wilkinson dispensed with the requirement that a State-created liberty interest be one that the State actually created. And Prieto is wrong when he claims that the courts of appeals are “sharply divided”93 on that question.

A. Neither Sandin nor Wilkinson eliminated the requirement that a State- created liberty interest be created by State law. Sandin did not eliminate the requirement that a State-created liberty interest be one actually created by the State. Writing for the majority in Sandin, Chief Justice Rehnquist explained that prisoner due process claims had gotten out of hand as a result of the approach exemplified in Hewitt v. Helms.94 Under Hewitt, a State’s prison policy created a “liberty” interest whenever it “used language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed.”95

93 Pet. 1. 94 Hewitt v. Helms, 459 U.S. 460, 472 (1983). 95 Id. at 471-72.

As a result, Chief Justice Rehnquist explained, the Court had unwittingly “encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges.”96 That “produced at least two undesirable effects.”97 First, it created “disincentives for States to codify prison management procedures.”98 That was bad for both “the staff and inmate population.”99 Written management procedures not only “benefit the prisoner,” but “instruct subordinate employees how to exercise discretion vested by the State in the warden, and to confine the authority of prison personnel in order to avoid widely different treatment of similar incidents.”100 Allowing inmates to convert a procedure into a “liberty interest” thus discouraged what should have been a “desirable development”;101 it encouraged States to “avoid” creating liberty interests “by having scarcely any regulations, or by conferring standard- less discretion on correctional personnel.”102 “Second, the Hewitt approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources

96 Sandin, 515 U.S. at 480. 97 Id. at 482. 98 Id. (emphasis added). 99 Id. 100 Id. 101 Id. 102 Id.

20 with little offsetting benefit to anyone.”103 Chief Justice Rehnquist cited a litany of alleged “liberty interests” that had become the “common subject of prisoner claims since Hewitt”: • the liberty to participate in inmate “boot camp”; • the liberty to avoid restrictions on “prison furloughs”; • the liberty to have a “tray lunch rather than a sack lunch”; • the liberty to have “a paperback dictionary”; • the liberty to avoid transfer to a cell “without electrical outlets for televi- sions”; and • the liberty to avoid eating “food loaf.”104 Sandin explained that allowing prisoners to bring § 1983 claims based on such mundane “liberty” interests ran “counter to the view expressed in sever- al of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.”105 To remedy that problem, Sandin established an independent barrier to such claims. While “States

103 Id. 104 Id. at 483. 105 Id. at 482.

21 may under certain circumstances create liberty interests which are protected by the Due Process Clause,” the asserted liberty interest must involve a “freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”106 Applying that atypical-and-significant-hardship test, Sandin rejected the inmate’s claim that he had a liberty interest under Hawaii law in not being sent to disciplinary segregation for a 30-day period. That claim failed because “discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.”107 Such confinement “mir- rored those conditions imposed upon inmates in administrative segregation and protective custody.”108 No fair reading of Sandin suggests that the Court was trying to increase the number of prisoner claims, rather than to impose a materiality standard to limit their proliferation. The Court “granted certiorari to reexamine the circumstances under which state prison regulations afford inmates a liberty

106 Id. at 483-84 (citations omitted). 107 Id. at 486. 108 Id.

22 interest protected by the Due Process Clause.”109 In rejecting Hewitt’s fixation on mandatory language, the Court nowhere said that it was eliminating the State-law-predicate requirement. To the contrary, it said: The time has come to return to the due process principles we believe were correctly established and applied in Wolff[110] and Meachum[111]. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause.112 The Court thus said explicitly that it wanted to “return” to the principle that “States may under certain circumstances create liberty interests” protected by the Due Process Clause. More importantly, the Court explicitly reaffirmed the approach it used in Wolff and Meachum, cases expressly requiring the prisoner to identify a State law or policy that creates his claimed liberty interest. In Wolff, the Court held that, while the Constitu- tion itself does not guarantee Nebraska prisoners “good time” credits for good behavior, a Nebraska law had created a “liberty” interest in such credits that triggered due process protection:

109 Id. at 474 (emphasis added). 110 Wolff v. McDonnell, 418 U.S. 539 (1974). 111 Meachum v. Fano, 427 U.S. 215, 225 (1976). 112 Sandin, 515 U.S. at 483-84 (emphasis added).

