John E. Walsh v. THOMAS R. CORCORAN, Warden; J. JOSEPH CURRAN, JR.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN E. WALSH,
Petitioner-Appellant,
v.
THOMAS R. CORCORAN, Warden; J.
JOSEPH CURRAN, JR.,
Respondents-Appellees,
and
No. 98-7853
PARRIS N. GLENDENING, Governor;
RICHARD A. LANHAM, SR.,
Commissioner; NORMA GLUCKSTERN,
Previous Director, Patuxent
Institution; PATUXENT BOARD OF
REVIEW, John/Jane Doe defendants,
Respondents.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-98-941-MJG)
Argued: January 24, 2000
Decided: March 29, 2000
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Paul Victor Jorgenson, Middletown, Maryland, for
Appellant. David Phelps Kennedy, Assistant Attorney General, Balti-
more, Maryland, for Appellees. ON BRIEF: J. Joseph Curran, Jr.,
Attorney General of Maryland, Baltimore, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
John Walsh, an inmate currently in the custody of Maryland's
Division of Correction (DOC), appeals the order of the district court
denying his petition for writ of habeas corpus. He claims that the
1977 revisions to Maryland's Patuxent statute violated the Ex Post
Facto Clause in two ways. First, he contends that the revisions
increased the measure of punishment for his crimes by transforming
his civil commitment at Maryland's Patuxent Institution (Patuxent),
a psychiatric treatment facility for Maryland inmates, into a punitive
incarceration. Second, he claims that the revisions violated the Ex
Post Facto Clause by eliminating his opportunity to gain early,
unconditional release from state custody once he had recovered suffi-
ciently from his status as a "defective delinquent" for the staff at
Patuxent to recommend that he be discharged. Finally, he asserts that
his transfer from Patuxent to the general prison population in the
DOC deprived him of a state-created liberty interest in remaining at
Patuxent and receiving its treatment programs that is protected by the
Due Process Clause. Because we find that the revisions actually
decreased the potential length of his confinement, and that the revi-
sions did not eliminate his opportunity to gain early release from state
custody during his years in confinement at Patuxent, we agree with
the district court that the 1977 revisions do not run afoul of the Ex
Post Facto Clause. Furthermore, because we find that Walsh's
2

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removal from Patuxent did not result in Walsh's experiencing a sig-
nificant and atypical hardship in relation to the ordinary incidents of
prison life, we agree with the district court that Walsh was not
deprived of a state-created liberty interest. Accordingly, we affirm the
district court's denial of Walsh's petition for a writ of habeas corpus.
I.
In 1970, John Walsh was convicted, upon entering a guilty plea, of
rape and kidnapping in Maryland state court and sentenced to a
seventy-two-year term of imprisonment. In 1971, he was committed
to Patuxent. Under Maryland law in effect before 1977, a prosecutor,
the DOC, or a previously sentenced defendant could file a request
with the sentencing court asking that the defendant be examined at
Patuxent, a mental institution, to determine whether he qualified for
admission to Patuxent as a "defective delinquent." See Md. Ann.
Code art. 31B § 6(b) (1971). Upon such a request, or upon its own
initiative, the sentencing court could order that a defendant be evalu-
ated by the Patuxent staff. See id.1 Under the former Patuxent statute,2
a "defective delinquent" was defined as:
an individual who, by the demonstration of persistent aggra-
vated antisocial or criminal behavior, evidences a propensity
toward criminal activity, and who is found to have either
such intellectual deficiency or emotional unbalance, or both,
as to clearly demonstrate an actual danger to society so as
to require such confinement and treatment, when appropri-
ate, as may make it reasonably safe for society to terminate
the confinement and treatment.
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1 Appellees do not dispute Walsh's assertion that his sentencing court
recommended, as part of a plea agreement, that he be evaluated by the
Patuxent staff. In any event, the question of who recommended that
Walsh be evaluated is irrelevant to the issues presented by this appeal.
2 This opinion refers to those provisions of Maryland law governing the
administration of Patuxent as the Patuxent statute. These provisions,
which have obviously changed in content over the years, were formerly
codified at Article 31B of the Annotated Code of Maryland (1957), but
are now located in the Correctional Services Article of the Annotated
Code of Maryland.
