Storm v. Reinke et al

Filing 40

MEMORANDUM DECISION AND ORDER The Clerk of Court shall indicate on the Docket that Petitioners Motion for Oral Argument and Motion to File Sur-Reply (Dkt. 28 , 29 ) have been WITHDRAWN by Petitioner (Dkt. 34 ) and are no longer pending. Petitioner shall file a final response to this Order within 21 days after receipt of any additional records provided by Respondents. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RICKIE STORM,
Case No. 1:12-cv-00001-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

BRENT REINKE, et al,
Respondents.

Petitioner Rickie Storm filed a Petition for Writ of Habeas Corpus challenging his
parole revocation arising from his state court conviction. (Dkt. 1.) The Court denied
Respondents’ Motion to Dismiss and ordered Respondents to file a response to the
Petition. (Dkt. 24.) Respondents have filed their Response, and Petitioner has filed a
Reply. (Dkt. 26, 30.) While Petitioner originally requested permission to file a sur-reply
and requested oral argument (Dkt. 28, 29), he has since withdrawn those requests and
asks the Court to make a ruling based on the briefing before the Court. (Dkt. 34.)
Having reviewed the record and the parties’ briefing, the Court finds that oral
argument is unnecessary, and enters the following Order giving Petitioner notice that it
intends to deny and dismiss the Petition for Writ of Habeas Corpus for the reason set forth
MEMORANDUM DECISION AND ORDER - 1

herein below and providing him with an opportunity for a final response to show cause
why this case should not be dismissed with prejudice.
CONSIDERATION OF MERITS OF PETITION
1.

Standard of Law
A.

AEDPA Review Standard

Federal habeas corpus relief may be granted on claims adjudicated on the merits in
a state court judgment when the federal court determines that the petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act (AEDPA), federal habeas corpus relief is further limited to instances where
the state-court adjudication of the merits:
1.

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

2.

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding.

A state court need not “give reasons before its decision can be deemed to have
been ‘adjudicated on the merits.’” Harrington v. Richter, 131 S.Ct. 770, 785
(2011).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.
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Under the first test, for a decision to be “contrary to” clearly established federal
law, the petitioner must show that the state court applied a rule of law different from the
governing law set forth in United States Supreme Court precedent, or that the state court
confronted a set of facts that are materially indistinguishable from a decision of the
Supreme Court and nevertheless arrived at a result different from the Court’s precedent.
Williams v. Taylor, 529 U.S. 362, 404-06 (2000).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court was “unreasonable in applying
the governing legal principle to the facts of the case.” Williams, 529 U.S. at 413. The
United States Supreme Court has explained: “Section 2254(d)(1) provides a remedy for
instances in which a state court unreasonably applies this Court’s precedent; it does not
require state courts to extend that precedent or license federal courts to treat the failure to
do so as error.” White v. Woodall, 134 S.Ct. 1697, 1706 (2014).
A federal court cannot grant relief simply because it concludes in its independent
judgment that the decision is incorrect or wrong; the state court’s application of federal
law must be objectively unreasonable to warrant relief. Lockyer v. Andrade, 538 U.S. 63,
75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). To warrant habeas corpus relief, a
petitioner must show that the challenged state-court ruling “was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786-87
(2011).
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In Richter, the United States Supreme Court explained that, under § 2254(d), a
habeas court (1) “must determine what arguments or theories supported or . . . could have
supported, the state court’s decision;” and (2) “then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of this Court.” Id. at 786. If fairminded jurists could
disagree on the correctness of the state court’s decision, then a federal court cannot grant
relief under § 2254(d)(1). Id. The Supreme Court emphasized: “It bears repeating that
even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. (internal citation omitted).
As to the facts, the United States Supreme Court has clarified “that review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). This means that
evidence not presented to the state court may not be introduced on federal habeas review
if a claim was adjudicated on the merits in state court and if the underlying factual
determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d
984, 999 (9th Cir. 2014).
B.

United States Supreme Court Precedent Governing Parole Revocation

Parole revocation is not part of a criminal prosecution. Morrissey v. Brewer, 408
U.S. 471, 480 (1972). Revocation of parole is remedial rather than punitive, because it
seeks to protect the welfare of parolees and the safety of society. Gagnon v. Scarpelli,
411 U.S. 778, 783-84 (1973); Morrissey, 408 U.S. at 477.
MEMORANDUM DECISION AND ORDER - 4

The termination of parole results in a deprivation of liberty. However, because it is
not part of a criminal prosecution, “the full panoply of rights due a defendant in a
[criminal] proceeding does not apply to parole revocations.” Morrissey, 408 U.S. at 481.
Rather, only “the minimum requirements of due process” are required, which include the
following:
(a) written notice of the claimed violations of parole; (b) disclosure to the
parolee of evidence against him; (c) opportunity to be heard in person and
to present witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a “neutral and
detached” hearing body such as a traditional parole board, members of
which need not be judicial officers or lawyers; and (f) a written statement
by the factfinders as to the evidence relied on and reasons for revoking
parole.
Id. at 480.
2.

