Storm v. Reinke et al
Filing
50
MEMORANDUM DECISION AND ORDER The Petition for Writ of Habeas Corpus (Dkt. 1 ) is DENIED and DISMISSED with prejudice, with the exception of Claim 5, which is DIMISSED without prejudice. Petitioner's "Prayer for Relief and Request for the Court to Enter a Final Order" (Dkt. 41 ) is GRANTED only to the extent that the Court had issued a final Order denying and dismissing the Petition for Writ of Habeas Corpus. re: 1 Petition for Writ of Habeas Corpus. 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,
Petitioner,
vs.
Case No. 1:12-cv-00001-BLW
MEMORANDUM DECISION
AND ORDER
BRENT REINKE, et al.,
Respondents.
Petitioner Rickie Storm filed a Petition for Writ of Habeas Corpus challenging the
revocation of his parole, arising from a state criminal conviction. (Dkt. 1.) The Court
denied Respondents’ Motion to Dismiss and ordered them 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and requested oral argument (Dkt. 28, 29), he has since withdrawn those requests and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 rule on the briefing before the Court. (Dkt. 34.)
Petitioner also notified the Court that his case file had been destroyed while he
was on parole. The Court provided Petitioner with a new copy, and gave him 21 days to
file any final response to the Court’s notice of intent to dismiss this case. (Dkt. 48.)
Petitioner has filed his final response. (Dkt. 49.)
MEMORANDUM DECISION AND ORDER - 1
Having reviewed the record and the parties’ briefing, the Court finds that oral
argument is unnecessary. Accordingly, the Court enters the following Order denying and
dismissing the Petition for Writ of Habeas Corpus.
CONSIDERATION OF MERITS OF PETITION
1.
Standard of Law
Federal habeas corpus relief may be granted where a petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Where the petitioner challenges a state court judgment in which the
petitioner’s federal claims were adjudicated on the merits, then Title 28 U.S.C.§ 2254(d),
as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
applies. Title 28 U.S.C.§ 2254(d) limits relief to instances where the state court’s
adjudication of the petitioner’s claim:
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.
28 U.S.C. § 2254(d). A federal habeas court reviews the state court’s “last reasoned
decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501
U.S. 797, 804 (1991).
MEMORANDUM DECISION AND ORDER - 2
Where a petitioner 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.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although it identified “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] 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 habeas relief simply because it concludes in its
independent judgment that the state court’s decision is incorrect or wrong; rather, 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, 535 U.S. at 694. If fairminded jurists
MEMORANDUM DECISION AND ORDER - 3
could disagree on the correctness of the state court’s decision, then relief is not warranted
under § 2254(d)(1). Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The Supreme
Court emphasized that “even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (internal citation omitted).
Though the source of clearly established federal law must come only from the
holdings of the United States Supreme Court, circuit precedent may be persuasive
authority for determining whether a state court decision is an unreasonable application of
Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).
However, circuit law may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not
announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).
If the state appellate court did not decide a properly-asserted federal claim on the
merits—or if the state court’s factual findings are unreasonable under § 2254(d)(2)—then
§ 2254(d)(1) does not apply, and the federal district court reviews the claim de novo.
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such a case, as in the preAEDPA era, a district court can draw from both United States Supreme Court and well as
circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S.
288 (1989).
Under de novo review, if the factual findings of the state court are not
unreasonable, the Court must apply the presumption of correctness found in § 2254(e)(1)
MEMORANDUM DECISION AND ORDER - 4
to any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a state court
factual determination is unreasonable, or if there are no state court factual findings, the
federal court is not limited by § 2254(e)(1),the federal district court may consider
evidence outside the state court record, except to the extent that § 2254(e)(2) might apply
(limiting evidentiary hearings for failure to develop the factual basis of the claim in state
court). Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
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.
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
MEMORANDUM DECISION AND ORDER - 5
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. 22-25.) 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 he 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 the first day of
his release to parole, Petitioner failed to report to his parole officer and the New Hope
rehabilitation center, as instructed. (Id., p. 89.) On August 27, Petitioner admitted to
having stayed overnight at a place not approved by his parole officer or the Idaho
Commission of Pardons and Parole (ICPP). (Id.)