3

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Md. Ann. Code art. 31B § 5 (1971). If the staff concluded that the
defendant was a "defective delinquent," the sentencing court con-
ducted a trial on the issue of whether the defendant was a "defective
delinquent." If the court found that the defendant was a "defective delin-
quent,"3 the defendant was committed to Patuxent "for an indetermi-
nate period without either maximum or minimum limits" and his
original sentence was suspended. Md. Ann. Code art. 31B § 9(b)
(1971).
While at Patuxent, inmates received psychiatric treatment for the
mental affliction that made them "defective delinquents." Patuxent's
Institutional Board of Review (IBR)4 then reviewed the status of the
"delinquent" at least once every calendar year. See Md. Ann. Code
art. 31B § 13(b) (1971). Under the statute, the IBR could grant a leave
of absence or parole, if it found that parole was for the inmate's bene-
fit and the benefit of society, or recommend the inmate's uncondi-
tional release from custody as a "defective delinquent." See Md. Ann.
Code art. 31B §§ 13(d) and (f) (1971). Upon the IBR's recommenda-
tion that an inmate be unconditionally released from custody as a "de-
fective delinquent," the sentencing court not only possessed the
authority to order an unconditional release, but it could also order that
the inmate be paroled, granted a leave of absence, returned to Patux-
ent, or transferred to the DOC to serve out his original sentence. See
Md. Ann. Code art. 31B § 13(f) (1971). When the sentencing court
chose to reimpose the original sentence and transfer a defendant to the
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3 A defendant could request a jury trial on the issue of whether he was
a "defective delinquent." See Md. Ann. Code art. 31B § 8(c) (1971). In
that case, the jury, not the court, would decide the issue. See Md. Ann.
Code art. 31B, § 9(a) (1971).
4 The IBR's members included the director of Patuxent, the three asso-
ciate directors, a professor from the University of Maryland School of
Law who was a member of the advisory board of Patuxent, either of the
members of the Maryland bar who were members of Patuxent's advisory
board, and a sociologist. See Md. Ann. Code art. 31B § 12 (1971).
Although the positions from which the IBR draws its membership have
changed over the years -- for example, the IBR now includes the warden
of Patuxent and members of the public, but does not include a law pro-
fessor or a sociologist, see Md. Code Ann., Correctional Services § 4-
205 (1999) -- Walsh does not allege that this change in composition
resulted in any constitutional violation.
4

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DOC, the defendant was entitled to credit against that sentence for
time spent at Patuxent. See id.
Patuxent inmates were also allowed to petition a state court for
review of their status, beginning two years after their initial confine-
ment to the Institution but not before two-thirds of their sentence had
expired. See Md. Ann. Code art. 31B, § 10(a) (1971). The inmate was
brought before a court and permitted to request a jury, which would
determine whether he was still a "defective delinquent." See id. If
found to be a "defective delinquent," he was returned to Patuxent;
however, if the jury found that he was no longer a"defective delin-
quent," the court could release him unconditionally or commit him to
the DOC under his original sentence, with credit for time served at
Patuxent. See id.
In 1977, the Patuxent statute underwent major revisions in the
wake of criticism that inmates at Patuxent, who served indeterminate
sentences and were released only after they were no longer "defective
delinquents," often remained in confinement at Patuxent long after
their original sentences had expired. See Gluckstern v. Sutton, 574
A.2d 898, 901 (Md. 1990). In re-writing the statute, the state legisla-
ture provided that a Patuxent inmate's original sentence was no longer
suspended when he entered Patuxent; thus, when he served the length
of his original sentence, he was entitled to be released. See Md. Code
Ann., Correctional Services § 4-304(a) (1999). 5 Indeterminate sen-
tences for inmates at Patuxent were eliminated.
The legislature made other changes to the statute. Under the re-
written provisions, a person committed to Patuxent was not commit-
ted as a "defective delinquent," but as an"eligible person." An "eligi-
ble person" is defined as
an individual who, (i) has been convicted of a crime and is
serving a sentence of imprisonment with at least 3 years
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5 All citations to the post-1977 Patuxent statute are to the current
(1999) Annotated Code of Maryland. Although they have been recently
transplanted from former Article 31B to the Correctional Services Arti-
cle, the contents of the relevant sections have remained substantively
unchanged since 1977.
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remaining on the sentence; (ii) has an intellectual impair-
ment or emotional imbalance; (iii) is likely to respond favor-
ably to the programs and services that the Institution
provides; (iv) can better respond to remediation through
those programs and services than by other incarceration; and
(v) meets the eligibility criteria that the Secretary establishes
under § 4-208 of this title.
