Rehearing en banc granted by order

filed 3/26/99; published opinion filed

1/20/99 is vacated.
Filed: February 17, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-7539

(CA-95-237)

Irving Houston Hawkins,

Petitioner - Appellant,

versus

Franklin Freeman, etc., et al,

Respondents - Appellees.

ORDER

The court amends its opinion filed January 20, 1999, as

follows:

On page 35, second full paragraph, line 5 -- the word

"objections" is corrected to read "object ives."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IRVING HOUSTON HAWKINS,

Petitioner-Appellant,

v.

FRANKLIN FREEMAN, Secretary for the

No. 96-7539

North Carolina Department of

Correction; J. V. TURLINGTON,

Superintendent, Pender Correctional

Institute,

Respondents-Appellees.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Richard C. Erwin, Senior District Judge.

(CA-95-237)

Argued: June 3, 1998

Decided: January 20, 1999

Before MURNAGHAN and ERVIN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded with instructions to grant the petition by published opinion. Judge Murnaghan wrote the opinion, in which Judge

Ervin joined. Senior Judge Phillips wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Kelly M. Baldrate, Third Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW APPELLATE LITIGA-
TION CLINIC, Charlottesville, Virginia, for Appellant. Clarence Joe

DelForge, III, Assistant Attorney General, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Neal L. Walters, James D. Jones, Third Year Law

Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Charlottesville, Virginia, for Appellant. Michael F. Easley, Attorney General, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

In 1981, Irving Hawkins was sentenced to fifty years of imprisonment in North Carolina as a habitual felon. After receiving contradictory notifications about when he would be eligible for parole, he was

finally paroled in 1992. Hawkins successfully reintegrated into the

community, obeying all conditions of his parole, holding a job in

which he was promoted, and reacquainting himself with his family.

Then in 1994 he was rearrested on the basis that the determination

that he was eligible for parole had been made in error.

Having exhausted his state appeals, Hawkins petitioned for habeas

corpus relief. He argues primarily that his reincarceration violates the

Fourteenth Amendment's guarantee of substantive due process. We

hold that, where the parolee did not know that his release was in error,

his interest in his continued liberty crystallized during the two years

of successful parole and the Fourteenth Amendment requires that we

strictly scrutinize the State's intentional infringement of that interest.

I.

The facts in this case are essentially agreed upon: the State does not

contest Hawkins's "apparent good-conduct while released," and Hawkins concedes that, although he did not realize it at the time, he was

statutorily ineligible when he was paroled.1 We begin with a short

review of how Hawkins came to be arrested, paroled and rearrested.

_________________________________________________________________

1 We expressed some concern at oral argument about how the evidence

about Hawkins's rehabilitation had gotten into the record, as it appeared

 2
On February 27, 1981, Irving Hawkins was convicted in Guilford

County, North Carolina, of possession, sale and delivery of one-half

gram of cocaine. Hawkins was found to be a habitual felon and sentenced to fifty years of imprisonment on the sale and delivery charge

and ten years concurrently on the possession charges (along with sixty

days concurrently on a charge of driving under the influence). It must

be admitted that Hawkins is not a sympathetic character. The habitual

felon determination was based on evidence that Hawkins had as a

young man been convicted of and imprisoned for one count of rape,

two counts of aggravated assault with intent to commit rape and one

count of armed robbery. See State v. Simmons, 286 S.E.2d 898, 900

(Ct. App. N.C. 1982). His FBI record reveals other less serious

charges as well, both as an adult and as a minor.

From the beginning of his incarceration as a habitual felon, Hawkins was given conflicting explanations of when he would be eligible

for parole. The record suggests that, at first, he may have been told

that he would be eligible for parole very shortly after his conviction.

Then, on June 14, 1982, the Parole Commission informed Hawkins

that he would not be eligible for parole until he had "served 30 years"

of his sentence, giving him a parole eligibility date of "October 20,

2010." The Commission assured Hawkins it had "studied all the facts

in your case, and we are sure that we are following the requirement

of the law" in reaching this 2010 date. About a year later, on September 7, 1983, the Parole Commission changed its mind once again:

"After carefully checking your parole eligibility date, we find that you

will not be eligible for parole until April 20, 2018." Finally, on March

13, 1992, Hawkins was suddenly informed that he was being consid-

_________________________________________________________________

to have been based on the Parole Commission's report of the parole revocation hearing rather than on state court findings of fact or a federal court

evidentiary hearing. Because there are no state court findings of fact to

presume correct, we would typically assume the truth of Hawkins's attestations for purposes of deciding the appeal from summary judgment, see

Turner v. Jabe, 58 F.3d 924, 930 n.6 (4th Cir. 1995), and would remand

to the district court to hold an evidentiary hearing if those facts established that Hawkins was entitled to relief. However, the State assured us

that it did not contest the facts put forth by Hawkins, and that no remand

for further fact-finding was necessary.

 3
ered for community service parole. Assuring Hawkins that it had

"made a careful investigation of this case," the Parole Commission

paroled Hawkins on July 6, 1992.

Hawkins claims to have been completely rehabilitated during his

eleven years of imprisonment. The magistrate judge who first heard

this habeas petition found that Hawkins had a good prison record during those years and, while incarcerated, obtained a business degree

from Shaw University through a study-release program. The magistrate judge further found that during Hawkins's nearly two years on

parole he substantially complied with his parole obligations, held a

steady job in which he was promoted, and reestablished ties with his

family. Although there is some indication that Hawkins did not complete the community service that he was assigned, the Parole Commission reported that "Hawkins had no problems while on parole,"

and the State does not contest Hawkins's statement in his affidavit

that during his release he "never violated [his] parole."

Then, on March 25, 1994, Hawkins was rearrested on the basis that

he had not been eligible for parole in 1992. The Parole Commission

concluded that the habitual felon statute under which Hawkins was

sentenced, N.C. Gen. Stat. § 14-7.6, required that he serve 75% of his

50-year sentence (37.5 years) before he would be eligible for parole.

Ironically, that statute had been repealed effective only four months

after Hawkins's sentencing and replaced with a requirement that a

habitual offender serve "not less than seven years." By letter of October 10, 1994, the Commission informed the reincarcerated Hawkins

that his "current parole eligibility date" would be April 20, 2018.

Hawkins challenged his reincarceration on various grounds. Having effectively exhausted his claims in state court, 2 Hawkins on January 27, 1995, petitioned for habeas corpus relief. His claim therefore

is subject to the pre-Antiterrorism and Effective Death Penalty Act

standards. See Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997). A

magistrate judge recommended that such relief be denied, and the district judge agreed with that recommendation, granting summary judgment to the State. Hawkins appeals to us.

_________________________________________________________________

2 The State has waived the exhaustion requirement for Hawkins's main

claim of a substantive due process violation.

 4
II.

We review the district court's grant of summary judgment to the

State de novo. See Savino v. Murray, 82 F.3d 593, 598 (4th Cir.

1996). Hawkins argues primarily that his reincarceration violated his

substantive due process rights, and advances alternative theories of

waiver, estoppel and the bar against installment sentences. He also

argues that his parole revocation hearing did not contain all of the

procedural protections he was due. Because we believe that the established principles of the substantive component of the Fourteenth

Amendment's Due Process Clause govern the case, we begin with an

exposition of those principles.

A.

The Due Process Clause of the Fourteenth Amendment guarantees

that no state shall "deprive any person of life, liberty, or property,

without due process of law." U.S. Const. amend. XIV. "Although a

literal reading of the Clause might suggest that it governs only the

procedures by which a State may deprive persons of liberty, for at

least [111] years, since Mugler v. Kansas, 123 U.S. 623, 660-661

(1887), the Clause has been understood to contain a substantive component as well, one `barring certain government actions regardless of

the fairness of the procedures used to implement them.'" Planned

Parenthood v. Casey, 505 U.S. 833, 846 (1992) (quoting Daniels v.

Williams, 474 U.S. 327, 331 (1986)). Through the doctrine of substantive due process, "all fundamental rights comprised within the

term liberty are protected by the Federal Constitution from invasion

by the States." Whitney v. California, 274 U.S. 357, 373 (1927)

(Brandeis, J., concurring), quoted in Planned Parenthood, 505 U.S.

at 847.

It is contested whether the asserted interest infringed by Hawkins's

reincarceration is such a fundamental liberty right. The Supreme

Court has "regularly observed that the Due Process Clause specially

protects those fundamental rights and liberties which are, objectively,

`deeply rooted in this Nation's history and tradition' and `implicit in

the concept of ordered liberty,' such that `neither liberty nor justice

would exist if they were sacrificed.'" Washington v. Glucksberg, 117

S. Ct. 2258, 2268 (1997) (quoting Moore v. City of East Cleveland,

 5
431 U.S. 494, 503 (1977) (plurality opinion), Palko v. Connecticut,

302 U.S. 319, 325 (1937), and id. at 326) (citations omitted). Certain

liberties enshrined in the Bill of Rights offer the clearest examples of

those held to be "fundamental," but the category is not limited to this

list, nor is it limited to "those practices, defined at the most specific

level, that were protected against government interference by other

rules of law when the Fourteenth Amendment was ratified." Planned

Parenthood, 505 U.S. at 847. Instead, the "full scope of the liberty

guaranteed by the Due Process Clause" comprises "a rational continuum which, broadly speaking, includes a freedom from all substantial

arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain

interests require particularly careful scrutiny of the state needs

asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497,

543 (1961) (Harlan, J., dissenting from dismissal on jurisdictional

grounds) (citations omitted), quoted in Planned Parenthood, 505 U.S.

at 848-49.