On August 28, 2008, Petitioner signed a new parole 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 his parole officer
threatened to send him back to prison immediately if he did not sign it. (Dkt. 30.)
MEMORANDUM DECISION AND ORDER - 6
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, admitted that he had signed
the Agreement of Parole that 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, 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 committing additional
violations: refusing to submit to a drug and alcohol test after driving and crashing his car,
failing to remain drug free, and entering an establishment where alcohol was the main
source of income. Lewis recommended that parole be revoked. (Id., pp. 67-82.)
On June 18, 2009, in response to a prison grievance filed by Petitioner, IDOC
Director Brent Reinke sent Petitioner a letter stating that, due to recent changes in sex
MEMORANDUM DECISION AND ORDER - 7
offender assessments, Petitioner’s sex offense was too old to accurately evaluate within
the new assessments. Reinke stated that, if the ICPP reinstated Petitioner’s parole after
the upcoming hearing on the charged parole violations, Petitioner would not be placed on
a sex offender caseload. (Dkt. 49, p. 6.)
On July 14, 2009, the ICPP held a parole revocation hearing on the charged parole
violations. 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, which concluded the state court habeas corpus action.
(State’s Lodgings B-10, B-11.)
Petitioner’s five habeas corpus claims contained in his federal Petition for Writ of
Habeas Corpus 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
MEMORANDUM DECISION AND ORDER - 8
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
ability and right to worship were curtailed when he was placed on the sex offender
caseload.
3.
Discussion
A. Noncognizable Claims
The Court summarily concludes that Claim 5, regarding Petitioner’s free exercise
rights, does not bear on Petitioner’s custody. Therefore, it fails to state a federal habeas
corpus claim upon which relief can be granted and is subject to dismissal. The remainder
of this discussion pertains to Claims 1 through 4.
B. Summary of State Court Decision Being Challenged
The state district court found that Storm admitted to most of the parole violations.
(Dkt. 1-1, p. 7.) Because the parole violations sufficiently supported the decision to
revoke parole, Petitioner’s habeas corpus petition was denied.
On appeal, the Idaho Court of Appeals addressed the merits of Petitioner’s claim
that his parole was improperly revoked. The Court of Appeals did not address the sex
offender grounds Petitioner contested, but found other adequate grounds for parole
MEMORANDUM DECISION AND ORDER - 9
revocation. The Court of Appeals determined that the sex offender grounds were moot as
a result of the fact that his parole was validly revoked on other grounds and he was no
longer on parole. (State’s Lodging B-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.” Id. The Idaho Supreme
Court denied the petition for review without comment.
This Court concludes that the Idaho Court of Appeals’s decision constitutes a
decision on the merits of the validity of the parole revocation, even though the Idaho
Court of Appeals did not address Petitioner’s subclaims about the propriety of adding sex
offender restrictions to Petitioner’s parole conditions. To show he is entitled to federal
habeas corpus relief, Petitioner must show that his detention is unlawful; the Court of
Appeals determined that his detention is lawful, based upon the non-sex-offender
conditions. Because the Idaho Court of Appeals’s decision addressed the merits of
Petitioner’s parole revocation, the decision is entitled to AEDPA deference.
C. AEDPA Review of Parole Revocation Decision - No United States
Supreme Court Precedent to Support Claims
Respondents argue, and the Court agrees, that, as to Petitioner’s remaining four
claims, the United States Supreme Court has not addressed a similar set of facts under the
Due Process Clause or the Ex Post Facto Clause, or at all. Petitioner has not identified,
nor has the Court found in its independent research, any case law to support Petitioner’s
MEMORANDUM DECISION AND ORDER - 10
contention that the Idaho Court of Appeals’s decision to revoke Petitioner’s parole is
contrary to, or an unreasonable application of, United States Supreme Court precedent.
“Section 2254(d)(1) does not require state courts to extend . . . precedent or license
federal courts to treat the failure to do so as error.” White v. Woodall, 134 S. Ct. at 1706.
