Bergesen v. Yordy

Filing 40

Memorandum Decision and ORDER. Respondents Motion to Dismiss (Dkt. 32 ) is GRANTED, to the extent that the Court has no jurisdiction to entertain Petitioners moot claims, given his current parole status. This case will be dismissed without prejudic e. 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. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RICHARD ALAN BERGESEN,
Case No. 1:17-cv-00502-CWD
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.
ISCI WARDEN YORDY, IDAHO
CAPP WARDEN FINN, and the
IDAHO PAROLE COMIMSSION
DIRECTOR JONES,
Respondents.

Pending before the Court in this habeas corpus matter is Respondents’ Motion to
Dismiss. (Dkt. 32.) Petitioner Richard Bergesen has filed a response and a supplement
(Dkts. 37, 39), and Respondent has filed a reply. (Dkt. 38.) All parties have consented to
the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case
in accordance with 28 U.S.C. § 636(c). (Dkt. 15.)
The Court takes judicial notice of the record from Petitioner’s state court
proceedings, lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451
F.3d 550, 551 (9th Cir. 2006).
Having carefully reviewed the record and considered the arguments of the parties,
the Court finds that the parties have adequately presented the facts and legal arguments in
the briefs and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order.
MEMORANDUM DECISION AND ORDER - 1

REVIEW OF MOTION TO DISMISS
Petitioner is proceeding on his First Amended Petition for Writ of Habeas Corpus.
(Dkt. 25.) Respondents assert that this entire action, which challenges a parole hearing
and parole violations, is moot because Petitioner is once again on parole.
1.

Factual and Procedural Background
Petitioner pleaded guilty to grand theft in a criminal action filed in the Fourth

Judicial District Court in Ada County, Idaho. (Dkt. 1 at 2.) The judgment of conviction
was entered in June of 2011. Petitioner received a unified sentence of 10 years’
incarceration in the custody of the Idaho Department of Correction (IDOC). After serving
a portion of his prison sentence, he was released on parole.
Petitioner was arrested on parole violations on August 30, 2017. He was found
guilty of two parole violations, but was granted a diversion in lieu of parole revocation.
He was required to complete programming to address his mental health needs. (State’s
Lodging B-5, p. 5.) Petitioner was cleared for parole again on June 18, 2018, and he
remains on parole today.1 His sentence satisfaction date is December 28, 2020. He will
remain in legal custody of the Idaho Department of Correction until that date.
Petitioner’s operative pleading, the First Amended Petition filed on March 5,
2018, challenges various aspects of the 2017 Idaho Commission of Pardons and Parole
hearing that resulted in guilty findings on violations of two special conditions of parole.
(Dkt. 31.)

1

See https://www.idoc.idaho.gov/content/prisons/offender_search/detail/100296.

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The First Amended Petition raises several constitutional challenges to the parole
revocation hearing, including:
1.

Violating I.C. § 20-229 and IDAPA Rule 50.01.01.400.07.b.ii;

2.

Refusing to place a witness under oath and refusing to audio
record the parole violation hearing;

3.

Refusing Petitioner’s request to subpoena witnesses for the hearing;

4.

Refusing to appoint counsel at state expense;

5.

Violating his right to confront and cross-examine his accusers at
the hearing;

6.

Refusing to comply with the Idaho Rules of Evidence at the hearing; and

7.

Failing to have a judge as the finder of fact, instead of a nonlawyer hearing officer.

(Dkt. 25, pp. 8-10.) Petitioner also requests that this Court “reverse [his] parole violation
conviction and order his Gold Seal release from parole.” (Dkt. 25, p.8.) A “Gold Seal”
means that a person has completed the entirety of the sentence for his or her crime.
On June 8, 2018, Respondents filed a motion to summarily dismiss this action
based on exhaustion grounds. (Dkt. 32.) Petitioner responded, asserting that his claims
were exhausted properly either by filing of an original petition for writ of habeas corpus
with the Idaho Supreme Court, or by filing of another state habeas corpus case in the state
magistrate court that is now on appeal to the state district court. (Dkt. 37.) In reply,
Respondents contend that the First Amended Petition challenging Petitioner’s parole
revocation hearing is moot because Petitioner is not incarcerated as a result of the parole
hearing, but is on parole. (Dkt. 38.) Alternatively, Respondents argue that this case
MEMORANDUM DECISION AND ORDER - 3

should be stayed pending Petitioner’s exhaustion of his claims that are now on appeal in
the state district court.
2.