Md. Code Ann., Correctional Services § 4-101(e) (1999).6 No longer
did sentencing courts determine whether a defendant was a "defective
delinquent" upon receiving a recommendation from the staff of Patux-
ent. Instead, the Patuxent staff itself assumed complete control over
whom to admit as an "eligible person." See Md. Code Ann., Correc-
tional Services §§ 4-301, 302(b) (1999). The IBR continued to con-
duct annual reviews of the inmates, see Md. Code Ann., Correctional
Services § 4-302(d), and it retained the discretion to grant parole
when parole would not impose an unreasonable risk to society and
would aid in the remediation of an "eligible person." See Md. Code
Ann., Correctional Services § 4-305 (1999). As noted above, under
the old statute, Maryland courts could choose to release a Patuxent
inmate unconditionally upon the IBR's recommendation following its
annual review of the inmate. Under the revised statute, Maryland
courts retained their discretion to order an unconditional release upon
receiving a recommendation from the IBR. The IBR, however, could
not make a recommendation for unconditional release until after the
inmate had successfully served three years on parole without a viola-
tion. See Md. Code Ann., Correctional Services § 4-305(f). The revi-
sions also eliminated the ability of a prisoner at Patuxent to petition
a court to review his status following the expiration of two-thirds of
his original sentence. Finally, under the revised statute, the IBR could
determine that an inmate was no longer an "eligible person" and then
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6 The 1977 revisions did not include part (v) of the definition. Part (v)
refers to Md. Code Ann., Correctional Services § 4-208 (1999), which
allows the Secretary of Public Safety and Correctional Services to adopt
regulations to carry out the provisions of Title 4 of the Correctional Ser-
vices Article. Since 1977, there have also been some minor, non-
substantive, changes to the wording of the definition. Walsh does not
argue that these subsequent changes somehow enhanced the alleged con-
stitutional violations caused by the 1977 revisions.
6

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transfer a prisoner to the DOC without first petitioning the inmate's
sentencing court. See Md. Code Ann., Correctional Services §§ 4-
306(b)(2) and (b)(3) (1999).
The revised statute also included a transitional provision to reim-
pose the original sentences of inmates committed before July 1977.
Under the revised statute, Walsh's seventy-two-year sentence was
"reimposed as of the time it was originally entered, with credit for
time spent at the Institution." Md. Ann. Code of 1957, art. 31B
§ 16(b)(1) (1983). After reimposition of his sentence in 1977, Walsh
remained at Patuxent until September 28, 1990, when the IBR deter-
mined that he was no longer an "eligible person." Walsh was then
transferred to the DOC to serve out the remainder of his seventy-two-
year sentence.
In 1998, Walsh filed a petition for a writ of habeas corpus in the
United States District Court for the District of Maryland. Among
other grounds for relief not pertinent here, Walsh asserted that the
1977 legislative changes to the Patuxent statute violated the Ex Post
Facto Clause and denied him due process by depriving him of an
alleged liberty interest in remaining at Patuxent and receiving its
treatment programs.7 After the district court denied the petition and
denied Walsh's request for a certificate of appealability, we granted
a certificate of appealability on his ex post facto and due process
claims.
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7 In 1995, Walsh filed a habeas petition in which he raised the same
arguments contained in his 1998 petition. The district court dismissed the
petition without prejudice because Walsh had not raised a challenge to
the 1977 revisions in state post-conviction proceedings. When Walsh
refiled his petition in 1998, the state conceded that Walsh had exhausted
his available state remedies in state post-conviction proceedings, and the
district court proceeded to the merits of his claims.
In 1998, Walsh supplemented his petition with a claim against several
state officials, including the governor, for monetary damages under 42
U.S.C.A. § 1983 (West Supp. 1999) for wrongful imprisonment. Walsh
does not challenge the district court's dismissal of this claim.
7

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II.
Walsh argues that the 1977 revisions harmed him for purposes
of the Ex Post Facto Clause in two ways. 8 First, he claims that the
revisions increased the measure of punishment for his crimes by
transforming his civil commitment at Patuxent9 into a punitive incar-
ceration. Second, he argues that the revisions cost him his opportu-
nity, provided by the pre-1977 statute, for an unconditional release
from state custody once he had recovered sufficiently from his status
as a "defective delinquent" for the IBR to recommend his discharge.
