SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4552-98T3
ABU MUHAMMAD,
Plaintiff-Appellant,
v.
KAREN BALICKI,
Defendant-Respondent.
______________________________________________________
Submitted January 4, 2000 - Decided January 19, 2000
Before Judges Pressler, Ciancia and Arnold.
On appeal from a Final Agency Action of the
New Jersey Department of Corrections.
Abu Muhammad, appellant pro se.
John J. Farmer, Jr., Attorney General, attorney
for respondent (Nancy Kaplen, Assistant Attorney
General, of counsel; Andrew R. Sapolnick, Deputy
Attorney General, on the brief).
The opinion of the court was delivered by
ARNOLD, J.S.C. (temporarily assigned)
Appellant Abu Muhammad is a prisoner in the custody of the New
Jersey Department of Corrections. He is incarcerated at Southern
State Correctional Facility in Delmont, New Jersey, serving a life
sentence pursuant to a 1976 conviction for first-degree murder.
On March 10, 1999, pursuant to N.J.S.A. 10A:9-3.5a, the
prison's Classification Committee reviewed appellant's
institutional record and denied him reduced custody status. On
March 24, 1999, the Committee denied his request for a "variance"
from the eligibility guidelines. Appellant contends on appeal that
the Classification Committee's decision denying him reduced custody
status must be reversed because he had been accorded the privilege
of reduced custody status pursuant to a prior prison regulation. He
contends that a new regulation denying him such reduced custody
status is an "ex post facto" regulation which should not apply to
him. We disagree and affirm the decision of the Classification
Committee.
Briefly, the material facts are as follows. In 1976,
appellant was convicted of first-degree murder and sentenced to a
life sentence. He attempted to escape from custody in September
1976. In 1983, he did escape from custody and was convicted of
escape. He was sentenced on the escape conviction to a five year
sentence consecutive to the life sentence.
Appellant contends, and respondent Chairperson of the
Classification Committee does not dispute, that in 1993 he was
placed on reduced custody status. We understand that reduced
custody status enables a prisoner to enjoy more mobility and less
supervision in the prison than the general prison population. In
1993 and until 1997, the relevant regulation, N.J.A.C. 10A:9-4.8(e)
provided as follows:
An inmate who presently is serving a sentence
for escape or attempted escape from any type
of correctional facility or setting and who
has a previous adult conviction for escape or
attempted escape from any type of correctional
facility or setting, is not eligible to be
considered for any type of reduced custody.
Appellant contends that he was not barred from enjoying
reduced custody status between 1993 and 1999 because he was not
then serving a sentence for escape as set forth in the regulation.
However, in 1
997 N.J.A.C. 10A:9-4.8(e) was amended to read as
follows:
An inmate who has two instances of escape or
attempted escape or a combination of either
through convictions or prohibited acts is not
eligible to be considered for any type of
reduced custody.
Pursuant to the amended regulation, appellant did not receive
reduced custody status in 1999. Significantly, defendant does not
allege the loss of any good-time credits accumulated as a result of
his reduced custody status between 1993 and 1999. However, he
contends that the amended regulation is "ex post facto" as applied
to him. He appeals the Classification Committee's decision denying
him such status and its denial of his request for a "variance"
pursuant to N.J.A.C. 10A:9-4.5(e) from the eligibility regulation,
N.J.A.C. 10A:9-4.8(e).
We hold that appellant has no liberty interest in being
classified in accordance with the earlier regulation. In Sandin v.
Conner,
515 U.S. 472,
115 S. Ct. 2293,
132 L. Ed.2d 418 (1995),
the United States Supreme Court held that a change in a prisoner's
conditions of confinement does not trigger the need for due process
safeguards unless the change imposes "atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life." Id. at 484, 115 S. Ct. at 2300, 132 L. Ed.
2d at 430.
New Jersey follows the Sandin test in circumstances involving a
change in custody status. See Blyther v. New Jersey Dep't of
Corrections,
322 N.J. Super. 56 (App. Div.), certif. denied, ___
N.J. ___ (1999); Lorusso v. Pinchak,
305 N.J. Super. 117 (App.
Div. 1997). The Sandin test applies to changes in prison
regulations. Cosco v. Uphoff,
195 F.3d 1221 (10th Cir. 1999).
While the "atypical and significant hardship" standard of Sandin
may be difficult to define, see, e.g. Sealey v. Giltner, ___F.3d
___ (2d Cir. 1999), it is clear to us that the loss of enjoyment of
greater mobility than that accorded to the general prison
population, less supervision and eligibility for more good-time
credits do not fall within that standard and do not implicate the
ex post facto clauses of the federal and state Constitutions. See
White v. Fauver,
219 N.J. Super. 170 (App. Div. 187) (finding no
constitutionally protected liberty interest in reduced custody
status). Furthermore, we find no abuse of discretion in the
Classification Committee's decision not to grant a "variance" from
the current regulation which specifically bars appellant from
enjoying reduced custody status.
The decision of the Classification Committee is affirmed.