Background
In 1981, Petitioner was convicted of rape. He served his complete sentence and

was released in 1988. (State’s Lodging A-1, pp. 22) In 2004, Petitioner was convicted of
two counts of grand theft and one count of possession of a controlled substance. (State’s
Lodging A-1, pp. 53-56.) He was sentenced to unified terms of 14 years on the grand
theft counts, and 7 years on the possession count. (Id.)
In January 2007, Petitioner was granted parole, but subsequently violated parole
and was returned to prison. (State’s Lodging A-1, p. 67.) On August 26, 2008, Petitioner
was granted parole a second time, with no condition that he be supervised under the “sex
offender caseload.” (State’s Lodging A-1, pp. 53-54.) On August 28, 2008, after the
MEMORANDUM DECISION AND ORDER - 5

grant of parole and during supervision of the parole, Petitioner signed a new agreement
that placed him on the sex offender caseload, due to his 1981 rape conviction. (Id., pp.
22-25.) Petitioner asserts that he signed the new agreement under duress, because
Defendant Burgess threatened to send him back to prison immediately if he did not sign
it. (Dkt. 30.)
On January 16, 2009, Petitioner’s parole officer, Darwin Cameron, filed a report of
parole violation alleging 14 parole violations and recommending revocation of parole and
incarceration. (Id., pp. 56-64.)
On April 8, 2009, Parole Hearing Officer Christine Lewis conducted a parole
violation hearing. At that time, Petitioner conceded that he received notice of the parole
violation report and the hearing, conceded that he had signed the Agreement of Parole
that apparently included the sex offender parole terms, and stated that he did not need a
continuance of the hearing. (Id., pp. 67-68.) Petitioner was advised of the purpose of the
hearing, of his rights, and of the fact that, if found guilty, his parole could be revoked.
(Id., p 68.)
At the conclusion of the hearing, Hearing Officer Lewis dismissed seven of the
charged violations, and found Petitioner guilty of five violations, including failing to obey
laws (writing insufficient funds checks and pleading guilty to DUI), biting a police
officer, failing to submit to a polygraph to determine whether he needed sex offender
treatment, failing to submit to a drug and alcohol test at the time he was driving under the
influence, and failing to check in with his parole officer. Petitioner admitted to
MEMORANDUM DECISION AND ORDER - 6

committing two additional violations: refusing to submit to a drug and alcohol test after
driving and crashing his car, and failing to remain drug free and entering an establishment
where alcohol was the main source of income. Hearing Officer Lewis recommended that
parole be revoked. (Id., pp. 67-82.)
On July 14, 2009, the Idaho Commission of Pardons and Parole (ICPP) held a
parole revocation hearing. Petitioner conceded that he received notice of the report and
hearing, and stated that he did not need a continuance. The ICPP adopted the findings of
the hearing officer, revoked parole, and scheduled Petitioner’s next parole hearing for
July 2014. (Id., pp. 83-91.)
On February 24, 2010, Petitioner filed a state habeas corpus petition challenging
his parole revocation. (Id., pp. 19-47.) The petition was denied. (Id., pp. 170-75.) On
appeal, the Idaho Court of Appeals affirmed denial of the petition for writ of habeas
corpus. (State’s Lodging B-7.) The Idaho Supreme Court denied the petition for review,
and the remittitur was issued, concluding the state court habeas corpus action. (State’s
Lodgings B-10, B-11.)
3.

Discussion
A.

Scope and Cognizability of Petitioner’s Claims

The Court agrees with Respondents’ contention that all five of Petitioner’s habeas
corpus claims center on allegations that his constitutional rights were violated because he
was placed on the sex offender caseload for a criminal offense unrelated to a prior sex