The Ex Post Facto Clause is violated when a statute punishes an
act that was previously non-criminal, makes the punishment for a
crime more severe than when the crime was committed, or deprives
a person charged with a crime of a defense that was previously avail-
able. See Collins v. Youngblood, 497 U.S. 37, 42 (1990). In other
words, "[t]o fall within the ex post facto prohibition, a law must be
retrospective . . . and it must disadvantage the offender affected by it
by altering the definition of criminal conduct or increasing the punish-
ment for the crime." Lynce v. Mathis, 117 S. Ct. 891, 896 (1997)
(internal citations and quotation marks omitted); accord United States
v. Lominac, 144 F.3d 308, 311 (4th Cir. 1998). In looking at a change
to a statute to see if it violates the Ex Post Facto Clause, "we must
determine whether it produces a sufficient risk of increasing the mea-
sure of punishment attached to the covered crimes." California Dep't
of Corrections v. Morales, 514 U.S. 499, 509 (1995). As the Supreme
Court noted in Morales,
the focus of the ex post facto inquiry is not on whether a leg-
islative change produces some ambiguous sort of"disadvan-
tage," nor . . . on whether an amendment affects a prisoner's
"opportunity to take advantage of early release," but on
whether any such change alters the definition of criminal
_________________________________________________________________
8 Article I, § 10, of the United States Constitution prohibits the states
from passing any "ex post facto Law."
9 As Walsh correctly notes, this Court determined, during the first year
of his commitment to Patuxent, that the Patuxent statute is civil, rather
than criminal, in nature. See Tippett v. Maryland, 436 F.2d 1153, 1156-
57 (4th Cir. 1971).
8

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conduct or increases the penalty by which a crime is punish-
able.
Id. at 506 n.3 (internal citation omitted). It is clear that a change to
a statute that "creates only the most speculative and attenuated possi-
bility of producing the prohibited effect of increasing the measure of
punishment for covered crimes" will fall short of violating the Ex Post
Facto Clause. Id. at 509. We review whether a change in law consti-
tutes a violation of the Ex Post Facto Clause under a de novo stan-
dard. See Plyler v. Moore, 129 F.3d 728, 734 (4th Cir. 1997).
Walsh's first assertion, that the 1977 revisions increased his pun-
ishment by transforming his civil commitment at Patuxent into a puni-
tive incarceration, is without merit. According to Walsh, the revisions
harmed him by "transform[ing] Walsh's civil confinement for the pur-
poses of rehabilitation and treatment into an immediate, mandatory,
criminal punishment of 72 years duration." (Appellant's Br. at 19.)
In enacting the revisions, the Maryland legislature reimposed his orig-
inal sentence, "subject[ing] Walsh to thirteen years of criminal
imprisonment at Patuxent (1977-1990) [and][ten] more years of
incarceration at DOC prisons (1990-[2000])." (Appellant's Br. at 19.)
As Appellees concede, it is clear that the 1977 changes operated retro-
spectively. The key inquiry, then, is whether the legislature increased
Walsh's punishment simply by reimposing his criminal sentence. The
short answer is no. Before 1977, commitment to Patuxent was inde-
terminate, and it was certainly feasible for a defendant to serve a lon-
ger term of confinement there than if he served out his sentence in the
DOC. See Gluckstern v. Sutton, 574 A.2d 898, 901 (Md. 1990). The
1977 revisions ensured that no inmate, including Walsh, would serve
an indeterminate, life-long sentence at Patuxent. It is important to reit-
erate that, before the 1977 revisions reimposed his suspended sen-
tence, Walsh faced the prospect of remaining an inmate in Patuxent
for the rest of his life.10 After the revisions reimposed his suspended
_________________________________________________________________
10 We note that, under the pre-1977 statute, a Patuxent inmate's original
sentence was merely suspended, not erased, and it could be reimposed
under several sets of circumstances. For example, an inmate would be
returned to the DOC if the IBR petitioned the inmate's sentencing court
for a return to the DOC after the inmate had been paroled from Patuxent
9

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sentence, he no longer faced this prospect. Walsh concedes, as he
must, that the time he spent in Patuxent has been credited against his
original seventy-two-year sentence. Once he finishes serving that sen-
tence, he must be released. We agree with the district court that the
legislature's reimposition of the suspended sentence was therefore an
ameliorative change that, if anything, actually decreased the amount
of time that Walsh will be confined. See Dobbert v. Florida, 432 U.S.