While § 2254(d)(1) does not require an “identical factual pattern before a legal rule must
be applied,” id. at 1706, 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. at 1706-07 (citing Richter).
The Court first considers whether the non-sex-offender grounds for Petitioner’s
parole revocation compel the outcome Petitioner seeks, because Petitioner is currently
detained on the grounds that the Idaho Court of Appeals upheld his parole revocation on
the non-sex-offender violations. There is no case law from the United States Supreme
Court holding that it is unconstitutional to revoke parole for any of the reasons supporting
Petitioner’s parole revocation: writing insufficient fund checks, possessing illegal drugs,
driving under the influence (DUI), attempting to assault a police officer, attempting to
assault hospital staff after his DUI arrest, failing to submit to a drug and alcohol test,
failing to submit to a polygraph test, not immediately reporting to one’s residence upon
release from prison, staying at a different residence without permission, not checking in
with one’s parole officer immediately upon release from prison, not residing at an
approved residence for four days, not returning one’s parole officer’s phone calls,
MEMORANDUM DECISION AND ORDER - 11
entering an establishment where alcohol is the main source of income, or associating with
persons who were involved with illegal activities.
Next, the Court determines whether the United States Supreme Court has
addressed the constitutionality of imposing strict conditions for sex offenders in a parole
or probation setting. The Court finds no case prohibiting strict conditions for sex
offenders when they are released on parole or probation. Neither are there any cases from
the Supreme Court governing the question of whether additional parole restrictions can
be imposed after the State and the parolee initially agreed to a different set of conditions.
Finally, there is no Supreme Court precedent regarding whether a person who has already
completed a sex offender sentence can be required to submit to sex offender conditions
while on parole for an unrelated offense.
In summary, no United States Supreme Court precedent exists to support
Petitioner’s claims for relief. Accordingly, §2254(d)(1) precludes relief.
D. The State May Impose Unilateral Parole Terms without Violating Due
Process
The State has a strong interest in imposing restrictions that will keep the public
safe, and there is no federal right to be released on parole before the expiration of one’s
sentence. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442
U.S. 1,7 (1979); Morrissey v. Brewer, 408 U.S. at 477. Petitioner does not contend that
he did not agree to the new conditions; rather, he argues that the State gave him no choice
but to agree to the conditions if he wanted to remain on parole. (Dkt. 49, p. 6-7.) Nothing
MEMORANDUM DECISION AND ORDER - 12
in either federal or state law can be construed as permitting a parolee to bargain for his
parole conditions; rather, the State sets conditions as it sees fit for the purposes of public
safety and prisoner rehabilitation, and each parolee is free to agree to all of the conditions
and be paroled, or disagree with the conditions and decline parole. Petitioner has not
shown that the Due Process Clause or any other constitutional provision is violated when
a “parole contract” is amended by the State to include additional restrictions after parole
has begun, and the parolee accepts the additional conditions rather than face parole
revocation proceedings.
E. Procedural Due Process Protections Exist only for Parole Revocation, not
for Imposition of Parole Conditions
Petitioner is mistaken in his belief that the Due Process Clause requires the State
to hold a parole hearing prior to addition of new parole conditions. The case law he relies
upon governs the type of due process required after a parolee is accused of violating
parole. See Morrissey v. Brewer, 408 U.S. at 482. This case law cannot be extended to fit
Petitioner’s set of facts, because Petitioner had notice of, and agreed to, the new
conditions before any parole violation was issued.
As the parties have noted, the United States Court of Appeals for the Ninth Circuit
addressed a similar issue in Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997) (consolidating
Neal v. Shimoda and Martinez v. Nobriga), but only as a procedural due process issue in
the context of a civil rights claim. See id.at 831. In that case, the court held that one of the
plaintiffs, Mr. Neal, who had never been convicted of a sex offense and had never had an
MEMORANDUM DECISION AND ORDER - 13
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. However, the other plaintiff, Mr. Martinez,
had been convicted of a sex offense, attempted rape, and so the court held:
An inmate who has been convicted of a sex crime in a prior adversarial
setting, whether as the result of a bench trial, jury trial, or plea agreement,
has received the minimum protections required by due process. Prison
officials need do no more than notify such an inmate that he has been
classified as a sex offender because of his prior conviction for a sex crime.