Nebraska may have the authority to create, or not, a right to a shortened prison sentence through the accumulation of credits for good behavior. . . . But the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner’s interest has real substance and is sufficiently em- braced within Fourteenth Amendment “liberty” to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.113 The Court said that its treatment of State-created liberty interests in the prison context thus “parallels” its treatment of State-created property interests that also become entitled to due process protection.114 In Meachum, the Court held that a Massachu- setts law had not created any liberty interest triggering due process rights before the prisoner was transferred from a low-security to maximum-security prison. The Court explained that, “given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of

113 Wolff, 418 U.S. at 557 (emphasis altered). 114 Id.

24 confinement do not otherwise violate the Constitu- tion.”115 Thus, the State may constitutionally confine the prisoner in any facility (or transfer him to any facility) warranted by the original sentence: Confinement in any of the State’s institu- tions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institu- tion with the more severe rules.116 Applying those principles, Meachum found no State-created liberty interest. Just as Virginia law does not give Prieto any legal entitlement to avoid being housed on death row, Massachusetts law did not give the prisoner in Meachum any State-based entitlement to avoid being housed in a maximum- security facility.117 Wolff and Meachum—which Sandin confirms remain controlling law—are dispositive of Prieto’s claim here. Virginia makes clear that all prisoners

115 Meachum, 427 U.S. at 224. 116 Id. at 225. 117 Id. at 226 (“Massachusetts law conferred no right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct.”).

25 sentenced to death are housed on death row until their sentence is carried out.118 Nothing in Wilkinson changes that conclusion. Quoting Sandin, Wilkinson reiterated the rejection of Hewitt’s focus on the “mandatory” nature of the language in a State-prison regulation; reiterated that “States may under certain circumstances create liberty interests which are protected by the Due Process Clause”; and reiterated that the Court had “return[ed] to the due process principles we believe were correctly established in and applied in Wolff and Meachum.”119 Prieto hangs his hat on the next sentence: After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves “in relation to the ordinary incidents of prison life.”120

118 Pet. 12a (“The record is clear that under Virginia law, a capital offender has no expectation or interest in avoiding confinement on death row. A written Virginia policy requires all capital offenders to be housed on death row prior to execution, without any possibility of reclassification.”). 119 545 U.S. at 222 (quoting Sandin, 515 U.S. at 483-84). 120 Id. at 223.

But read in context with the block quote from Sandin that precedes it, the Court was talking about the rejection of Hewitt’s fixation on “mandatory” language, not on whether the liberty interest had been created by State law. Although Ohio vacillated on whether Ohio inmates had a liberty interest in avoiding confinement in a supermax facility,121 the Court ultimately found such a liberty interest under Ohio law, apparently influenced by the fact that, under Ohio’s prison regulations, placement in supermax “disqualifie[d] an otherwise eligible inmate for parole consideration.”122 If Wilkinson truly had eliminated the State-law- predicate requirement, it would make no sense “to return to the due process principles . . . established in and applied in Wolff and Meachum,”123 both of which, as shown above, looked to whether State law established the liberty interest in question. It would also make no sense to speak of a “State-created” liberty interest when the State would no longer have created that interest. Prieto’s position would nationalize the inquiry and dispense with a State’s ability not to create liberty interests. That cannot be what this Court meant to do. In solving the problem created by Hewitt, the Court did not throw the baby out with the

121 Id. at 221. 122 Id. at 224. 123 Id. at 222 (quoting Sandin, 515 U.S. at 483).

27 bathwater by abandoning the State-law-predicate requirement altogether.

B. The circuits are not “sharply divided” on the question. In 1995, shortly after Sandin, the Second Circuit ruled in Frazier v. Coughlin that Sandin did not eliminate the State-law-predicate requirement: [N]othing in Sandin suggests that a protected liberty interest arises in the absence of a particular state regulation or statute that (under Hewitt) would create one. To prevail, [the prisoner] must establish both that the confinement or restraint creates an “atypical and significant hardship” under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.124 The Second Circuit has consistently followed that rule, describing it in Tellier v. Fields as “a two-part analysis.”125 The Fourth Circuit’s decision below agrees with that approach. Prieto is wrong to claim that “[t]en other courts of appeals have rejected that approach.”126

124 81 F.3d 313, 317 (2d Cir. 1996) (emphasis added). 125 280 F.3d 69, 80 (2d Cir. 2000). 126 Pet. 21.