282, 294 (1977) ("It is axiomatic that for a law to be ex post facto it
must be more onerous than the prior law.").11 Not even wildly imagi-
_________________________________________________________________
and the sentencing court granted the petition, see Md. Ann. Code art.
31B § 13(d) (1971); if the IBR recommended his release and the sentenc-
ing court disagreed with that recommendation, see Md. Ann. Code art.
31B § 13(f) (1971); or if the inmate filed a petition for unconditional
release after serving the equivalent of two-thirds of his original sentence
and the sentencing court found that he was no longer a "defective delin-
quent" but that he needed to serve out his original sentence in the DOC,
see Md. Ann. Code art. 31B § 10(a) (1971).
11 Walsh cites a number of cases in which state and federal courts
stated, either before or during his initial years at Patuxent, that a prison-
er's detention at Patuxent is civil in nature and not a form of punishment,
but of prevention, treatment, and therapy. See , e.g. Tippett v. Maryland,
436 F.2d 1153, 1156-57 (4th Cir. 1971) (noting that considerations of
punishment do not dictate an inmate's admittance to Patuxent); Director
of Patuxent Inst. v. Daniels, 221 A.2d 397, 411 (Md. 1966) ("The law
on its face clearly shows that it was not enacted to promote the aims of
punishment, retribution and deterrence, but its only purpose is for the
protection of society, and the treatment of the individual to effectuate a
cure if at all possible."). Therefore, he argues, he went from having no
punishment (serving an indeterminate sentence at Patuxent that was not
imposed for punitive purposes instead of his original 72-year sentence)
to having a 72-year sentence. This argument ignores that his original sen-
tence was never revoked and, as noted in footnote 10, could have been
reimposed even under the 1977 statute.
Walsh relies primarily upon Kansas v. Hendricks , 117 S. Ct. 2072
(1997), for the proposition that his civil commitment to Patuxent was not
a form of punishment; therefore, he argues, the reimposition of his crimi-
nal sentence necessarily increased his punishment. His reliance upon
Hendricks is misplaced because, in that case, the Supreme Court held
that the civil commitment proceedings at issue, which followed the end
10

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native speculation of the sort rejected by Morales could posit that the
replacement of a prisoner's indeterminate, indefinite sentence at
Patuxent with a determinate sentence somehow increases his punish-
ment.12
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of a defendant's criminal sentence, did not violate the Ex Post Facto
Clause because the proceedings were not punitive in nature. See id. at
2085. The Court was not addressing the situation in which a criminal
sentence was suspended in favor of an indeterminate civil commitment
and then reimposed. Indeed, because Walsh's criminal sentence was
never erased by his commitment to Patuxent, restoring it and giving
Walsh credit against it for time served at Patuxent was not an increase
in punishment irrespective of the nature of Walsh's confinement at
Patuxent.
12 As part of his first argument regarding his ex post facto claim, Walsh
contends that the reimposition of his sentence immediately following the
1977 revisions robbed him of his chance to avoid reimposition of that
sentence and a subsequent transfer to the DOC by having a sentencing
court consider the possibility of unconditional release before reimposing
his sentence. To be sure, as Walsh notes, the reimposition of his original
sentence in July of 1977 did not, as it would have under § 13(f) of the
pre-1977 statute, follow a determination by both the IBR and Walsh's
sentencing court that he should have gained "unconditional release from
custody as a defective delinquent." Md. Ann. Code art. 31B § 13(f)
(1971). However, the 1977 reimposition was still ameliorative because
it guaranteed that Walsh would only serve his original 72-year sentence,
against which his previous years at Patuxent were credited, instead of
potentially remaining in Patuxent for the rest of his life. If the old regime
had stayed in place and Walsh had never left Patuxent, the only way that
Walsh, from 1977 until the present, could have had his sentencing court
consider the possibility of unconditional release before reimposing his
sentence was if the IBR recommended that he be granted unconditional
release. No provision of the old statute required that the IBR ever make
that recommendation. Thus, instead of robbing Walsh of a chance for his
sentencing court to consider a recommendation that never had to be
made under the old regime, the 1977 revisions ensured that Walsh would
see an end to his period of confinement in state custody even if such a
recommendation was never made. Moreover, as discussed below, even
after the reimposition of his sentence following the 1977 revisions,