MEMORANDUM DECISION AND ORDER - 7

offense, for which Petitioner had already served his complete sentence. Petitioner does
not bring a claim contesting the seven other grounds that support his parole revocation.
The five habeas corpus claims are as follows: (1) Respondents violated Petitioner’s
due process rights because Petitioner’s parole officer changed his “parole contract” by
requiring that he be supervised as a sex offender as a result of his 1981 rape conviction;
(2) the Idaho Department of Correction (IDOC) policy requiring sex offender supervision
violates the Due Process Clause and the Ex Post Facto Clause; (3) Petitioner’s “liberty
interests” were violated when the additional sex offender terms were added after he was
initially placed on parole; (4) Respondents’ decision to place him on the “sex offender
caseload” because of his 1981 rape conviction violated the Ex Post Facto Clause; and (5)
Respondents violated Petitioner’s First Amendment right to free exercise of religion,
because his rights were curtailed when he was placed on the sex offender caseload.
In Petitioner’s Response to Respondents’ Answer and Motion to Dismiss,
Petitioner states that he signed a parole agreement containing certain conditions on
August 26, 2008. He asserts that he was coerced into signing a new parole agreement
containing both old conditions and new sex offender conditions on August 28, 2008. He
argues that the parole conditions or restrictions that seem unrelated to the sex offender
restrictions impermissibly “hid” the sex offender violations. (Dkt. 30, p. 7.)
In reviewing the claims brought by Petitioner, the Court first summarily concludes
that, because Claim 5 does not bear on Petitioner’s custody, it fails to state a federal

MEMORANDUM DECISION AND ORDER - 8

habeas corpus claim upon which relief can be granted. The remainder of this discussion
pertains to Claims 1 through 4 only.
B.

Summary of State Court Decision Being Challenged

On appeal from Petitioner’s challenge to the parole revocation, Petitioner asked the
Court of Appeals to review the merits of his claims relating to the sex offender
supervision restrictions, and the merits of the parole revocation decision. (State’s Lodging
B-7, p. 3.) The Idaho Court of Appeals determined that Petitioner’s objections to having
been supervised under the standards for a sex offender were moot, because his “parole
was validly revoked based on other violations that had nothing to do with his supervision
as a sex offender.” (Id., p. 7, p. 8 (footnote omitted).) The Idaho Court of Appeals
reasoned: “Because he is no longer on parole, the relief he seeks—parole without sex
offender supervision—is not within the power of this Court to grant and therefore
addressing the issue would have no practical effects.” (State’s Lodging B-7, p. 8.) In a
footnote, the Idaho Court of Appeals observed: “We note that Storm has received
assurances from the director of the Idaho Department of Correction that he will not be
supervised as a sex offender if he is ever granted parole in the future.” (Id., p. 8 n.3.)
In its opinion, the Idaho Court of Appeals clearly addressed the merits of
Petitioner’s claim that his parole was improperly revoked, and it did not find it necessary
to specifically address Petitioner’s sex offender restriction contentions in finding that his
parole was properly revoked. The Idaho Supreme Court denied the petition for review
without comment.
MEMORANDUM DECISION AND ORDER - 9

This Court concludes that the Idaho Court of Appeals’s decision should be
categorized as an adjudication of the merits of the validity of the parole revocation,
regardless of whether it addressed Petitioner’s subclaims about the propriety of adding
sex offender restrictions to Petitioner’s parole conditions. To demonstrate that he is
entitled to habeas corpus relief, Petitioner must show that the state court decision
affirming the revocation of his parole was unconstitutional. Hence, the decision is entitled
to AEDPA deference.
C.

AEDPA Review of Comprehensive Parole Revocation Decision

Respondents argue, and the Court agrees, that the United States Supreme Court has
not addressed a set of facts like those in the Petition. Petitioner has not pointed to, nor has
the Court found in its independent research, any case law to support his contention that
the Idaho Court of Appeals’s decision affirming the revocation of Petitioner’s parole is
contrary to, or an unreasonable application of, United States Supreme Court precedent.
The United States Supreme Court has acknowledged that § 2254(d)(1) does not

require an “identical factual pattern before a legal rule must be applied.” Woodall, 134
S.Ct. at 1706 (citation omitted). However, to warrant relief, it must be “so obvious that a
clearly established rule applies to a given set of facts that there could be no ‘fairminded
disagreement’ on the question.” Id. (citing Richter).
There is no case law from the Supreme Court demonstrating that it is
unconstitutional to revoke parole for reasons such as “writing insufficient fund checks,
possessing illegal drugs, driving under the influence (DUI), attempting to assault a police
MEMORANDUM DECISION AND ORDER - 10