But substantive due process does not absolutely guarantee that

these fundamental rights will be held inviolate. Executive action that

infringes such a right violates the substantive component of the Due

Process Clause "only when it `can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.'" County of

Sacramento v. Lewis, 118 S. Ct. 1708, 1717 & n.8 (1998) (quoting

Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992)). In the

past, the Supreme Court has described the substantive due process

doctrine as if it provided two independent types of protection: "Socalled `substantive due process' prevents the government from engaging in conduct that `shocks the conscience' or interferes with rights

`implicit in the concept of ordered liberty.'" United States v. Salerno,

481 U.S. 739, 746 (1987) (quoting Rochin v. California, 342 U.S.

165, 172 (1952), and Palko, 302 U.S. at 325-26) (citations omitted)

(emphasis added). However, the Court's most recent foray into the

realm characterizes the determination "whether the behavior of the

governmental officer is so egregious, so outrageous, that it may fairly

be said to shock the contemporary conscience" as a "threshold question," "antecedent to" any "possibility of recognizing a substantive

due process right to be free of such executive action." County of

Sacramento, 118 S. Ct. at 1717 n.8. Therefore, not unless executive

action "shocks the conscience" does it reach the level of abuse of

 6
power necessary to invoke substantive due process protections for

life, liberty or property. Id. at 1717 & n.8.

Negligently inflicted harm, the basis of traditional tort liability, is

not sufficiently conscience-shocking as to implicate constitutional

Due Process Clause protections, whether substantive or procedural.

See id. at 1718 (citing Davidson v. Cannon , 474 U.S. 344, 348

(1986)). "Whether the point of the conscience-shocking is reached

when injuries are produced with culpability falling within the middle

range, following from something more than negligence but `less than

intentional conduct, such as recklessness or "gross negligence,"' is a

matter for closer calls." Id. (quoting Daniels, 474 U.S. at 334 n.3)

(citations omitted). That is, "deliberately indifferent [official] conduct

[is] enough to satisfy the fault requirement for due process claims" in

certain circumstances, id. (giving as an example a state's deliberate

indifference to the medical needs of its prisoners, in violation of the

Eighth Amendment), although in other circumstances such

"[d]eliberate indifference . . . may not be so patently egregious" as to

constitute a conscience-shocking abuse of power, id. at 1718-19

(explaining that deliberate indifference to life is "less egregious" in

the context of a high-speed law enforcement chase). Rather than negligence, recklessness or deliberate indifference, it has traditionally

been intentional actions, those "deliberate decisions of government

officials to deprive a person of life, liberty, or property," about which

the substantive component of the Due Process Clause is concerned.

Daniels, 474 U.S. at 331, quoted in County of Sacramento, 118 S. Ct.

at 1718. "[C]onduct intended to injure in some way unjustifiable by

any government interest is the sort of official action most likely to rise

to the conscience-shocking level." County of Sacramento, 118 S. Ct.

at 1718.

B.

Applying these principles to Hawkins's case, our task is to determine whether the agreed-upon facts demonstrate that the State has

intentionally violated a fundamental liberty interest, or has been deliberately indifferent to such an interest to an extent that shocks the conscience. If so, the State's actions must be subjected to strict scrutiny.

"[T]he Fourteenth Amendment `forbids the government to infringe

. . . "fundamental" liberty interests at all, no matter what process is

 7
provided, unless the infringement is narrowly tailored to serve a compelling state interest.'" Glucksberg, 117 S. Ct. at 2268 (quoting Reno

v. Flores, 507 U.S. 292, 302 (1993)) (ellipsis in original); Herndon

v. Chapel Hill-Carborro City Bd. of Educ., 89 F.3d 174, 177 (4th Cir.

1996), cert. denied, 117 S. Ct. 949 (1997).

1.

The "threshold question" whether the behavior of the Parole Commission was sufficiently conscience-shocking as to implicate substantive due process protections at all is not at issue in this case, because

the State acted intentionally to deprive Hawkins of his liberty. If the

liberty interest that Hawkins asserts is a fundamental one protected by

the Due Process Clause, then its deliberate violation by the State,

unless narrowly tailored to serve a compelling interest, is an arbitrary

abuse of power sufficient to shock the judicial conscience. See County

of Sacramento, 118 S. Ct. at 1717-18. It need not have been the specific intent of the State to harm the individual, so long as the State

acted "with full appreciation" of the effect of its action. Id. at 1718

n.9. To state it more simply, the "fundamental rights" protected by

substantive due process are those "`implicit in the concept of ordered

liberty' such that `neither liberty nor justice would exist if they were

sacrificed.'" Glucksberg, 117 S. Ct. at 2268 (quoting Palko, 302 U.S.

at 325, 326, 58 S. Ct. at 152). What kind of society would this be

were we to condone any intentional infringement of fundamental

rights so defined?

2.

This case therefore turns on whether the liberty interest asserted by

Hawkins to prevent his reincarceration is a "fundamental" one.

Whether a fundamental liberty interest exists is of course a legal

determination, subject to de novo review. See Beverati v. Smith, 120

F.3d 500, 503 (4th Cir. 1997). The Supreme Court has required a

"careful description" of the asserted interest, Glucksberg, 117 S. Ct.

at 2268, recognizing its "reluctan[ce] to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended," Collins, 503

U.S. at 125, quoted in Glucksberg, 117 S. Ct. at 2267. Such a liberty

interest may be created by state law or by the Due Process Clause

 8
itself, see e.g., Washington v. Harper, 494 U.S. 210, 221-22 (1990)

("We have no doubt that, in addition to the liberty interest created by

the State's Policy, respondent possesses a significant liberty interest

in avoiding the unwanted administration of antipsychotic drugs under

the Due Process Clause of the Fourteenth Amendment."), but judicial

restraint requires us to "exercise the utmost care whenever we are

asked to break new ground in this field," Collins, 503 U.S. at 125.

a.

Luckily, Hawkins does not ask us to break new ground here: the

liberty interest that he asserts has already been recognized as a fundamental one, to which substantive due process protections attach, in

two Fourth Circuit opinions as well as by a number of our sister circuits. A parolee's interest in his continued liberty during good behavior is protected by the substantive due process right to the finality of

his sentence. The Fourth Circuit has recognized this fundamental right

in two contexts, in the cases of United States v. Lundien, 769 F.2d

981 (4th Cir. 1985), and United States v. Cook, 890 F.2d 672 (4th Cir.

1989). Each of these cases advances the proposition that it is fundamentally unfair and violates the guarantee of due process for a court

to increase a sentence, even where correcting an unlawful sentence,

once the defendant has served so much of the original sentence that

"his expectations as to its finality have crystallized." Lundien, 769

F.2d at 987; Cook, 890 F.2d at 675.3

In Lundien, the district court initially sentenced the defendant to a

term of ten years on each of two counts, to be served concurrently,

but five days later amended the sentence by increasing it to twenty

years on one of the counts. See 769 F.2d at 982. The defendant challenged the amendment. After explaining that the Double Jeopardy

Clause did not address the situation, the Fourth Circuit observed that

it "seems more likely that any constitutional source for protection of

_________________________________________________________________

3 Lundien and Cook's recognition of a sentencing court's inherent

authority to correct an erroneous sentence has been superseded by Fed.

R. Crim P. 35(c), which "in effect codifies the result in [Cook and a similar Second Circuit case] but provides a more stringent time requirement."

Fed. R. Crim. P. 35 advisory committee notes, 1991 amendment.

 9
the defendant's interest in the finality of his sentence must be found

in the fifth amendment's guarantee of due process." Id. at 986.4

The Circuit observed that the exact parameters of the guarantee of

due process in this context were "not firmly fixed." Id. at 987. However, it set forth the following principle, which applies to Hawkins's

case as well:

[D]ue process may also be denied when a sentence is

enhanced after the defendant has served so much of his sentence that his expectations as to its finality have crystallized

and it would be fundamentally unfair to defeat them. As the

First Circuit has stated the principle:

[T]he power of a sentencing court to correct even

a statutorily invalid sentence must be subject to

some temporal limit. When a prisoner first commences to serve his sentence, especially if it

involves a long prison term as here, the prospect

of release on parole or otherwise may seem but a

dimly perceived, largely unreal hope. As the

months and years pass, however, the date of that

prospect must assume a real and psychologically

critical importance. The prisoner may be aided in

enduring his confinement and coping with the

prison regime by the knowledge that with good

behavior release on parole or release outright will

be achieved on a date certain. After a substantial

period of time, therefore, it might be fundamentally unfair, and thus violative of due process for

a court to alter even an illegal sentence in a way

which frustrates a prisoner's expectations by postponing his parole eligibility or release date far

beyond that originally set.