Walsh was still afforded the opportunity to gain early, unconditional
release from that sentence during his time at Patuxent. Unlike the pre-
11

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Walsh's next argument is that, by reimposing his original sentence,
the revisions cost him his opportunity, provided by the pre-1977 stat-
ute, for a sentencing court to consider the option of unconditionally
releasing him from state custody once he had recovered sufficiently
from his status as a "defective delinquent." This assertion is without
merit, as the post-1977 statute did provide Walsh and other inmates
with the opportunity to have their sentences vacated and to gain
unconditional release from Patuxent once the IBR and the inmate's
sentencing court agreed that it was safe to release the inmate. As
noted above, the IBR made an annual review of every inmate at
Patuxent under the pre-1977 statute. It then could decide that an
inmate should remain classified as a "defective delinquent" and
remain at Patuxent; that the inmate be granted parole or a leave of
absence; or that the inmate should be granted his unconditional
release from custody as a "defective delinquent." See Md. Ann. Code
art. 31B § 13 (1971). If the IBR chose the last option, it was to inform
the inmate's sentencing court of its recommendation. Md. Ann. Code
art. 31B § 13(f). The sentencing court, however, was not bound by
this recommendation. On its own, it was to determine
whether the [inmate] shall be released unconditionally from
custody as a defective delinquent, released conditionally on
a leave of absence or parole, returned to the custody of the
Institution as a defective delinquent, or returned to the
Department of Correction, to serve the original sentence
upon which he was committed prior to being classified as a
defective delinquent.
Id.
It is important to note that, after the 1977 revisions, the IBR contin-
_________________________________________________________________
1977 statute, in which transfer to the DOC was an automatic conse-
quence of the reimposition of the original sentence, see Md. Ann. Code
art. 31B § 13(f), the post-1977 statute allows Patuxent inmates to remain
in Patuxent once their original sentences have been reimposed and to
continue to have the opportunity for early, unconditional release from
state custody. We think that this change is an ameliorative one that actu-
ally improves the position of inmates confined to Patuxent.
12

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ued to make its yearly review of the Patuxent inmates. See Md. Code
Ann., Correctional Services § 4-302(d) (1999). The IBR retained the
discretion, based upon yearly reviews, to grant a leave of absence or
parole to a Patuxent inmate. See Md. Code Ann., Correctional Ser-
vices §§ 4-303, 4-305 (1999). To be sure, the revisions eliminated
§ 13(f) of the pre-1977 statute. However, the post-1977 statute does
provide inmates at Patuxent with a similar chance for early, uncondi-
tional release: The IBR can petition the inmate's sentencing court to
suspend or vacate the inmate's remaining sentence after he success-
fully serves three years on parole without violating the terms of that
parole. See Md. Code Ann., Correctional Services § 4-305(f). Of
course, this recommendation does not follow a conclusion from the
Board that an inmate has recovered from his status as a "defective
delinquent." After all, under the 1977 revisions, the inmates at Patux-
ent are termed "eligible persons" instead of"defective delinquents."
The recommendation does, however, follow the IBR's conclusion
"that the individual is safe to be permanently released." Id. Because
Walsh was confined as a "defective delinquent" specifically because
he was "an actual danger to society" who should be treated until it
was "reasonably safe for society to terminate the confinement and
treatment," Md. Ann. Code art. 31 § 5 (1971), we are unconvinced
that Walsh was deprived of the opportunity, during his years at Patux-
ent, to have a sentencing court decide that he should be uncondition-
ally released once he was termed "cured" of his mental affliction --
regardless of the fact that the state stopped calling that affliction "de-
fective delinquency."13 Of course, once Walsh was transferred from
_________________________________________________________________
13 To be sure, a recommendation from the IBR that a Patuxent inmate
should be unconditionally released from custody could not occur as fre-
quently under the post-1977 statute as it could under the pre-1977 statute.
The 1977 revisions required an inmate to serve three years on parole
before the IBR could exercise its discretion to make such a recommenda-
tion. However, because Walsh maintains that he was deprived of all
opportunities for early, unconditional release during his confinement at
Patuxent, he obviously does not argue that the decrease in the frequency
of the opportunities that he did have violated the Ex Post Facto Clause.