officer, attempting to assault hospital staff after his DUI arrest, failing to submit to a drug
and alcohol test, not immediately reporting to one’s residence upon release from prison,
staying at a different residence without permission, not checking in which his parole
officer immediately upon release from prison, not residing at his approved residence for
four days, not returning one’s parole officer’s phone calls, entering an establishment
where alcohol is the main source of income, or associating with persons who were
involved with illegal activities” (State’s Lodging B-7, p.7)—either with or without an
overlay of sex offender restrictions.
As noted above, the United States Supreme Court has addressed the due process
rights of parolees in parole revocation proceedings. Here, Petitioner is not contesting the
procedural due process aspects of his parole revocation prehearing and hearing
procedures. The United States Supreme Court has not addressed Petitioner’s particular
due process claim—which is altogether different—whether states can change the
conditions of parole midstream and require a parolee to submit to sex offender treatment,
where his current conviction is not for a sex offense, but based on a distant sex offense
conviction for which a sentence has been served. Neither has the United States Supreme
Court held that regular parole restrictions that seem unrelated to sex offender restrictions
impermissibly “hide” sex offender violations, and, thus, are unconstitutional. (See Dkt.
30, p. 7.) Similarly, no Supreme Court precedent supports Petitioner’s argument made to
the Idaho Court of Appeals that the state district court “erred in holding that his claims
arising out of sex offender supervision are moot because if he was improperly placed on
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sex offender supervision in violation of his constitutional rights any parole violations he
committed afterward [regardless of their lack of a relationship to sex offender
supervision] are rendered ‘null and void.’” (State’s Lodging B-7, p. 3 (parenthetical
added).)
In addition to remaining silent on the propriety of conditions of parole, the United
States Supreme Court has never clarified what quantum of evidence is necessary to
satisfy due process in a parole board’s decision to revoke parole. In the context of prison
disciplinary decisions, the Supreme Court has held that there had to be some evidence to
support the prison officials’ decision. See Superintendent v. Hill, 472 U.S. 445, 455
(1985). But the Supreme Court had never extended Superintendent v. Hill to the parole
revocation context. Without any similar precedent from the United States Supreme Court,
Petitioner’s argument that the parole revocation decision rests on inadequate grounds
necessarily fails under AEDPA.
As the parties have noted, the United States Court of Appeals for the Ninth Circuit
has addressed a similar issue in Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), but only
as a procedural due process issue in the context of a civil rights claim. See Neal, 131 F.3d
at 831. In that case, the court held that Mr. Neal, who had never been convicted of a sex
offense and had never had an opportunity to formally challenge the imposition of the “sex
offender” label in an adversarial setting, must be afforded the minimum due process
protections to be able to challenge his classification as a sex offender. While Neal
addresses the same type of due process claim Petitioner has brought—due process in the
MEMORANDUM DECISION AND ORDER - 12

imposition of parole conditions and not due process in the parole revocation
procedures—the problem for him is twofold: (1) under AEDPA, federal habeas corpus
relief cannot be premised upon circuit precedent, and (2) the errors Petitioner raises did
not result in unlawful custody, but are more of the nature of a civil rights violation, as in
Neal.
4.

Conclusion and Petitioner’s Request for State Court Records
For all of these reasons, the Court concludes that Petitioner’s Petition is subject to

denial and dismissal. The Court gives Petitioner notice that it intends to deny and dismiss
the Petition. Because Petitioner asserts that he needs other portions of the state court
record to contest denial or dismissal, the Court will order Respondents to provide portions
of the state court record to Petitioner, and provide Petitioner with a final opportunity to
submit a written response to this Order, which shall be filed within 21 days after he
receives any additional portions of the state court record from Respondents.
Within 14 days after entry of this Order, Petitioner shall file a notice indicating
which records in Respondents’ Notice of Lodging that Petitioner has in his possession
and which records Petitioner does not. Within 14 days thereafter, Respondents shall
provide Petitioner with a copy of any of the records referenced in Respondents’ Answer
and Brief in Support of Dismissal that Petitioner does not already possess, so that
Petitioner ends up with one complete set of the records referenced in Rule 5(c) and 5(d)
of the Rules Governing § 2254 Cases. Respondents shall file a notice of compliance.
Additional records that are or were provided as a courtesy to the Court but that are not
MEMORANDUM DECISION AND ORDER - 13

referenced in Respondents’ Answer and Brief in Support of Dismissal and are not
included in Rule 5(c) or 5(d) need not be provided to Petitioner, but Petitioner may obtain
those from the state clerk of court at his own expense, if he desires.
Petitioner also shall indicate in his notice whether he believes any additional
records exist that are relevant to a determination of the claims in the petition or to any
preliminary procedural issues. In the notice of compliance, Respondents shall indicate
whether they agree that any additional records identified by Petitioner are relevant and
whether they have been provided to Petitioner, or they shall inform Petitioner that such
documents will not be provided, whereupon Petitioner may obtain those records from the
state clerk of court at his own expense and provide copies to Respondents and the Court.
ORDER
IT IS ORDERED:
1.

The Clerk of Court shall indicate on the Docket that Petitioner’s Motion for
Oral Argument and Motion to File Sur-Reply (Dkt. 28, 29) have been
WITHDRAWN by Petitioner (Dkt. 34) and are no longer pending.

2.

Petitioner and Respondents shall follow the instructions set forth above to
provide Petitioner with portions of the state court record he does not
possess.

3.

Petitioner shall file a final response to this Order within 21 days after
receipt of any additional records provided by Respondents.

MEMORANDUM DECISION AND ORDER - 14

DATED: September 29, 2014

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 15