D.C. Circuit. For starters, the District of Colum- bia Circuit, in Hatch v. District of Columbia,127 left open the question whether a prisoner who makes a prima facie showing that his conditions of confinement are atypical and harsh under Sandin must also show a violation of an entitlement created by a State statute or regulation.128 The court did not need to reach that issue because the D.C. regulation in question created a protected liberty interest.129 Third, Fifth, Sixth, Seventh and Eighth Circuits. Prieto relies on snippets of dicta to miscount these five circuits in his claimed circuit split. Powell v. Weiss simply repeated this Court’s ruling rejecting the mandatory-language approach used in Hewitt.130 But that does not mean the Third Circuit abandoned the State-law-predicate requirement. It said simply that “state-created liberty interests are limited” to those meeting Sandin’s atypical-and-significant- hardship test.131 The Fifth Circuit in Wilkerson v. Goodwin132 did not address whether Sandin dispensed with the need to identify a State-law predicate giving rise to a protected liberty interest. The court observed that a

127 184 F.3d 846 (D.C. Cir. 1999). 128 Id. at 853. 129 Id. 130 757 F.3d 338, 345 (3d Cir. 2014). 131 Id. at 345-46. 132 774 F.3d 845 (5th Cir. 2014).

29 liberty interest “ ‘may arise from an expectation or interest created by state laws or policies,’ ” and that “[w]ith regard to the latter, we focus on ‘the nature of the deprivation’ resulting from a state regulation, rather than ‘the language of a particular regulation.’ ”133 The Fourth Circuit properly found Wilkerson to be inapposite.134 In Mackey v. Dyke,135 the Sixth Circuit said that “Sandin expressly overruled the Hewitt methodolo- gy,”136 but that is different from eliminating the State- law-predicate requirement. Prieto improperly counts the Seventh Circuit’s decision in Thomas v. Ramos for the same reason.137 In fact, a more recent Seventh Circuit case looked to Wisconsin law to find “no state- created liberty interest in early release.”138

133 Id. at 852 (emphasis added; citations omitted). 134 Pet. 10a n.6 (“[I]n so concluding, the Fifth Circuit expressly acknowledged, as we hold, that to give rise to a due process challenge, a deprivation must ‘result[ ] from’ the alleged violation of a state regulation. Unlike Wilkerson, Prieto can point to no deprivation resulting from the violation of a state regulation.”) (quoting Wilkerson, 774 F.3d at 852). 135 111 F.3d 460 (6th Cir.), cert. denied, 522 U.S. 848 (1997). 136 Id. at 462. 137 130 F.3d 754, 760 (7th Cir. 1997) (“In Sandin, the Supreme Court abandoned the approach that the mandatory nature of statutory and regulatory language creates a liberty interest and held that the actual focus of the liberty interest inquiry is the nature of the deprivation that a prisoner suffers.”). 138 Knowlin v. Heise, 420 F. App’x 593, 597 (7th Cir. 2011) (emphasis added).

The Eighth Circuit’s articulation of the Sandin test in Phillips v. Norris—that “to determine whether an inmate possesses a liberty interest, we compare the conditions to which the inmate was exposed in segregation with those he or she could expect to experience as an ordinary incident of prison life”139— does not show that the court dispensed with the State-law-predicate requirement. The court said “there is no federal constitutional liberty interest in having state officers follow state law or prison officials follow prison regulations.”140 But that is different from saying that a prisoner can succeed on a due process claim in the absence of any such State-law predicate. Phillips said nothing of the sort. Ninth Circuit. Prieto’s Ninth Circuit case, Chap- pell v. Mandeville,141 represents the ruling of only a single judge on the issue presented here. Judge Bybee alone wrote that Sandin eliminated the need to look at the actual prison regulations at issue; he went on to rule that the prisoner’s claim failed under the “atypical and significant hardship” test.142 In light of that finding, his discussion of the State-law-predicate issue was dictum. While Judge Graham concurred that the prisoner’s claim failed the atypical-and- significant-hardship test, he rejected Judge Bybee’s

139 320 F.3d 844, 847 (8th Cir. 2003) (citation and quotation omitted). 140 Id. 141 706 F.3d 1052 (9th Cir. 2013). 142 Id. at 1063-64.