In any event, such an argument would seem to be foreclosed by existing
precedent. See California Dep't of Corrections v. Morales, 514 U.S. 499,
509 (1995) (holding that a decrease in the frequency of parole hearings
did not violate the Ex Post Facto Clause because it did not increase the
measure of punishment for the crimes of inmates); Roller v. Gunn, 107
F.3d 227, 235-36 (4th Cir. 1997) (same).
13

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Patuxent to the DOC in 1990, the IBR no longer gave him the annual
reviews from which a recommendation for early, unconditional
release might have come. This fact does not constitute an ex post
facto violation because Walsh would not have received those annual
reviews under the pre-1977 statute once he had been transferred to the
DOC.
In sum, we hold that the 1977 revisions to the Patuxent statute
about which Walsh complains did not run afoul of the Ex Post Facto
Clause.
III.
Walsh also contends that, in removing him from Patuxent, the state
of Maryland deprived him of a state-created liberty interest in remain-
ing at Patuxent and receiving its treatment programs instead of return-
ing to the DOC that is protected by the Due Process Clause.
According to Walsh, the pre-1977 statute entitled him to incarceration
_________________________________________________________________
As noted earlier, under § 10 of the pre-1977 statute, an inmate who
had served a period of confinement equal to two-thirds of his original
sentence could petition his sentencing court for a review of his status as
a "defective delinquent." See Md. Ann. Code art. 31B § 10(a) (1971).
After a hearing, the inmate could either be recommitted to Patuxent,
unconditionally released from custody, or returned to the DOC under his
original sentence with credit for the time that he had spent in Patuxent.
See id. To the extent that Walsh argues that the elimination of § 10 by
the 1977 revisions constitutes a violation of the Ex Post Facto Clause,
we disagree. Under the old § 10, Walsh could not have been eligible to
file a petition until 2017, a date which will mark the forty-eighth year of
his confinement. (Although Walsh's original sentence was imposed in
1970, his sentence starting running in November of 1969.) This review
would have only occurred assuming that Walsh had not been transferred
out of Patuxent or released before that date. Only pure conjecture of the
sort rejected by Morales can support the contention that the elimination
of the old § 10 increased the measure of Walsh's punishment because,
had the pre-1977 statute never been revised, Walsh would have still been
in Patuxent in 2017, and the sentencing court would have determined that
he was no longer a "defective delinquent" and should be unconditionally
released.
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and treatment at Patuxent until he was pronounced to no longer be a
"defective delinquent." In 1990, he was declared no longer to be an
"eligible person," a term that, as noted above, has a slightly different
meaning than the term "defective delinquent." Because he has not
been declared to be "cured" of his status as a"defective delinquent,"
Walsh argues that removing him from Patuxent deprived him of his
liberty interest. Because Walsh did not have a state-created liberty
interest in remaining at Patuxent and receiving treatment there instead
of returning to the DOC, this argument fails.
To the extent that Walsh looks to the language of the 1977 statute
in an attempt to find a liberty interest in remaining at Patuxent and
receiving its treatment programs, he is looking in the wrong place. To
be sure, the Supreme Court has "recognize[d] that States may under
certain circumstances create liberty interests which are protected by
the Due Process Clause." Sandin v. Conner, 515 U.S. 472, 483-84
(1995). In the same opinion, however, the Court rejected the idea that
courts should look to the language of prison guidelines in order "to
determine whether mandatory language and substantive predicates
created an enforceable expectation that the State would produce a par-
ticular outcome with respect to the prisoner's conditions of confine-
ment." Id. at 481. Instead, courts are to look to the nature of the
deprivation suffered by an inmate and to remember that the liberty
interests a state creates
will be generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process
Clause of its own force, nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.
Id. at 484 (internal citations omitted). Thus, the relevant question in
regard to whether a state's change of a prisoner's conditions of con-
finement deprives that prisoner of a state-created liberty interest is
whether the change "imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."14 Id.;
_________________________________________________________________
14 In Sandin, the Court specifically rejected the approach of combing
through prison guidelines in search of mandatory language that it had
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accord Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997). In
addressing this question, our standard of review is de novo. See id. at
503 (4th Cir. 1997).
