HOLMES v. STATE OF INDIANA

Filing 9

ENTRY Dismissing Case and Directing Entry of Final Judgment.. This action must be dismissed pursuant to 28 U.S.C. § 1915 for the reasons set forth in the Court's Screening Entry. Final Judgment consistent with this Entry shall now issue. (See Order.) Signed by Judge Larry J. McKinney on 2/15/2017. Copy sent to Plaintiff via US Mail.(LDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

FREDERICK R. HOLMES,
Plaintiff,
vs.
STATE OF INDIANA,
Defendant.

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Case No. 1:16-cv-03181-LJM-MJD

Entry Dismissing Case and Directing Entry of Final Judgment
The Court screened the Complaint in this action and dismissed the plaintiff’s claims. The
plaintiff was given an opportunity to show cause why this action should not be dismissed and has
attempted to do so. For the reasons explained, the plaintiff has failed to show that this case should
not be dismissed.
The plaintiff’s response to the Court’s show cause order focuses on his claims under the
Ex Post Facto Clause and the Due Process Clause. As to the Ex Post Facto claim, the Court
explained in its Screening Entry that the plaintiff’s allegations regarding Indiana’s Sexually
Violent Predator regime do not show that the changes created by the law are penal in nature, which
is required to show an ex post facto violation. “[W]hether a comprehensive registration regime
targeting only sex offenders is penal . . . is not an open question,” given that the Supreme Court in
Smith v. Doe, 538 U.S. 84 (2003), held that “an Alaska sex offender registration and notification
statute posed no ex post facto violation because it was a civil, rather than penal, statute.” United
States v. Leach, 639 F.3d 769, 772 (7th Cir. 2011). Moreover, the Seventh Circuit has held that the
federal registration statute, the Sex Offender Registration and Notification Act, “is not an ex post

facto law.” Id. The plaintiff’s further discussion of Indiana’s Sexually Violent Predator laws in
his response fail to undermine this established law. Accordingly, his federal ex post facto claim
was properly dismissed in the Court’s Screening Entry.
As to Due Process claim, that plaintiff asserts that prior to May 9, 2007, Indiana Code § 3538-1-7.5 required the Court to determine whether the criminal defendant is a Sexually Violent
Predator after consulting with two board certified psychologists or psychiatrists who have
expertise in criminal behavior disorders. He argues that the current rule does not provide this same
protection and that he should not be considered a Sexually Violent Predator without examination
by an expert in the field of mental abnormalities. He argues that anything less violates his due
process rights. He is mistaken.
The version of Indiana Code § 35-38-1-7.5, effective through May 9, 2007, defined
“sexually violent predator” as a person who suffers from a mental abnormality or personality
disorder that makes the individual likely to repeatedly engage in certain offenses. The statute stated
that a person who is at least eighteen years of age who committed one (or more) of the listed
offenses is a sexually violent predator. At the sentencing hearing, the court was to determine
whether the person is a sexually violent predator because he committed a relevant offense. If the
court did not find the person to be a sexually violent predator based on the offense committed, the
court was required to consult with a board of experts consisting of two board certified
psychologists or psychiatrists who have expertise in criminal behavioral disorders to determine if
the person is a sexually violent predator under the statute.
The current version of Indiana Code § 35-38-1-7.5 provides in relevant part that unless
certain exceptions are met, a person released from incarceration, secure detention, probation, or
parole for the offense after June 30, 1994, is a sexually violent predator by operation of law if: 1)

the offense committed by a person at least 18 years of age is one of the listed sex offenses, or 2) if
the person commits a sex offense (as defined in Indiana Code § 11-8-8-5.2) while having a
previous unrelated conviction for a sex offense for which the person is required to register as a sex
or violent offender under Indiana Code § 11-8-8.
Neither version of Indiana Code § 35-38-1-7.5 creates an entitlement to an examination by
an expert in the field of mental abnormalities before being labeled a Sexually Violent Predator
when one of the enumerated offenses is committed. The earlier version of the statute created
another pathway for the court to impose the Sexually Violent Predator label. There is no plausible
basis to conclude that the plaintiff has suffered any harm from the change in this law or that he
was not given all of the process to which he was entitled before being labeled a Sexually Violent
Predator.
In sum, this action must be dismissed pursuant to 28 U.S.C. § 1915 for the reasons set forth
in the Court’s Screening Entry. Final Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
2/15/2017
Date: __________________
Distribution:

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LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

FREDERICK R. HOLMES
935125
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362