_________________________________________________________________

4 Although Lundien examined substantive due process protections

under the Fifth Amendment, the same analysis applies to the Fourteenth

Amendment, "given the Supreme Court's essentially identical interpretations of the concept [of "liberty"] under the two amendments."

Piechowicz v. United States, 885 F.2d 1207, 1214 n.9 (4th Cir. 1989).

 10
Id. (quoting Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978))

(emphasis added) (second alteration in original); see also United

States v. Smith, 115 F.3d 241, 248 (4th Cir.) (recognizing in passing

the rule of Lundien that due process may be denied if a sentence is

enhanced after a defendant's expectation of its finality has crystallized), cert. denied, 118 S. Ct. 315 (1997).

The expectation of finality of sentence that arises merely from

being given a parole date is much stronger in Hawkins's case, where

the defendant has actually been paroled, has no knowledge that his

parole was in error, has made the difficult transition from prisoner to

rehabilitated citizen, and has become a productive member of society.

Once the defendant has been released on parole and has successfully

reintegrated into society for a period of years, "his expectations as to

[the] finality [of his release on parole] have crystallized and it would

be fundamentally unfair to defeat them." Lundien, 769 F.2d at 987.

The question arises, how long does it take for such an expectation

to "crystallize?" In Lundien, the Fourth Circuit held that where the

defendant "had served only five days of an expected sentence of ten

years and he had not even reached his final prison destination," his

expectations had not sufficiently "crystallized." Id. Breest, on which

Lundien relied, held that 14 days was not long enough. See 579 F.2d

at 98-101. Hawkins, however, was on parole for almost two years.

Certainly his expectation of the finality of his parole determination

crystallized within that time.

The Fourth Circuit reaffirmed the principle announced in Lundien

in the case of United States v. Cook, 890 F.2d 672 (4th Cir. 1989).

There the Circuit recognized a court's inherent power to correct a

mistaken sentence. In doing so, it explained:

This inherent power is not without limitation, for at some

point every sentence must become final. As we indicated in

United States v. Lundien, 769 F.2d 981 (4th Cir. 1985), it

would be fundamentally unfair and a violation of due process to allow a district court to enhance a sentence "after the

defendant has served so much of his sentence that his expectations as to its finality have crystallized."

 11
Id. at 675 (quoting Lundien, 769 F.2d at 987) (part of citation omitted). The Circuit therefore held that the power to correct "an acknowledged and obvious mistake" in sentencing "exists only during that

period of time in which either party may file a notice of appeal. After

that time, we believe that the sentence has become final, and the district court lacks any authority to modify it." Id. If the Due Process

Clause limits a court's power to correct a mistake in sentencing to

only the 30 days in which an appeal may be taken, because after 30

days an inmate's interest in the finality of his sentence has crystallized, then clearly the Parole Commission may not correct a mistake

in its parole calculations two years after the defendant has been

released without violating the same guarantee of due process.

Other Circuits and district courts have held that in certain circumstances it would be inconsistent with the fundamental principles of

liberty and justice protected by the Due Process Clause to allow a

state to reincarcerate an erroneously released prisoner after he has

made a good adjustment to society. See, e.g., DeWitt v. Ventetoulo,

6 F.3d 32, 34-35 (1st Cir. 1993); Johnson v. Williford, 682 F.2d 868,

873 (9th Cir. 1982); United States v. Merritt, 478 F. Supp. 804, 807-

08 (D.D.C. 1979); Lanier v. Williams, 361 F. Supp. 944, 947

(E.D.N.C. 1973). An instructive example is offered by the case of

DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir. 1993).

DeWitt had been sentenced to life imprisonment after conviction of

a particularly evil assault with intent to murder. While serving his

sentence, DeWitt came to the aid of a prison guard who was being

attacked by an inmate and later testified for the state in the prosecution of the inmate. In recognition of these efforts, the trial court suspended all but 15 years of DeWitt's life sentence. See id. at 33.

Two years later, the state supreme court held in a separate case that

a trial court could not suspend such a sentence once a defendant had

begun to serve it. Nevertheless, the state made no effort to undo the

suspension of DeWitt's sentence. Six years after his sentence had

been partially suspended, DeWitt was granted parole and released

from prison. Had DeWitt's sentence not been suspended, he would

not have been eligible for parole for another 16 months. See id.

After his parole, DeWitt obtained work and reestablished contact

with his family. However, eight months after his release he was

 12
involved in an altercation for which he was arrested. Instead of seeking to revoke his parole, the state vacated its earlier order that had

suspended in part his life sentence. DeWitt was recommitted to serve

the remainder of the term of life imprisonment. See id.

Reserving the question whether DeWitt had violated the conditions

of his parole, the First Circuit held that due process notions of fundamental fairness prohibited the state from reimposing DeWitt's original life term. See id. at 35-36. Citing the Fourth Circuit's decision in

Lundien, the First Circuit explained that only in extreme cases would

a court's correction of an earlier mistake in sentencing be "so unfair

that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause." Id. at 35. Without establishing any specific tests, the First Circuit proposed certain factors to

which consideration should be given:

to the lapse of time between the mistake and the attempted

increase in the sentence, to whether or not the defendant

contributed to the mistake and the reasonableness of his

intervening expectations, to the prejudice worked by a later

change, and to the diligence exercised by the state in seeking the change.

Id.

In finding that DeWitt's rearrest was fundamentally unfair, the

First Circuit stressed that the state with due diligence could have challenged the suspension of his sentence far sooner than it did. See id.

It also noted that DeWitt not only was led reasonably to believe that

his sentence had been reduced for a number of years while in prison,

but he was actually released, set down new roots in society, got a job

and reestablished family ties. See id. Finally, the First Circuit noted

that the state's interest in rearresting DeWitt and correcting its earlier

mistake was weak: it seemed to be an attempt to avoid granting

DeWitt the full hearing necessary to revoke his parole. See id. at 35-

36.

The First Circuit's opinion in DeWitt supports our conclusion in

Hawkins's case. In explaining that its rule was a narrow one, the First

Circuit described the numerous cases which have allowed a sentence

 13
to be increased after it was initially imposed in error. Each of these

cases was distinguished from DeWitt's:

In virtually all [such cases] that we have discovered, there

has been some distinguishing circumstance that separates

that case from DeWitt's, for example, because (as is often

true) the defendant was still in prison, or the interval

between the original sentence and its correction was brief,

or because the defendant almost certainly knew or should

have known that an error had been made.

Id. at 36. None of those circumstances distinguish DeWitt's case from

Hawkins's, however: Hawkins was released from prison, the interval

between his release and its correction was almost two years, and he

did not know that his parole eligibility determination was erroneous.

The First Circuit in DeWitt followed the statement in Lundien "that

due process must in principle impose an outer limit on the ability to

correct a sentence after the event." Id. We do the same.

b.

The State seeks to avoid the principle of Lundien and Cook on

three grounds. First, the State attempts to distinguish the two cases by

arguing that, unlike Lundien and Cook, Hawkins's sentence was not

"enhanced" by the Parole Commission. That in those cases a mistaken

sentence was increased, whereas in Hawkins's case his erroneously

granted parole was revoked, is a distinction without a difference. In

the case where a sentence being served is increased, making the

parole date farther away, the inmate's reasonable and significant

expectation of future liberty has been frustrated, implicating the protection of the Due Process Clause. The frustration is the same, if not

magnified, where, the parole date having passed and the inmate having been released, parole is unexpectedly revoked and the inmate is

returned to prison, without any fault of his own, to continue serving

a sentence. In both cases the inmate has an interest in the finality of

the sentence imposed upon him by the state, including his date of eligibility for parole. See Lundien, 769 F.2d at 987. Once that interest

crystallizes, the substantive guarantees of the Due Process Clause prevent the state from infringing it.

 14
Second, the State tries to distinguish Lundien and Cook by arguing

that Hawkins had no "reasonable expectation" of remaining on parole

release because he had been "on notice at least since 1982 he had to

serve 30 years before [he would be] eligible for parole." See Green

v. Christiansen, 732 F.2d 1397, 1399 (9th Cir. 1984) (refusing to

estop the government from reincarcerating an erroneously released

prisoner who had not been so misled as to form a reasonable expectation of release, and who was therefore charged with constructive

knowledge that he still had time to serve). This is the State's key

argument: that Hawkins knew from letters he received from the parole

commission that he had at least 30 more years to serve before he

would be eligible for parole, and therefore he had actual or constructive notice that his parole was in error. The State repeats this argument, almost word-for-word, no fewer than fourteen separate times in

its brief.

Despite the State's insistent repetition, the argument is meritless.

The State misrepresents the record when it claims that Hawkins was

"advised at the beginning of his sentence in 1982 and again in 1983

that he would not be eligible for parole until he served more than 30

years of his sentence." In fact, the letters to which the State refers

contradicted each other, setting parole eligibility dates that were eight

years apart. Throughout his sentence, Hawkins was notified of as

many as four different dates on which he would be eligible for parole.