In both Sandin and Beverati, inmates complained that their removal
from the general prison population and placement in disciplinary or
administrative segregation deprived them of a state-created liberty
interest. See Sandin, 509 U.S. at 476; Beverati, 120 F.3d at 502. In
rejecting these claims, the Sandin and Beverati Courts compared the
conditions that the inmates faced in administrative or disciplinary seg-
regation with those faced by inmates in the general prison population
and found that the difference in conditions did not present an atypical
or significant hardship for the inmates. See Sandin, 519 U.S. at 486;
Beverati, 120 F.3d at 503-04. In Sandin, the Supreme Court noted
that, although the disciplinary segregation of Conner, the inmate, was
punitive, it did "not present a dramatic departure from the basic con-
ditions of Conner's . . . sentence." Sandin , 519 U.S. at 485. Similarly,
in Beverati, our determination that administrative segregation did not
present an atypical or significant hardship involved using the inci-
dents of prison life that flowed from the inmates' original sentences
as a baseline for comparison with conditions in administrative segre-
gation. See Beverati, 120 F.3d at 503.
In this case, Walsh's original sentence was for a seventy-two-year
period of incarceration in the DOC. Despite his arguments to the con-
_________________________________________________________________
earlier adopted in Hewitt v. Helms, 459 U.S. 460 (1983). The Hewitt
approach, the Court found, had two negative consequences. First, it dis-
couraged states from codifying prison guidelines in order to avoid inad-
vertently creating a liberty interest. See Sandin, 515 U.S. at 482. Second,
the Hewitt approach led to the federal courts' involvement in the day-to-
day management of prisons. See id. Significantly, Walsh all but ignores
the Sandin decision, instead relying upon Hewitt in his attempt to comb
through the language of the Patuxent statute in order to advance the
claim that he had a state-created liberty interest in remaining at Patuxent
and receiving its treatment programs. We note that the Maryland case to
which Walsh turns in support of his argument that inmates have a state-
created liberty interest in remaining at Patuxent that is protected by the
Due Process Clause, Angell v. Henneberry, 607 A.2d 590 (Md. Ct. Spec.
App. 1992), was decided before Sandin and thus relied upon the Hewitt
approach in order to hold that inmates have such an interest. See id. at
597-98.
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trary, commitment to Patuxent did not form part of the basic condition
of his original sentence because the pre-1977 statute certainly did not
guarantee all convicted defendants admission to Patuxent. Walsh
makes the assertion, uncontested by Appellees, that his sentencing
court recommended, as part of his plea agreement, that he be referred
to the staff of Patuxent for examination. Assuming the truth of this
assertion, we note that the sentencing court could not promise actual
admission to Patuxent. If the Patuxent staff determined that an inmate
was not a "defective delinquent," that inmate would be denied admis-
sion to Patuxent. See Md. Ann. Code art. 31B§ 7(a) (1971). Thus, we
think it correct to say that, at the time of Walsh's conviction, the basic
condition of his sentence most relevant to our analysis is that he
would serve a seventy-two-year sentence in the DOC.
Walsh complains that, in removing him from Patuxent and placing
him in the DOC, the state of Maryland deprived him of a state-created
liberty interest. We find, however, that Maryland simply returned
Walsh to the basic conditions of his original sentence. Obviously, the
incidents of prison life that Walsh faced upon his return to the DOC
in 1990 are the same incidents of prison life that he would have faced
had he never been sent to Patuxent, and comparing these identical
incidents cannot possibly result in our finding that Walsh suffered an
atypical or significant hardship in relation to the ordinary incidents of
prison life. See Asquith v. Department of Corrections, 186 F.3d 407,
412 (3d Cir. 1999) ("Since an inmate is normally incarcerated in
prison, Asquith's return to prison [from institutional confinement in
a halfway house] did not impose atypical and significant hardship on
him in relation to the ordinary incidents of prison life and, therefore,
did not deprive him of a protected liberty interest."); Griffin v.
Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) ("[T]he baseline for deter-
mining what is `atypical and significant' -- the `ordinary incidents of
prison life' -- is ascertained by what a sentenced inmate may reason-
ably expect to encounter as a result of his or her conviction in accor-
dance with due process of law."); Callender v. Sioux City Residential
Treatment Facility, 88 F.3d 666, 669 (8th Cir. 1996) (holding that
removing an inmate from a work-release program and returning him
to prison did not, under Sandin, deprive the inmate of a liberty interest
because prison was "not atypical of what inmates have to endure in
daily prison life."). Because we agree with the district court that
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Walsh was deprived of no state-created liberty interest, his due pro-
cess claim must fail.
IV.
For the foregoing reasons, the decision of the district court to deny
Walsh a writ of habeas corpus is affirmed.
AFFIRMED
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