No. 00-2388Commonwealth of Massachusetts Superior Court CIVIL ACTION. WORCESTER, SS.
April 13, 2001
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISSOR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
DANIEL F. TOOMEY, JUSTICE.
This case is before the court on the motion of defendants Superintendent Lynne Bissonette and Commissioner Michael T. Maloney of the Massachusetts Department of Correction (collectively, “Department”) for dismissal, or in the alternative, for summary judgment on the pro se petition of plaintiff Sandy Battista (“Battista”) for a writ of habeas corpus.
Battista asserts that, because the Department failed properly to calculate his release date by omitting to credit him with earned good time credits (“EGTs”) pursuant to G.L.c. 127, § 129D, and failed to offer a sufficient number of eligible programs, his period of incarceration has been unlawfully prolonged. Consequently, he maintains that he is entitled to immediate release from custody.
The Department responds that it has reviewed 17½ years of Battista’s records and that Battista has been awarded all of the EGTs to which he is entitled. In the motion at bar, the Department argues that it is entitled to judgment as a matter of law because there exists no legitimate factual dispute that Battista has received all of the good time credit that he has earned. Battista volleys back that, because he disputes the Departments figures, a genuine issue of material fact exists. For the following reasons, the Department’s motion for summary judgment isALLOWED.
BACKGROUND
Petitioner Sandy Battista is in the custody of the Massachusetts Department of Correction pursuant to a conviction for violation of G.L.c. 265, § 19 (Rape of a Child) for which he was sentenced, by the Worcester Superior Court on February 28, 1983, to 12 to 20 years at MCI Walpole. As a result of his participation in various eligible programs, Battista has been awarded 532 days of good time credit. Those credits operate to reduce his maximum discharge date to on or about June 28, 2001. Nevertheless, in support of his allegations, Battista has submitted a detailed account of the several hundred other EGT credits of which he asserts the Department has deprived him.
DISCUSSION
Summary judgment is appropriate where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991). In the case at bar, the court must determine whether the record demonstrates the existence of disputed issues of fact concerning the computation of the number of EGT credits to which Battista is entitled.
The Department’s records indicate that Battista has earned 532 EGT credits since his incarceration in 1983, including 162.5 days that had not been properly awarded before Battista filed this action. Battista maintains that, according to his records, he is entitled to an additional 634.5 days reflecting earned, but not yet credited, EGTs. Battista argues that, because he disputes the number of EGTs he had earned, the Department is not now entitled to judgment as a matter of law.
Battista’s claim of EGT credits is based on his contention that he is entitled to credit for 2½ days of EGT for each program in which he has participated since 1983 and for programs that ought to have been, but were not, available to him. The provisions of G.L.c. 127, § 129
are, however, fatal to his position.
There is no constitutional right to earned good time credits; at most, there is a right to be eligible to participate in available programs.Jackson v. Hogan, 388 Mass. 376, 379 (1983). General Laws c. 127, § 129, provides that the Department “may” grant up to two and one half days of EGT credits per month for satisfactory participation in a variety of programs that fall into one of three categories — employment, vocation/education and activities — to a maximum of seven and one half EGT credits per month. The fact that the Department may award 2 ½ credits in a month for a particular program does not, however, mean that the Department is required to award that number of EGTs. Although Battista disputes many of the credits he was awarded for programs from 1983 through 2000, he has submitted no records to demonstrate his participation in certain programs or to show that the Department offers more than the number of credits he was given for a particular program.
Although Battista claims that his dispute of Department records creates a genuine issue of material fact, his failure to comply with Department regulations undercuts his claim. Those regulations establish the procedure by which an aggrieved inmate may challenge the award of EGT deductions. Inmates regularly receive summary sheets from every institution listing the EGTs earned over a given time period. In order to challenge the accuracy of the deductions on the summary sheets, the inmate must submit a written request for reconsideration, within ten working days from the receipt of his summary sheet, to the Record Supervisor at the institution where the sheet was prepared. See 411 CMR § 10(6) (1995). There is no indication in the record that Battista complied with this regulation. Battista, although incarcerated since 1983, did not dispute the number of EGT credits he had been awarded until filing this action in November of 2000. His dilatoriness erodes the probative value of his submissions on the instant motion.
Battista also alleges that the Department’s application of 103 CMR 411.08
violates the ex post facto clause. See U.S. Const. Art. I, § 10, cl. 10. That assertion, however, must also fail. The ex post facto prohibition bars the Congress and the states from enacting any law “which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed.”Weaver v. Graham, 450 U.S. 24, 28 (1981). The ex post facto clause prohibits retroactive application of newly enacted legislation only if the legislation is more onerous. Piper v. Perrin, 560 F. Supp. 253, 258
(1983). The clause is not preclusive here because there has been no newly enacted legislation altering the commissioner’s discretion in awarding EGT credit. Battista could expect to earn up to 7 ½ days of EGT credit at the time of his commitment to the Department and has the same expectation at the present time.
Because Battista did not appeal the number of EGTs he had been awarded until November of 2000, because the Department has provided the Court with detailed records persuasively demonstrating the correctness of its award of EGTs for the disputed periods in question, and because Battista has submitted no records disputing the Department’s calculations other than his own conclusory assertions that he is entitled to additional credits, Battista has failed to demonstrate that a genuine issue of material fact remains in the present matter. The Department is therefore entitled to judgment as a matter of law.
ORDER
For the foregoing reasons, it is hereby ORDERED that the Department’s motion for summary judgment is ALLOWED.
___________________________ Daniel F. Toomey Justice of the Superior Court
DATED: April, 2001