First, there is evidence that he was told that he would be eligible for

parole quite shortly after his imprisonment; second, the Parole Commission sent a letter to correct that earlier information, explaining that

they were now "sure," after "stud[ying] all the facts" in his case, that

he would be eligible for parole in 2010; third, he was told that after

"carefully checking," the Parole Commission found he would not be

eligible for parole until 2018; and fourth he was told the Parole Commission had decided after "careful investigation" that he was eligible

for parole (and was in fact paroled) in 1992. The Parole Commission

had repeatedly revised its conclusion about when he would be eligible

for parole, and three times those conflicting revisions were accompanied by assurances that, this time, the Commission had been "careful[ ]" and was "sure." When Hawkins received the fourth revision,

indicating that he was in fact eligible for parole, he had no reason to

believe that any of the earlier notices were more accurate.

 15
From Hawkins's perspective, the earlier parole eligibility calculations were superseded by the latest one. And the fact that he was

actually paroled confirmed to him that the most recent letter was

accurate. Finally, after almost two years on parole during which he

was supervised by a North Carolina state-government parole officer,

he must reasonably have had every confidence that he had put his

days in prison behind him.

It is important to note that while the State argues that Hawkins had

notice that his parole was in error, it does not claim that he had actual

knowledge of the error. Hawkins stated in his affidavit: "I was not

aware at any time prior to [the date of parole] that I was not eligible

for parole when I was, in fact, paroled, nor was I aware that the parole

commission made a mistake when paroling me until my arrest in

March, 1994." The State does not contest this assertion. The petitioner's lack of actual knowledge that his release was in error is what distinguishes Hawkins's case from cases such as Camper v. Norris, 36

F.3d 782, 784-85 (8th Cir. 1994) (finding no due process violation

where the defendant knew his continued release was in error), and

United States v. Martinez, 837 F.2d 861, 864-65 (9th Cir. 1988)

(holding that incarceration after a delay of many years did not violate

the due process guarantees of the Fifth Amendment where the defendant knew that a mistake had been made).

However, the State maintains that Hawkins should be presumed to

have known that he was ineligible for parole. After all, it is a truism

that all citizens are presumed to know the law. See, e.g., Jacobson v.

United States, 503 U.S. 540, 550 (1992); United States v. AquinoChacon, 109 F.3d 936, 938 (4th Cir.), cert. denied, 118 S. Ct. 335

(1997). Given this presumption, the State argues that "[n]o person

obtains a right to incorrect application of a statute," citing Lustgarden

v. Gunter, 779 F. Supp. 500, 506 (D. Colo. 1991), aff'd, 966 F.2d 552

(10th Cir. 1992). If the State's argument is correct, then a defendant

cannot have a fundamental liberty interest in the finality of a sentence

that is contrary to law.

But both Lundien and Cook foreclose the argument in this context.

In Cook, the Fourth Circuit recognized that"at some point every

sentence must become final." 890 F.2d at 675 (emphasis added). We

affirmed that it would be "fundamentally unfair and a violation of due

 16
process to allow a district court to enhance a sentence" once it had

crystallized, even where the original sentence was the result of "an

acknowledged misinterpretation of the pertinent[sentencing] guidelines section." Id. We then applied that rule to a sentence that "was

not authorized by [the pertinent sentencing guidelines] section nor

based on a departure from the guidelines," in short, a "sentence [that]

was not a lawful one." Id. We made no contention that the defendant's interest in the finality of his unlawful sentence was illegitimate

because he should be presumed to know the law. By contrast, we held

that the district court had the power to correct the sentence only

"[b]ecause the time for the government to file a notice of appeal had

not expired," and the sentence had therefore not become "final." Id.

Lundien also explicitly rejected the argument that the Due Process

Clause does not afford an interest in a statutorily invalid sentence.

Those words, quoted above, bear repeating:

[T]he power of a sentencing court to correct even a

statutorily invalid sentence must be subject to some temporal limit. . . . After a substantial period of time, therefore, it

might be fundamentally unfair, and thus violative of due

process for a court to alter even an illegal sentence in a way

which frustrates a prisoner's expectations by postponing his

parole eligibility or release date far beyond that originally

set.

769 F.2d at 987 (quoting Breest, 579 F.2d at 101) (internal quotation

marks omitted) (alteration in original) (emphasis added).

The rule that all persons must be presumed to know the law certainly applies where an individual takes actions that violate the law,

but claims that he was ignorant of the law's proscription. That presumption is a reflection of the principle that ignorance of the law is

no excuse for its violation. But the presumption is inapposite in this

sentencing context -- here, the prisoner is entitled to expect that the

sentence that he is given will be final, and after a period of time his

expectation crystallizes. We do not require a prisoner independently

to analyze the sentencing guidelines and their interactions with the

parole eligibility rules to determine for himself whether the sentencing judge's or Parole Commission's decisions are correct. The tangle

 17
of repealed and amended, interdependent sentencing and probation

provisions in North Carolina has caused confusion for its Parole Commission and Attorney General before, see generally Glenn v. Johnson,

761 F.2d 192 (4th Cir. 1985), and we very much doubt that Hawkins,

without any legal training, could be expected to untangle them.

The State's third attempt to avoid the rule of Lundien and Cook is

by citing two cases, Glenn v. Johnson, 761 F.2d 192 (4th Cir. 1985),

and Crowley v. Landon, 780 F.2d 440 (4th Cir. 1985), which, it

claims, stand for the proposition that "the state's interest in correctly

enforcing its laws can outweigh a prisoner's settled expectation of

continued release on erroneous parole." But these cases simply do not

address the due process claim made by Hawkins.

In Glenn v. Johnson, the Fourth Circuit addressed the proper interpretation of a North Carolina parole eligibility statute. The Parole

Commission believed that Glenn and other similarly situated prisoners would be eligible for parole after serving ten years of their sentence; the state Attorney General believed otherwise. See 761 F.2d at

193-94. A class of such prisoners litigated the issue, and the Fourth

Circuit concluded that the Parole Commission's interpretation was in

error. See id. at 194-95.

However, the opinion did not resolve whether the Due Process

Clause would be implicated if Glenn had been informed at first of the

earlier parole date and then, after his expectations of parole crystallized, told that the later date was correct. In fact, the Fourth Circuit

specifically declined to address "considerations of alleged due process

. . . infractions," explaining that "[t]hose questions, while fascinating,

need not long engage us" because the Circuit found that the statute

had "inescapabl[y]" prescribed the proper parole date all along. Id.

The State asserts that "Glenn stands for the proposition that the

Parole Commission has, and indeed must have, authority to correct

error in determining parole eligibility even when the correction upsets

a prisoner's settled expectation of earlier release." However, despite

the State's claim, there is no indication in the Glenn opinion that the

prisoner had been led to rely on, or even informed of, the erroneous,

early parole eligibility date and then later been told that another date

was correct. Because Glenn specifically declined to address any due

 18
process considerations it is not controlling in our case, and certainly

it cannot counter the rule of Lundien and Cook.

The State also relies upon Crowley v. Landon, in which the Fourth

Circuit addressed the case of three inmates whose sentences had been

suspended and who had been released on supervised probation by a

Virginia trial court. Following unfavorable publicity, the Virginia

attorney general petitioned the Supreme Court of Virginia for a writ

to bar the inmate's release. Eventually, the Supreme Court of Virginia

reversed the trial court and vacated the release orders. The inmates

voluntarily surrendered and were reincarcerated. See 780 F.2d at 442.

The inmates petitioned for habeas corpus relief from their reincarceration. Although their situation posed similar due process concerns

as does Hawkins's case, the Crowley petitioners did not argue that

reincarceration violated their substantive due process rights. Rather,

they made only the following four arguments:

The petitioners' habeas petition attacks their reincarceration

on the grounds that: 1) it deprived them of equal protection

under the fourteenth amendment of the United States Constitution [because other released prisoners were not reincarcerated]; 2) they have a due process right to good time credit

towards parole for the time spent on probation; 3) their reincarceration violated the constitutional protection against ex

post facto laws; and, 4) their reincarceration subjected them

to cruel and unusual punishment.

Id.

The Fourth Circuit denied each of these four asserted bases for

habeas relief.5 The State is wrong, therefore, when it asserts that

_________________________________________________________________

5 The closest Crowley came to addressing whether an erroneously

released defendant had any protections against rearrest was when it cited

United States v. Merritt, 478 F. Supp. 804, 807 (D.D.C. 1979), in a footnote to the portion of the opinion denying good time credit toward parole

for the months the petitioners had spent on release. See 780 F.2d at 444

n.6. The Fourth Circuit explicitly declined to decide whether to adopt

 19
"Crowley stands for the proposition that the state may reincarcerate

one group of prisoners who were erroneously released while choosing

not to pursue others without violating due process or equal protection." The court in Crowley was not presented with and did not

answer the due process question posed in our case.

In sum, Fourth Circuit law provides that after an inmate is sentenced, his reasonable expectation of future release on a specific date

crystallizes over time. Once crystallized, that reasonable expectation

of freedom is a legitimate liberty interest protected by the Due Process Clause. When Hawkins was released on parole and reintegrated

himself into the community, he reasonably expected to continue to

live as a free citizen so long as he obeyed the conditions of his parole.