31 reading of Sandin, calling it “a radical change in due process jurisprudence and a significant departure from previous limitations.”143 Judge Graham concluded that the prisoner’s claim failed because the prison regulation at issue created no liberty interest that could support a due process claim.144 And the third panel member, who dissented in part, likewise de- clined to join Judge Bybee’s reading of Sandin.145 A view of one panel member that was rejected by the other two does not represent the views of the Ninth Circuit. Tenth Circuit. Clark v. Wilson146 involved a prisoner with an unquestionable State-property interest— funds in his prison account. Yet the Tenth Circuit dismissed his § 1983 claim on qualified-immunity grounds because it was not clearly established that garnishing his account without prior notice met Sandin’s atypical-and-significant-hardship test.147 Clark does not prove that a State-law predicate is unnecessary, only that having one is not enough to win a due process claim. Similarly, Hill v. Flem- ing148—which the Tenth Circuit disclaimed as “not

143 Id. at 1065-66 (Graham, J., concurring). 144 Id. at 1068-69. 145 Id. at 1069 (Berzon, J., dissenting in part). 146 625 F.3d 686 (10th Cir. 2010). 147 Id. at 691. 148 173 F. App’x 664 (10th Cir. 2006).

32 binding precedent”149—said simply that Sandin “discouraged concentration solely on the mandatory language of such regulations.”150 The word solely shows that a State-law predicate was not irrelevant. The court then went on to analyze the State regulation in question, for purposes of qualified-immunity analysis, concluding that it did not clearly create a liberty interest that triggered due process protection.151 And as with his incomplete survey of the Sixth and Seventh Circuits, Prieto overlooks a more recent Tenth Circuit case that said that “State policies or regulations . . . may create a liberty interest in avoiding particular conditions of confinement,” but only “when they ‘impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ”152 That comports with the approach in the Second and Fourth Circuits. Eleventh Circuit. Nor does the Eleventh Circuit’s decision in Magluta v. Samples153 fit Prieto’s survey. The court held that the prisoner there had stated a valid due process claim based on more than 500 days of isolation, both because “the substantive predicates

149 Id. at 665 n.*. 150 Id. at 674 (emphasis added). 151 Id. at 675. 152 McAdams v. Wyo. Dep’t of Corr., 561 F. App’x 718, 720 (10th Cir. 2014) (quoting Wilkinson, 545 U.S. at 221). 153 375 F.3d 1269 (11th Cir. 2004).

33 and extensive use of mandatory language in [the prison regulation] would create a liberty interest in remaining in the general prison population,”154 and because the more-than-500-day solitary confinement met Sandin’s atypical-and-significant-hardship test.155 Thus, the prisoner adequately “alleged the protection of a liberty interest under either the Hewitt or the Sandin standard.”156 The truth of the matter is that, to date, the Second and Fourth Circuits are the only courts of appeals to have ruled on the question presented here. While a single judge on the Ninth Circuit found in Chappell that Sandin eliminated the State-law- predicate requirement, he was outnumbered by the other two on the panel. Thus, the circuits are not split on this question, let alone “sharply divided.”157

II. There is also no circuit split on Prieto’s claim that general prison housing estab- lishes the baseline for evaluating death- row housing. It remains true today, as when Wilkinson was decided in 2005, that “the Courts of Appeals have not

154 Id. at 1281. 155 Id. at 1282. 156 Id. 157 Pet. 1, 13.

34 reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system.”158 But that does not help Prieto show a circuit split on the question of the relevant baseline for evaluating death-row housing. Not a single court of appeals has ever held, as Prieto urges, that general prison housing is the benchmark for evaluating death-row housing. In approving Florida’s decision to exempt death-row prisoners from its classification process that deter- mined where to assign other prisoners, the Fifth Circuit said: [W]hen a person in Florida is convicted of a capital crime and sentenced to death, that person is transferred to a prison and imme- diately placed in administrative segregation. Because death row inmates are never placed in the general population or given an expectation of being placed in the general population, it appears that no liberty interest is affected when they are placed in administrative segregation.159 Similarly, in Smith v. Coughlin, the Second Circuit held that a prisoner sentenced to death was not entitled to due process before being transferred to

158 545 U.S. at 223. 159 Parker v. Cook, 642 F.2d 865, 874 n.7 (5th Cir. Unit B Apr. 1981) (emphasis added).