Neal, 131 F.3d at 831.
Petitioner is like Mr. Martinez, not Mr. Neal, because Petitioner has been
convicted of a sex offense in the past, for which he did have procedural due process
protections. Even if Neal aided Petitioner’s argument, federal habeas corpus relief cannot
be premised upon circuit precedent.
F. Ex Post Facto Prohibitions Are Not Applicable
The ex post facto provisions of the Constitution “forbid[] the Congress and the
States to enact 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); U.S.Const., Art. I, § 9, cl. 3; Art. I, § 10, cl.
1. To be an ex post facto violation, the law or action “must be retrospective, and it must
disadvantage the offender affected by it.” Id. at 29.
The United States Supreme Court has recognized that restrictive conditions of
release imposed after sex offenders complete their sentences are not intended to be
MEMORANDUM DECISION AND ORDER - 14
punitive, but instead serve important non-punitive goals and, thus, do not violate the Ex
Post Facto Clause. See Smith v. Doe, 538 U.S. 84, 103–106 (2003). Similarly, because
conditions of release on parole are not intended to be punitive, the ex post facto
provisions of the Constitution do not apply, regardless of whether the additional
conditions were required of Petitioner before or after his release on parole. Accord, Neal,
131 F.3d at 827 (rejecting ex post facto argument).
G. Habeas Corpus Relief Cannot Be Granted for Violations of IDOC Policy
or Idaho Law
Many of Petitioner’s arguments rest on Idaho Department of Correction policy and
Idaho state law. He argues that parole officials had no authority to decide to change his
parole conditions, but, rather, any parole condition changes should have come directly
from the ICPP. (Dkt. 49, pp. 2-4.) See Mellinger v. Idaho Department of Correction, 757
P.2d 1213 (Idaho Ct. App. 1988).1 These arguments are unhelpful, because federal
habeas corpus relief cannot be granted on the ground that a conviction or sentence
violates the state constitution or state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990)
(AFederal habeas corpus relief does not lie for errors of state law.@); see also Peltier v.
Wright, 15 F.3d 860, 861-62 (9th Cir. 1994) (noting that generally federal habeas corpus
relief is unavailable for alleged errors in interpretation and application of state law).
1
In Mellinger, the Court of Appeals determined that, under state law, the Board of Correction had responsibility to
supervise parolees and could recommend conditions to the ICPP, but the ICPP must at least “administratively
accept[] and approve” the conditions. 757 P.2d at 1219. In other words, “substantive conditions recommended by
the Board cannot be imposed without the Commission’s approval.” Id. Even if Petitioner’s state law arguments
could be entertained, Petitioner would have to show that the new parole conditions added by parole officers were not
subsequently approved or adopted by the ICPP, which is permitted under Mellinger.
MEMORANDUM DECISION AND ORDER - 15
5.
Conclusion
For all of these reasons, the Court concludes that the Petition for Writ of Habeas
Corpus is subject to denial and dismissal with prejudice, with the exception of Claim 5,
which will be dismissed without prejudice.
ORDER
IT IS ORDERED:
1. The Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED and DISMISSED
with prejudice, with the exception of Claim 5, which is DIMISSED without
prejudice.
2. Petitioner’s “Prayer for Relief and Request for the Court to Enter a Final Order”
(Dkt. 41) is GRANTED only to the extent that the Court had issued a final Order
denying and dismissing the Petition for Writ of Habeas Corpus.
3. The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files a
timely notice of appeal, the Clerk of Court shall forward a copy of the notice of
appeal, together with this Order, to the United States Court of Appeals for the
Ninth Circuit. Petitioner may seek a certificate of appealability from the Ninth
Circuit by filing a request in that court.
MEMORANDUM DECISION AND ORDER - 16
DATED: March 6, 2015
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
MEMORANDUM DECISION AND ORDER - 17
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