During the two years in which he was on parole without violation,

that interest crystallized. When the state rearrested Hawkins to correct

its two-year-old error, it violated his right to due process of law.6

_________________________________________________________________

Merritt's conclusion that three factors would have to be present to warrant habeas relief:

The erroneous release must not have been attributable to the petitioner, the action of the authorities must have amounted to more

than simple neglect, and reincarceration must be unequivocally

inconsistent with fundamental principles of liberty and justice.

Id. The Fourth Circuit merely noted that the Crowley petitioners' case

fell "far short" of meeting Merritt's requirements. Id. In Merritt, the petitioner had been released on parole for nearly three years before his rearrest on an outstanding detainer, and he had previously unsuccessfully

sought to clarify the status of the detainer; in Crowley, the three petitioners had been out of prison for only seven, six and two months, during

which their release orders were being challenged.

6 It may be argued that Hawkins has not been injured, but rather has

received a windfall by his release: after all, if he had been asked up-front

whether he would prefer to serve his full sentence uninterrupted or to

serve it with a two year period of release in the middle, he would likely

have chosen the latter. But it is unjust for the government to parole an

inmate and allow him to believe that he may begin his life anew, and

then after he has proven himself rehabilitated by holding down a job,

reestablishing family ties and integrating successfully in the community

for two years, to rearrest him and claim the parole was in error. Hawkins

 20
3.

It remains only strictly to scrutinize the State's actions to determine

whether its violation of Hawkins's substantive due process right was

narrowly tailored to serve a compelling interest. The State has a broad

interest in the effective enforcement of its laws, including the correction of its legal errors, so as to guarantee to its citizens a predictable

and consistent governance. The State also has an interest in reincarcerating an erroneously released inmate to serve the entirety of his sentence as originally imposed for specific and general deterrent,

retributive and rehabilitative reasons. See N.C. Gen. Stat. § 15A1340.12 ("The primary purposes of sentencing a person convicted of

a crime are to impose a punishment commensurate with the injury the

offense has caused, taking into account factors that may diminish or

increase the offender's culpability; to protect the public by restraining

offenders; to assist the offender toward rehabilitation and restoration

to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.").

These interests are significantly weakened in Hawkins's case, and

his rearrest is not narrowly tailored to serve them. It is far too late for

the sentencing provision to be effectively enforced so as to provide

a consistent rule of law. The State's interest would have been better

served by a competent determination of when Hawkins would be eligible for parole in the first place. The Parole Commission's

continually-shifting-yet-continually-confident determinations are not

at all well-tailored to the effective enforcement of sentencing provisions.

If there were an allegation that the State had an interest in reincarcerating Hawkins to protect the public safety because Hawkins had not

been rehabilitated, that interest would certainly be compelling and

_________________________________________________________________

is deeply injured by the fracturing of the family ties he has striven to

reestablish, by the interruption of the career he has begun, and by the

destruction of the new life he has made for himself, all in reliance, for

two years, on the Parole Commission's determination. "Even convicted

criminals are entitled to be treated by their government in a fair and

straightforward manner." Johnson, 682 F.2d at 872.

 21
reincarceration at this late date might be narrowly tailored to remedy

the continuing threat to the public. But the State does not assert such

an interest, conceding Hawkins's good behavior for the two years he

was on parole. The Parole Commission exercised its discretion to

parole Hawkins in 1992, noting that he had "made some effort to

improve his situation while in prison, via a college degree" and opining that "the best interests of the public and of the inmate will be

served by his release under supervision at this time." Since his release

he has successfully reintegrated into the community and substantially

complied with all parole obligations, vindicating the Parole Commission's judgment that he was a good candidate for parole. There is no

evidence nor claim that Hawkins poses any future danger to the community.

The State's interest in general deterrence will not be significantly

undermined if Hawkins is allowed to remain on parole. It is inconceivable that any individual who knows that the law proscribes his

conduct and that it establishes a particular penalty for violation will

be less deterred from breaking the law because he believes that if he

is caught, convicted and sentenced the Parole Commission may erroneously parole him too early, and thereafter he will not be rearrested.

The rearrest of Hawkins is not narrowly tailored to serve any real

interest in general or specific deterrence.

The State's interest in retribution is similarly weak. Hawkins long

ago completed his sentences for the crimes that underlay his adjudication as a habitual felon. And the statute that prohibited Hawkins's

parole until he had served 75% of his sentence, N.C. Gen. Stat. § 14-

7.6, has long since been repealed. Only four months after Hawkins's

sentencing, it was replaced with a requirement that such a habitual

offender serve at least seven years of his sentence; 7 Hawkins served

about eleven years before his parole, and has served four more since

his rearrest. His punishment has been more than"commensurate with

the injury . . . caused" by his sale and delivery of the half gram of

cocaine. Whatever interest the State still has in seeing him punished

further is overwhelmed by his crystallized interest in the finality of

his parole.

_________________________________________________________________

7 That provision, too, has since been replaced.

 22
In fact the State's interest in the rehabilitation of this prisoner is

likely to be substantially harmed by his reincarceration for another

two decades of imprisonment. He has demonstrated that he can function as a law-abiding and productive member of society. If he is

returned to parole, he will still be governed by the threat of reinternment should he violate any parole requirements. But this long reincarceration will likely not improve a rehabilitation that has already been

achieved, and may in fact only discourage and embitter him, by teaching that the government cannot be relied upon to treat its citizens

fairly.

In sum, North Carolina's two-year-old recognition of its error

comes too late. The State's violation of Hawkins's rights guaranteed

by the substantive component of the Due Process Clause cannot survive strict scrutiny.

III.

Other courts have examined the due process interests at stake in

regards to an erroneously released inmate through the doctrines of

estoppel, see, e.g., Green, 732 F.2d at 1397 (refusing to estop the government from rearresting an inmate with constructive knowledge that

his release was mistaken); Johnson, 682 F.2d at 871-73 (estopping the

government from rearresting an erroneously paroled inmate), of

waiver, see, e.g., Camper, 36 F.3d at 784 (finding no waiver where

the state's actions were mere negligence, not an affirmative wrong,

and where the defendant knew his continued release was in error);

Lanier, 361 F. Supp. at 947 (holding that the state had waived its right

to rearrest the petitioner where it had led him, through no fault of his

own, to believe that he was free of a prison sentence and made no

attempt for a number of years to reacquire custody over him), and of

the prohibition against the imposition of sentences in installments,

see, e.g., Merritt, 478 F. Supp. at 806-08 & n.6 (recognizing "the

principle that a prisoner is protected by due process from being

required to serve his sentence in installments," and holding that the

state's rearrest of an erroneously released prisoner would be inconsistent with fundamental principles of liberty and justice). Hawkins

argues that he is entitled to habeas corpus relief on these alternative

grounds. Because we find that the substantive guarantees of the Due

 23
Process Clause have been violated directly, we do not address the

issues of estoppel, waiver or the prohibition of installment sentences.

Hawkins further argues that his reincarceration violated his right to

procedural due process because he was not allowed at his parolerevocation hearing to introduce evidence about his"difficult but successful adjustment to civilian life during his time on parole." But

Hawkins did have an opportunity, albeit a limited one, to make these

arguments at his parole revocation hearing. In any case, to the extent

that the argument is not about the process afforded to him, but about

the substantive basis of the State's decision to revoke his parole, it is

a concern of substantive due process discussed above. To the extent

that Hawkins argues that Morrissey v. Brewer, 408 U.S. 471 (1972),

requires additional procedural protections when the State wishes to

revoke erroneously granted parole, the argument is barred by Teague

v. Lane's prohibition against the creation of new procedural rules on

habeas corpus review, 489 U.S. 288, 310, 319 (1989).8

IV.

The substantive component of the Fourteenth Amendment's Due

Process Clause includes a right to the finality of a criminal sentence,

once that sentence has crystallized, as described by the Fourth Circuit

in Lundien and Cook. Where a parolee is unaware that his parole has

been granted erroneously, and reasonably so, and where he successfully reintegrates himself into the community and substantially complies with all of his parole obligations for two years, his fundamental

liberty interest in the finality of the parole decision has crystallized.

By intentionally depriving Hawkins of this fundamental liberty interest, the North Carolina Parole Commission abused its power to a

degree that shocks the conscience, violating Hawkins's right to sub-

_________________________________________________________________

8 The State's claim that all of Hawkins's arguments are new rules and

thus barred by Teague is meritless. The application of the substantive due

process holdings of Lundien and Cook to this new set of facts is not the

creation of a new rule. And Teague only prohibits the imposition of new

procedural rules on habeas, see Bousley v. United States, 118 S. Ct.

1604, 1610 (1998), of which category Hawkins's substantive due process

claim is not a member.

 24
stantive due process. The decision to the contrary of the district court

is, therefore,

REVERSED AND REMANDED WITH

INSTRUCTIONS TO GRANT THE PETITION.

PHILLIPS, Senior Circuit Judge, dissenting:

With all respect for the majority's understandable dismay at the

course of administrative bungling by state officials that this case

reveals, I do not believe that the state's re-incarceration of this petitioner constituted a violation of substantive due process entitling him

to the release from custody that he seeks. Accordingly, I dissent.