35 death row.160 District courts, including the Ohio district court on remand in Wilkinson, have routinely concluded that the relevant baseline for death- sentenced offenders is other death-sentenced offenders.161 Death-row offenders are sui generis. In Virginia, for example, a person convicted of a capital offense cannot be sentenced to death unless the trier of fact also finds that the offender “would commit criminal acts of violence that would constitute a continuing

160 748 F.2d 783, 787 (2d Cir. 1984). 161 See Austin v. Wilkinson, No. 4:01-cv-00071, 2008 U.S. Dist. LEXIS 24032, at *22, 2008 WL 697679, at *6 (N.D. Ohio Mar. 12, 2008) (“[T]he Court must compare the conditions on death row at the [Ohio State Penitentiary] to the conditions on death row at other Ohio prisons.”); Williams v. Wetzel, No. 12- 944, 2013 U.S. Dist. LEXIS 184000, at *12 (W.D. Pa. Dec. 9, 2013) (finding no liberty interest in being transferred to the general prison population before a death-sentenced inmate’s conviction was commuted to life in prison), adopted by 2014 U.S. Dist. LEXIS 7428, 2014 WL 252020, at *3-4 (W.D. Pa. Jan. 22, 2014); Lisle v. McDaniel, No. 3:10-cv-00064, 2012 U.S. Dist. LEXIS 170471, at *11, 2012 WL 6008784, at *4 (D. Nev. July 5, 2012) (“The condition of being housed in the [Condemned Men’s Unit] is not atypical to other inmates on death row at [Ely State Prison]; therefore, plaintiff does not have a liberty interest.”), adopted by 2012 U.S. Dist. LEXIS 170467, 2012 WL 6005189 (D. Nev. Nov. 30, 2012); see also Conway v. Wilkinson, No. 2:05-cv-820, 2005 U.S. Dist. LEXIS 31294, at *12-13 (S.D. Ohio Dec. 6, 2005) (“While ‘general population’ inmates may be afforded less visiting restrictions than death-row inmates, death-row inmates could pose a greater security risk to prison personnel. Additionally, death-row inmates may pose a greater flight risk.”).

36 serious threat to society,” or that his offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.”162 The jury that gave Prieto two death sentences “unanimously found both aggravating factors of future dangerousness and vileness. . . .”163 Such findings are not required of homicide offenders sentenced to life in prison. States are entitled to make the judgment that death-sentenced offenders, as a class, should be confined in maximum-security conditions in a unit segregated from general prison offenders. Prieto’s criminal trial and sentencing hearing provided all the “process” that was “due” before he was placed in such confinement. “States are not barred by principles of ‘procedural due process’ from drawing such classifica- tions.”164 “[T]he law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded oppor- tunity to contest.”165 In addressing this type of claim, courts also must “defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to

162 Va. Code Ann. § 19.2-264.2 (2008). 163 Prieto II, 721 S.E.2d at 489 (emphasis added). 164 Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 8 (2003). 165 Id. at 7.

37 problems of [prison] security.”166 Although Prieto’s amici attempt to introduce extra-record material,167 there was ample evidence in the record below to support the judgment of the Virginia Department of Corrections that the restrictive conditions of confinement on death row are warranted, particularly the segregation of death-row inmates from general population offenders: death-sentenced prisoners can be “the most desperate of all the offenders,”168 have “nothing to lose,”169 and pose a greater escape risk if housed in the general prison population.170 Courts properly recognize that death-row inmates can “pose a greater security risk to prison personnel” and “a greater flight risk.”171 Even the ABA Criminal Justice Standards on the Treatment of Prisoners (2010),172 on which Prieto’s amici rely,173

166 Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1513-14 (2012); see also id. at 1516 (explaining that a single “instance in which an inmate attempted to sneak contraband back into the facility” was sufficient to justify the body-cavity- and-strip-search requirement upheld in Bell v. Wolfish, 441 U.S. 520, 558-59 (1979)). 167 Corrections Experts Amicus Br. 16-25. 168 CAJA-639. 169 Id. 170 CAJA-644-45. 171 Conway, 2005 U.S. Dist. LEXIS 31294, at *12-13. 172 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.authcheckdam.pdf. 173 Corrections Experts Amicus Br. 16.