Standard of Law for Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily

dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” Where appropriate, a respondent is permitted to file a motion for summary
dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
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). Habeas corpus is a proper remedy for parole revocation proceedings because
“the loss of liberty is a serious deprivation requiring that the parolee be accorded due
process.” Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973). Habeas corpus review is limited
to the question of whether the petitioner has been deprived of his or her constitutional
rights by the manner in which the revocation hearing was held. See Morrissey v. Brewer,
408 U.S. 471, 490 (1972) (noting that, if the parole board had followed the minimum due
process standards, such a finding would “dispose of the due process claims.”).
Accordingly, federal habeas corpus review does not include review of the
underlying merits of the Parole Commission’s decision—whether a parolee’s parole
should not have been revoked. Rather, as Respondents correctly assert here, if the
procedures deprived the parolee of his constitutional rights, then the remedy is to order
the parole commission to hold a new hearing. See Ford v. Wainright, 549 F.2d 981 (5th
MEMORANDUM DECISION AND ORDER - 4

Cir. 1977) (habeas petitioner is entitled only to an order for a “procedurally sound
hearing”).
As for the mootness issue, the court has jurisdiction to adjudicate a claim only
when there exists a “present controversy as to which effective relief can be granted.”
Serena v. Mock, 547 F.3d 1051, 1053 (9th Cir. 2008) (quoting Feldman v. Bomar, 518
F.3d 637, 642 (9th Cir. 2008)). A claim that has become moot because of changed
circumstances does not present a live controversy.
3.

Discussion
Respondent argues that, because the only remedy for a constitutionally-deficient

parole hearing is a new parole hearing, Petitioner’s claims are moot because he currently
is on parole. See Jones v. U.S. Bureau of Prisons, 903 F.2d 1178, 1181 (8th Cir. 1990).
The Court’s review of the law in this area supports Respondents’ position. See Lane v.
Williams, 455 U.S. 624 (1982); Spencer v. Kemna, 523 U.S. 1, 12-14 (1998) (a petitioner
must show that collateral consequences resulted from a prior parole revocation to avoid a
finding of mootness if the petitioner is paroled before the habeas corpus case is
adjudicated). See also Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir. 1991) (holding
that, because Picrin-Peron seeks release and has been released, “there is no further relief
we can provide.”).
Petitioner requests that this Court penalize the Parole Commission for its alleged
violations of constitutional law by ordering that he be relieved of serving his full
sentence. He asks the Court to revise his sentence to end immediately, rather than in
2020. Petitioner also argues that the Court should adjudicate his claim that the Parole
MEMORANDUM DECISION AND ORDER - 5

Commission’s procedures are facially unconstitutional, regardless of whether he is on
parole.
Rejecting a similar argument in Spencer v. Kemna, 523 U.S. 1 (1998), the United
States Supreme Court explained:
[P]etitioner argues that, even if his case is moot, that fact should be
ignored because it was caused by the dilatory tactics of the state attorney
general's office and the delay of the District Court. But mootness, however
it may have come about, simply deprives us of our power to act; there is
nothing for us to remedy, even if we were disposed to do so. We are not in
the business of pronouncing that past actions which have no demonstrable
continuing effect were right or wrong.
Id. at 18.
As case law dictates, a new hearing is the only available remedy for a
constitutionally-deficient parole hearing. See Jones v. U.S. Bureau of Prisons, 903 F.2d at
1181 (“While it is correct that the Commission failed to comply with federal regulations
by failing to give Jones a parole hearing on the record in 1981, neither the district court
nor this court has the right to correct the mistake by ordering the petitioner released. The
most we can do is require the Parole Board to give the petitioner a fair hearing in
accordance with its rules and regulations at the earliest possible date.”) (citation and
punctuation altered).
Petitioner argues that his claims are not moot, because he may be arrested again
and subjected to the allegedly unconstitutional parole provisions. That theory was
rejected in Spencer and Lane as entirely speculative. In addition, Petitioner has provided
no inkling of any collateral consequences arising from the fact that he was found guilty of

MEMORANDUM DECISION AND ORDER - 6

parole violations but was provided with a path to remain on parole rather than suffer
revocation.
Accordingly, this action will be dismissed for lack of jurisdiction.
ORDER
IT IS ORDERED:
1. Respondents’ Motion to Dismiss (Dkt. 32) is GRANTED, to the extent that the
Court has no jurisdiction to entertain Petitioner’s moot claims, given his
current parole status.
2. This case will be dismissed without prejudice.
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.

DATED: January 3, 2019
_________________________
Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 7