Courts now considering any claim of substantive due process violation must look for principal guidance to the Supreme Court's most

recent deliverances on the meaning and proper method of judicial

analysis of the concept in County of Sacramento v. Lewis, 118 S. Ct.

1708 (1998), and Washington v. Glucksberg, 117 S. Ct. 2258 and

2302 (1997). Though those decisions evoked a multiplicity of opinions that reflect lingering disagreements within Court majorities on

the proper methodology for assessing such claims--particularly those

involving executive action--I take them to establish or reaffirm for

our purposes the following propositions.

1. At the outset, they remind that, as a general proposition, we

must be "`reluctant to expand the concept of substantive due process

because guideposts for responsible decision-making in this uncharted

area are scarce and open-ended,'" Glucksberg, 117 S. Ct. at 2267

(quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)), which

means that we, like the Supreme Court, must "`exercise the utmost

care whenever we are asked to break new ground in this field,

[Collins, 503 U.S. at 125], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of

[judges], [Moore v. City of East Cleveland, 431 U.S. 494, 502

(1977)]." Glucksberg, 117 S. Ct. at 2268; see also Lewis, 118 S. Ct.

at 1714 (noting traditional reluctance of Court to expand concept).

2. Where, as here, the claimed violation is by executive action

 25
rather than by legislative enactment, judicial analysis should consider

as a "threshold question" whether the executive action was so "egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Lewis, 118 S. Ct. at 1717 n.8. If it does not, the

claim fails on that account. If it does, inquiry must turn to whether the

claimed right, if not an enumerated one, is entitled, on the basis of

precedent or of historical protections afforded it, to judicial recognition as a substantive due process right to be free of such executive

action. See id.1

_________________________________________________________________

1 This is the position taken in Justice Souter's opinion for the Court in

Lewis, in which he was joined by Chief Justice Rehnquist and Justices

O'Connor, Kennedy, Ginsburg and Breyer. Lewis thus clearly holds both

that the "shocks-the-conscience" test has continued vitality in actions

challenging executive acts on substantive due process grounds and that

in those it should be applied as a "threshold" test. What is not perfectly

clear, however, is the extent to which this threshold test is to be applied

independently of any consideration of what relevant history, tradition and

precedent may have to say about the asserted right and its protection.

Justice Souter's opinion for the Court seems in the main to posit a completely independent threshold inquiry that focuses solely on the actor's

culpability, and would turn to history, tradition and precedent only after

the conduct had been found conscience-shocking, and then only to determine whether history, tradition and precedent demonstrated that the right

asserted was one entitled to substantive due process protection. See

Lewis, 118 S. Ct. at 1717 n.8. Responding, however, to Justice Scalia's

objection to any continued use of a shocks-the-conscience test rather than

relying solely on precedent and historical protections to assess substantive due process claims, Justice Souter allowed that whether particular

conduct was conscience-shocking "may be informed by a history of liberty protection, but would necessarily reflect[ ] an understanding of traditional executive behavior, of contemporary practice, and of the standard

of blame applied to them." Id.

Further on the point, Justice Kennedy, specially concurring and joined

by Justice O'Connor, after expressing general skepticism about the

"shocks-the-conscience" test, indicated that he thought it could not serve

as a wholly independent test but only as the beginning point in a process

that must take into account history, tradition and precedent in assessing

the "objective character" of the challenged act. Id. at 1722 (Kennedy, J.

concurring). Though Justice Souter's opinion seemed not to require this,

Justice Kennedy thought that the "reasons" given for its "not-shocking"

 26
3. If inquiry is required (or undertaken) as to whether the right

asserted is entitled to recognition as one of substantive due process,

the question is whether it is one of "those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history

and tradition.'" Glucksberg, 117 S. Ct. at 2268 (quoting Moore, 431

U.S. at 503), being so "`implicit in the concept of ordered liberty' . . .

that `neither liberty nor justice would exist if they were sacrificed.'"

Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)).

And to answer that question requires a "`careful description' of the

asserted fundamental liberty interest." Id. (quoting Reno v. Flores,

507 U.S. 292, 302 (1993)).

This prescribed methodology, avowedly designed in its threshold

"shocks-the-conscience" inquiry to guard against "demot[ing]" the

Constitution to a "font of tort law," Lewis, 118 S. Ct. at 1717 n.8, and,

in its "fundamental-liberty-interest" inquiry, to "rein in the subjective

elements that are necessarily present in due-process judicial review,"

Glucksberg, 117 S. Ct. at 2268, is a most stringent one. Though it

builds on previous substantive due process jurisprudence, it seems to

me clearly to tighten the doctrinal screws by "defining-up" both the

level of executive culpability sufficiently "egregious" to "shock the

contemporary conscience" and the level of specificity at which

asserted substantive due process rights are to be sought in history,

precedent and tradition.

Applying that tightened methodology here, I do not believe the

challenged conduct can be declared to violate any substantive due

process right asserted by this petitioner. First off, I do not believe the

conduct qualifies as a conscience-shocker in the required sense.

The core of the concept of due process--procedural and

substantive--is protection against "arbitrary action of government,"

_________________________________________________________________

conclusion indicated that history, tradition and precedent had been sufficiently taken into account to meet his concern. Id.

From all this, I assume that courts seeking faithfully to apply the Lewis

methodology in executive act cases properly may look to history for

whatever it may reveal about customary executive practices and judicial

responses in comparable situations by way of establishing context for

their assessments of the conduct at issue.

 27
Lewis, 118 S. Ct. at 1716 (quoting Wolff v. McDonnell, 418 U.S. 539,

558 (1974)), and "only the most egregious official conduct can be

said to be `arbitrary in the constitutional sense.'" Id. (quoting Collins,

503 U.S. at 129). The "shocks the conscience" test is aimed at identifying executive conduct of that degree of culpability and therefore

appropriately poses the first, antecedent, question about any claim

that particular conduct violated a substantive due process right.

The test is concededly a most imprecise one, being"no calibrated

yard stick," id. at 1717, and "laden with subjective assessments," id.

at 1722 (Kennedy, J. concurring). But it surely gets at what has to be

determined--whether government conduct has been simply "arbitrary," without reason. And, some judicial guidelines have emerged

to flesh out and put at least minimum bounds on the degree of culpability it seeks to capture.

Simple negligence never can suffice to make executive conduct

conscience-shocking in the required sense, no matter what the right

infringed or the injury inflicted. Id. at 1718 (citing Davidson v.

Cannon, 474 U.S. 344, 347-48 (1986)). And while intended conduct

is that "most likely" to meet the test, even that alone will not suffice;

the conduct must be "intended to injure in some way unjustifiable by

any government interest." Id. (emphasis added). What the test seeks

to identify is conduct by executive officials which involves "abusing

[their] power, or employing it as an instrument of oppression."

Collins, 503 U.S. at 126 (quotation omitted). Finally, application of

this test "demands an exact analysis of circumstances," Lewis, 118

S. Ct. at 1718, because "`[t]hat which may, in one setting, constitute

a denial of fundamental fairness, shocking to the universal sense of

justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.'" Id. at 1719 (quoting Betts v.

Brady, 316 U.S. 455, 462 (1942)).

As a first step in applying the test to the specific conduct at issue

here, we should take a look at how executive officials and courts generally may have responded to the problem of whether an erroneously

released prisoner should be reincarcerated. Though unlikely to demonstrate conclusively that the executive act we assess was or was not

"conscience-shocking," hence arbitrary in the constitutional sense, the

response of other officials and courts when confronted with generally

 28
comparable problems might provide helpful context for assessing its

culpability. See id. at 1717 n.8.

The first thing revealed by even a cursory look at the available

sources--judicial decisions2 and academic commentary--is that cases

involving government failures to take convicted criminals into custody and premature releases of prisoners are surprisingly widespread

and recurring in both the state and federal penal systems. See Gabriel

J. Chin, Getting Out of Jail Free: Sentence Credit for Periods of Mistaken Liberty, 45 Cath. U. L. Rev. 403 (1996) (collecting cases).3 The

erroneous release here was not, therefore, to start with so unique an

_________________________________________________________________

2 Which of course reveal only the tip of what surely is a much larger

set of instances, not all of which resulted in litigation.

3 As a raw indication of the extent of the phenomenon, this academic

commentary identifies over one hundred such cases, running back in

time to 1895. Broadly speaking, the cases involve one or the other of the

following factual scenarios. In "delayed incarceration cases," the relevant

governmental authority fails timely to take the convicted criminal into

custody. See, e.g., United States v. Martinez, 837 F.2d 861 (9th Cir.

1988) (seven and one-half-year delay in prisoner's incarceration). In "detainer cases," a prisoner is either released from the custody of one jurisdiction notwithstanding the fact that a valid detainer has been lodged by

a second jurisdiction, see, e.g., Farley v. Nelson, 469 F. Supp. 796 (D.

Conn.) (defendant paroled by Maryland penitentiary and not taken into

federal custody notwithstanding fact that two federal detainers were on

file with the Maryland authorities), aff'd, 607 F.2d 995 (2d Cir. 1979),

or is released by one jurisdiction because a second jurisdiction to which

he owes time has failed to file a detainer. See, e.g., Shelton v. Ciccone,

578 F.2d 1241 (8th Cir. 1978) (defendant released from state custody

when a federal detainer should have been but was not lodged with state

authorities). Finally, there are "early release cases" where, as in the case

at hand, by some administrative error, a prisoner is prematurely released

or paroled. See, e.g., Johnson v. Williford, 682 F.2d 868 (9th Cir. 1982)

(prisoner who was convicted and sentenced under a federal statute

requiring a 10-year minimum sentence without possibility of parole was

erroneously paroled). Although these categories account for the great

bulk of the cases, not all of the cases fit neatly into them. See, e.g., Ex

Parte Bugg, 145 S.W. 831 (Mo. Ct. App. 1912) (prisoner intentionally

released from custody on a suspended sentence because of fear that he

was contracting tuberculosis and to allow him to"seek a change of climate").

 29
occurrence in overall penal system administration as by that fact alone

to suggest arbitrariness in the overall administrative process.

Next, it would appear that traditional and contemporary executive

practice once the error is discovered has been routinely to incarcerate,

rejecting any administrative claims of entitlement to freedom.4 Neither, therefore, was the decision to reincarcerate here, rejecting the

administrative claim, so much at odds with customary executive practice as to suggest arbitrariness on that account alone.

Looking past these general indications of the widespread extent of

the phenomenon and the traditional executive practice in dealing with

it to how the courts have dealt with it, we see several overlapping patterns that require differentiation for our purposes.

In one group of cases, challenges to reincarceration have been

made and decided in whole or part on non-constitutional theories of

"estoppel," see, e.g., Johnson v. Williford, 682 F.2d 868 (9th Cir.

1982) (alternative ground), or "improper installment sentence." See,

e.g., White v. Pearlman, 42 F.2d 788 (10th Cir. 1930); see generally

Dunne v. Keohane, 14 F.3d 335, 336-37 (7th Cir.) (Posner, C.J.) (noting that common law rule prohibiting government from"delay[ing]

the expiration of the sentence either by postponing[its] commencement . . . or by releasing the prisoner for a time and then reimprisoning him" is not a "constitutional command"), cert. denied, 511 U.S.

1149 (1994). Because decisions applying these common law theories

are not concerned with any threshold question of executive culpability, they have nothing to contribute on "the standard[ ] of blame,"

Lewis, 118 S. Ct. at 1717 n.8, to be used in applying the constitutional

shocks-the-conscience test. See id. at 1717-18 (noting critical differ-

_________________________________________________________________

4 This is inferred from the fact that the reported decisions overwhelmingly (perhaps exclusively) concern prisoner challenges to decisions to

incarcerate. While there obviously is less incentive for government to

challenge contested administrative decisions not to incarcerate, such

challenges must generally be possible under typical agency review procedures. See, e.g., In Re Hawley, 484 A.2d 684 (N.J. 1984) (holding that

the prosecutor has the right and authority to appeal a decision of the State

Parole Board); Mich. Comp. Laws Ann. § 791.234(7) ("The action of the

parole board . . . is appealable by . . . the prosecutor . . . .").

 30
ence between minimum constitutional and non-constitutional culpability levels).

In another overlapping category of cases, the prisoner has sought

as relief that he be given credit on his remaining sentence for the time

spent in erroneous release. See, e.g., Green v. Christiansen, 732 F.2d

1397 (9th Cir. 1984); United States v. Merritt, 478 F. Supp. 804

(D.D.C. 1979). These cases have no relevance to whether what was

done here violated the right asserted by this petitioner. He was given

credit against his remaining sentence for the time spent on erroneous

release, (see J.A. at 34), and his claim is for the more drastic remedy

of outright release to parole under the conditions erroneously granted.

When these two overlapping categories of cases are excluded as

possible sources of a shocks-the-conscience benchmark for claims

such as Hawkins's, only one category remains. It consists of cases in

which a convicted criminal has sought release (either outright or to an

erroneously granted parole) specifically on federal constitutional due

process grounds and the courts have decided the claims, up or down,

on that basis. Interestingly, almost all the cases decided on constitutional grounds have involved claims based on a unique subconstitutional theory of "waiver of jurisdiction." Usually traced to

Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967), it employs the fictive

notion that by prolonged failure to incarcerate a convict who "owes

it time," a government may be held to have "waived its jurisdiction"

to do so at some point in time and under certain circumstances, and

that to incarcerate thereafter without "jurisdiction" violates due process.5

_________________________________________________________________

5 Shields, finding antecedents of this theory (and a related one of "implied pardon") in a few earlier federal and state cases, adopted it as circuit law in a case in which a state had reincarcerated a prisoner 28 years

after it had released him in mid-sentence to another state and 18 years

after the latter state had paroled him in the absence of any detainer filing

by the first state. Six years later, the Fifth Circuit took the occasion in

Piper v. Estelle, 485 F.2d 245 (5th Cir. 1973), to cabin in Shields facially

broad rule that had seemed to rest principally on the prolonged period of

government inaction, emphasizing that "lack of eager pursuit" or "lack

of interest" is not enough, "[r]ather," Piper held, "the . . . action must be

so affirmatively wrong or [the] inaction so grossly negligent that it would

be unequivocally inconsistent with fundamental principles of liberty and

justice to require [that the sentence] be served . . . ." Id. at 246 (quotation

omitted). Piper's formulation of the "waiver" theory has been that ordinarily invoked by claimants and courts since that time.

 31
In the overwhelming majority of cases in which this special "due process" theory has been invoked, the claims have been rejected on their

widely varying facts.6 Only a handful of decisions have found due

process violations on this basis.7

Although these cases apply constitutional due process theory, they

do not provide a serviceable benchmark for applying the threshold

"conscience-shocking" test mandated by Lewis. None, of course, specifically applies that test as an "antecedent", independent inquiry into

government culpability. Most, as indicated, reject the due process

challenge on the facts. The few that uphold challenges are far too few

in the overall mix and too varied on their facts to provide any firm

legal norm for assessing the required culpability level under Lewis's

threshold test.

History and precedent thus inform our threshold inquiry with little

except that the administrative error that occasioned the challenged

decision is one too frequently made in penal systems administration

_________________________________________________________________

6 See Camper v. Norris, 36 F.3d 782 (8th Cir. 1994) (finding against

prisoner on the facts); Martinez, 837 F.2d 861 (same); Mobley v. Dugger,

823 F.2d 1495 (11th Cir. 1987) (same); Green, 732 F.2d 1397 (same);

Mathes v. Pierpont, 725 F.2d 77 (8th Cir. 1984) (same); Patterson v.

O'Dea, 1996 WL 554564 (6th Cir. Sept. 27, 1996) (unpublished) (same);

Hallums v. Hambrick, 1994 WL 279394 (6th Cir. June 21, 1994 (unpublished) (same), cert. denied, 513 U.S. 1169 (1995); Mistretta v. Whalen,

1993 WL 118074 (7th Cir. April 14, 1993) (unpublished) (same);

Christian v. Smith, 1991 WL 85227 (6th Cir. May 20, 1991) (unpublished) (same), cert. denied, 502 U.S. 915 (1991); Sterling v. Maggio,

505 F. Supp. 1111 (M.D. La. 1981) (same); Farley, 469 F. Supp. 796

(same); Bailey v. Ciccone, 420 F. Supp. 344 (W.D. Mo. 1976) (same);

Esquivel v. Estelle, 426 F. Supp. 619 (W.D. Tex. 1976) (same), aff'd,

547 F.2d 309 (5th Cir. 1977); Clifton v. Beto, 298 F. Supp. 1384 (S.D.

Tex. 1968) (same), aff'd on other grounds, 411 F.2d 1226 (5th Cir.

1969); United States v. Vann, 207 F. Supp. 108 (E.D.N.Y. 1962) (same);

United States v. Brandt, 1987 WL 16235 (N.D. Ill. Aug. 26, 1987)

(unpublished) (same).

7 See Shields, 370 F.2d 1003 (finding for prisoner on the facts);

Johnson, 682 F.2d 868 (same); Lanier v. Williams, 361 F. Supp. 944

(E.D.N.C. 1973) (same); Shelton, 578 F.2d 1241 (granting defendant evidentiary hearing on issue of waiver).

 32
to raise any presumption of arbitrariness "in the constitutional sense,"

Lewis, 118 S. Ct. at 1716 (quotation omitted), whenever it occurs, and

that the apparently routine executive practice when the error has been

discovered is to reincarcerate, no matter what the circumstances. Judicial decisions on challenges to such executive decisions provide no

firm legal norm or benchmark for applying the test. Most in fact have

upheld the executive decision to reincarcerate, finding no violation of

the claimed legal or constitutional right to remain free. Those that

have found violations--even the very few that have found violation

of constitutional due process right--have done so by analyses that did

not address as an independent, "antecedent," question whether the

challenged decision to reincarcerate was sufficiently "egregious" to be

"arbitrary in the constitutional sense." Id. at 1716 & 1717 n.8 (quotation omitted).

Here, therefore, the test must be applied simply by considering

without benefit of any helpful guidance from those external sources

whether the decision to reincarcerate was, within the threshold culpability test as most recently explained in Lewis , "shock[ing to] the contemporary conscience." Id. at 1717 n.8.

I do not think it possible to make that drastic judgment about this

decision. Consider the critical circumstances before the Parole Commission whose decision to revoke the erroneously granted parole is

the challenged executive act.

In 1981 Hawkins had been convicted in North Carolina

state court on a drug trafficking offense. Based on previous

1972 convictions in Georgia of rape and aggravated assault

with intent to commit rape and a 1976 conviction in Guilford County, North Carolina for armed robbery, he was sentenced as an habitual felon to 50 years imprisonment and to

a concurrent 10-year sentence on the drug trafficking

offense. See State v. Simmons, 286 S.E.2d 898, 900 (N.C.

Ct. App. 1982). At the time, he had an extensive record of

other arrests and convictions, some under the surname "Simmons," dating back to 1967. These included a 1967 conviction for larceny and receiving; a 1969 conviction for assault

on a female; a 1978 conviction for escape from work

release; a 1976 grand jury charge of second degree rape that

 33
was dismissed; and a 1975 Delaware charge of resisting

arrest that was nol prossed. (See J.A. 161-62; 203-4.) In

1992, after having served eleven years of his 50-year sentence, he had been erroneously paroled under a recently

enacted Community Service Parole program, designed in

part to alleviate prison overcrowding, for which he was not

in fact eligible. His overall prison record at the time had

been a good one, with only a few rule infractions, and during his imprisonment he had obtained a bachelors degree in

business management from Shaw University under a study

program. (See id. at 26, 200.)

His erroneous release in 1992 was based on a Parole Case

Analyst's recommendation that cited the amount of time he

had served, the prison overcrowding crisis, the fact that

none of Hawkins's prison rule infractions was assaultive,

the fact that he had made some effort to improve his situation while in prison, and the fact that he would be placed on

intensive supervision under the Community Service Parole

program. (See id. at 200.) The recommendation had, however, noted that there was "some concern" about releasing

Hawkins due to his "history of sexual assaultive behavior."

(Id.) That concern had been expressed for the record by a

Parole/Probation officer who indicated his strong opposition

to Hawkins'/Simmons' release based upon the officer's personal awareness of his criminal history and his expressed

opinion that he was a "career street criminal who will continue to commit street crimes once he is out of prison." (Id.

at 156.)

During the two-year period of his release, Hawkins had

lived with his brother and been continuously employed as an

unskilled laborer by a manufacturing company. (See id. at

22, 26.) He had worked regularly and with good job evaluations and had violated no laws during the period, but had

fallen behind in some of the community service obligations

and fee payments required by the program. (See id. at 20-24,

246.)

He was taken back into custody by order of the Parole

Commission when in 1994 it was realized that his release

 34
had not been authorized by law. (See id. at 34.) And, after

affording him a hearing with counsel at which his return to

parole status was urged on legal and humanitarian grounds,

(see id. at 29-30, 120-21), the Commission had formally

revoked his parole and ordered his reincarceration. (See id.

at 32, 34.)

To declare the Parole Commission's decision so "egregious and

outrageous" as to "shock the contemporary conscience" under these

circumstances, we would have to believe that it was infected or driven

by something much worse--more blameworthy--than mere negligence or lack of proper compassion or sense of fairness or than might

invoke common law principles of estoppel or fair criminal procedure

or the like to hold the state to its error. To keep things in constitutional proportion, we would have to see in it a mindless "abus[e of]

power," or a deliberate exercise of power "as an instrument of oppression," Collins, 503 U.S. at 126 (quotation omitted), or power exercised "without any reasonable justification in the service of a

legitimate governmental objective," Lewis, 118 S. Ct. at 1716.

I do not believe the Parole Commission's decision can be characterized as one meeting that stringent threshold constitutional test.

Nothing about it suggests any element of vindictiveness or of power

exercised simply to oppress. There were legitimate governmental

interests and objectives a-plenty to justify the act. It rectified an error

in administering applicable state parole law, thereby furthering the

state's fundamental interest in correct application of its laws. In doing

so, it avoided the precedential risk of acquiescing in irregular enforcement of state law. It reincarcerated under more secure custody a recognized high-risk prisoner erroneously released under a program

driven largely by exigencies of prison crowding unrelated to the public interest in security against the specific risk he posed.

While the Commission's conduct leading up to and including erroneous release on parole was bungling at every step, it could not at that

stage be characterized as anything but simple negligence. And, in the

end, that negligent course of conduct had nothing to do with revocation of the parole actually granted far in advance of the parole release

dates about which Hawkins was several times negligently misinformed. While the Commission's course of bungling is not a pretty

 35
picture, it has no real bearing upon the question whether revocation

of the completely unpredicted earlier parole was conscience-shocking.

Finally, while the revocation undoubtedly had harsh and regrettable

consequences for Hawkins's erroneously created expectations, it did

not, fortunately, interrupt any third party dependency relationship

established in the interim. And, though Hawkins had not engaged in

any criminal conduct during the period of his release under the "intensive supervision" of his parole, that surely could not be thought to

oblige the Commission to see in this a safely demonstrated rehabilitation from Hawkins's established pattern of assaultive behavior while

not in full custody. Certainly a declination to do so could not be

thought to demonstrate arbitrariness as opposed to reasoned judgment.

Because I do not believe that the Parole Commission's decision can

be declared "so egregious, so outrageous . . . [as] to shock the contemporary conscience", see Lewis, 118 S. Ct. at 1717 n.8, I would affirm

on that ground the district court's denial of the petition. So holding,

I would not reach the more fundamental issue that lies beyond:

whether the specific right asserted here even concerns a liberty interest so fundamental that it is protected by the substantive component

of the Due Process Clause. See id. (differentiating the issues).

Because a majority of the panel has, however, held that the conduct

was conscience-shocking, thereby raising the further issue, I address

it briefly and, with respect, again disagree with the majority.

My reasons can be given simply and briefly. Based upon the historical evidence earlier discussed, I do not believe the liberty interest

asserted here--that of remaining free on erroneously granted parole

so long as the parolee did not contribute to the error and has for an

appreciable time remained on good behavior to the point that his

expectations for continued release from incarceration have

"crystallized"8--is one that can be said to be "deeply rooted in this

_________________________________________________________________

8 This seems to me a fair and "careful description" of the "fundamental

liberty interest" asserted by petitioner in this litigation. See Glucksberg,

117 S. Ct. at 2268 (noting necessity for such a"description" in making

historical inquiry). A critical feature of the interest as asserted is its basis

in "crystallized" expectations created by the passage of time, (see Appellant's Br. at 11), surely an amorphous concept upon which to ground

constitutional right, particularly one as jealously guarded against subjective expansion as substantive due process.

 36
Nation's history and traditions." Glucksberg, 117 S. Ct. at 2268 (quoting Moore, 431 U.S. at 503)). Certainly it would seem impossible to

say of such an interest that it is one of those so"`implicit in the concept of ordered liberty,' . . . that `neither liberty nor justice would

exist if they were sacrificed.'" Id. (quoting Palko, 302 U.S. at 325,

326. What history and tradition seem to indicate in their best light for

petitioner is that claims of such a right have been routinely rejected

when made to executive branches of government, occasionally, but

not always, upheld by courts when advanced under common law theories such as estoppel, and almost always rejected by courts when

advanced on constitutional grounds. For that reason, I do not believe

that under current Supreme Court jurisprudence as most recently

explicated in Glucksberg, the interest asserted here could be considered one entitled to substantive due process protection.9

_________________________________________________________________

9 Hawkins's reliance on United States v. Lundien, 769 F.2d 981 (4th

Cir. 1985), cert. denied, 474 U.S. 1064 (1986), and United States v.

Cook, 890 F.2d 672 (4th Cir. 1989), as establishing circuit precedent for

the existence of such a right is misplaced. Those cases considered constitutional challenges to the power of courts to increase sentences after their

formal imposition. In both cases, the courts posited that at some point a

prisoner's crystallized expectations of the duration of his sentence as

imposed could give rise to a due process right to its finality, but both

found no such right to have arisen on the facts of the cases. See Lundien,

769 F.2d at 987; Cook, 890 F.2d at 675. Aside from the fact that the due

process assumptions made in those cases were dicta in view of their specific holdings, they could not be taken to apply even as persuasive dicta

in the quite different situation of the erroneously released prisoner that

we consider. Neither Lundien nor Cook undertook the rigorous historical

inquiry now mandated by Glucksberg into whether the specific right they

posited--that of sentence finality--was one sufficiently rooted in history

and tradition to be enforced as one of substantive due process. And had

that inquiry been undertaken, it would have been an entirely different

one, concerning a different subject than that required in this case.

Lundien and Cook therefore have nothing to say, either as precedent or

persuasive dicta, about whether the sufficiently different liberty interest

asserted by Hawkins is entitled by history and tradition to substantive

due process protection.

 37