38 acknowledge that “separate housing areas should be permissible for prisoners under sentence of death.”174 The ABA Standards go on to say that “[i]f convicted capital offenders are separately housed based solely on their sentence, conditions should be comparable to those provided to the general population.”175 But the ABA acknowledges there is “no case law support” for that recommendation, that it would require institu- tional changes “[p]robably for most states,” and that it is not “constitutionally compelled.”176 In short, death-sentenced offenders are different from general population offenders. There is no circuit split whatever on that point or on the Sandin- baseline issue as applied in this case.

III. This case provides a poor vehicle to reach the questions presented. This petition is also a poor vehicle to address the questions presented because the case is likely to become moot before it can be decided. The Fourth Circuit denied Prieto’s federal habeas petition on

174 ABA Criminal Justice Standards, supra, at 33. 175 Id. 176 Id. at 34.

June 30, 2015,177 and the state circuit court has set his execution date for October 1, 2015.178 The case is also not a good vehicle to address Justice Kennedy’s concern in his concurrence in Davis v. Ayala about the “human toll wrought by extended terms of isolation” in solitary confinement,179 or Justice Breyer’s concern in Glossip v. Gross about the “excessively long periods of time that individuals typically spend on death row.”180 Even under the prior policy in effect when Prieto brought this case, Virgin- ia’s death-row inmates had significantly greater privileges and more human contact and interaction than inmates in administrative or disciplinary segregation.181 They also receive “twice daily visits from medical personnel” and visits “at least once a week” from a mental health practitioner.182 The recent expansion of privileges—longer recreation time, weekly contacts visits with family, and supervised congregate activities183—makes conditions on Virginia’s

177 Prieto v. Zook, 791 F.3d 465 (4th Cir. 2015), reh’g en banc denied, No. 14-4 (4th Cir. July 28, 2015), ECF No. 53. 178 See Order, Commonwealth v. Prieto, No. FE2005-1764 (Fairfax Cnty. Cir. Ct. Va. Aug. 18, 2015), filed in Prieto v. Zook, No. 14-4 (4th Cir. Aug. 19, 2015), ECF No. 58. 179 135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring). 180 Glossip v. Gross, 135 S. Ct. 2726, 2764 (2015) (Breyer, J., dissenting). 181 See supra at 6-7. 182 CAJA-437. 183 See supra at 7-8.

40 death row significantly more progressive than the norm among other States with capital punishment.184 Furthermore, the average duration of confinement on Virginia’s death row is perhaps the shortest in the country. Condemned prisoners reside there, on average, for seven to ten years before their legal appeals are exhausted and their sentence is carried out.185 Prieto’s execution date (10/1/2015) is less than seven years from when he was transferred to Virgin- ia’s death row (10/30/2008). That is nothing like the “nearly 18 years” of delay described in Justice Breyer’s dissent in Glossip,186 or the 25-to-30-plus- year delay that recently led a federal district judge to vacate a California death sentence on Eighth Amendment grounds.187 What is more, this case is not well postured to reach broader questions concerning the use of segregated confinement for extended periods on death row. The pending challenge to long-term confinement on

184 See ASCA survey at CAJA-867-90. 185 CAJA-679. 186 135 S. Ct. at 2764 (Breyer, J., dissenting). 187 Jones v. Chappell, 31 F. Supp. 3d 1050, 1060 (C.D. Cal. 2014) (“Of the 17 [inmates] that are currently awaiting their execution, each has been on [California’s] Death Row for more than 25 years, and eight have been there for more than 30 years.”), appeal argued, No. 14-56373 (9th Cir. Aug. 31, 2015); see also id. at 1066 (“These delays—exceeding 25 years on average—are inherent to California’s dysfunctional death penalty system, not the result of individual inmates’ delay tactics, except perhaps in isolated cases.”).

California’s death row is based on an Eighth Amend- ment claim.188 Prieto’s amicus asks this Court to reach what it calls “serious Eighth Amendment concerns” in this case.189 But as the Fourth Circuit noted below, Prieto waived any Eighth Amendment argument by failing to appeal the district court’s dismissal of that claim.190 Prieto also waived any claim that the Consti- tution itself, rather than State law, creates a liberty interest giving rise to a due process claim because he failed to raise that argument in the district court.191 In short, this nearly-moot case is a poor vehicle to reach either the two questions presented here or the broader concerns recently voiced by Justices Kennedy and Breyer.

------♦ ------

188 Id. at 1052. 189 Constitutional Accountability Ctr. Amicus Br. 4, 13. 190 Pet. 3a n.1. 191 Pet. 4a n.2.

CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted,