Ellenburg v. Kirkegard
Filing
33
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 19 in full. Motions ( 22 , 23 , 26 , 29 , 32 ) DENIED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 1/18/2018. Mailed to Ellenburg (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FILED
JAN 18 2018
~~Of~ct Court
Missoulant(tna
MICHAEL ELLENBURG,
CV 17-34-M-DLC-JTJ
Petitioner,
ORDER
vs.
LEROY KIRKEGARD,
Respondent.
United States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on August 29, 2018, recommending that Plaintiff
Michael Ellenburg's ("Ellenburg") petition under 28 U.S.C. § 2254 for writ of
habeas corpus be dismissed on the merits.
Ellenburg timely filed an objection to
the Findings and Recommendations, and so is entitled to de novo review of those
findings and recommendations to which he specifically objects. 1
1
28 U.S.C. §
Ellenburg has filed the following documents in response to the Findings and
Recommendations: "Request for Evidentiary Hearing or In the Alternative, Notice of Appeal" on
September 25, 2017 (Doc. 22); an amended "Request for Evidentiary Hearing or in the
alternative, Notice of Appeal" on October 3, 2017 (Doc. 23); a notice entitled "MCA 45-18-801
Effect of Conviction and Deprivation of U.S. Constitution Rights" on October 5, 2017 (Doc. 24);
a "Addenda Notice of Estoppel" on October 10, 2017 (Doc. 25); a "Motion and Brief
Evidentiary Hearing" on October 16, 2017 (Doc. 26); a "Judicial Notice" on October 23, 2017
(Doc. 27); a "Judicial Notice with Retrospective Application of Attainer" on November 2, 2017
(Doc. 28); a "Pursuant to 2254(2)(b)(h) U.S.C., Motion and Order Appointment of Counsel" on
November 14, 2017 (Doc. 29); a letter on November 14, 2017 (Doc. 30); a "Judicial Notice" on
November 16, 2017 (Doc. 31); and a "Motion and Brief Stay of Request of§ 46-18-208 MCA,
Termination of Remaining Portion of Suspended Sentence" on November 17, 2017 (Doc. 32).
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636(b )(1 )(C).
This Court reviews for clear error those findings and
recommendations to which no party objects.
See McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn,
474 U.S. 140, 149 (1985).
Clear error exists ifthe Court is left with a "definite
and firm conviction that a mistake has been committed."
United States v. Syrax,
235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
Notwithstanding the above, "[w]here a petitioner's objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will be reviewed for clear
error."
Rosling v. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014)
(citations omitted).
Ellenburg challenges the Montana Board of Pardons and Parole's (BOPP)
imposition of a release condition that requires prisoners to establish a long-term
permanent residence prior to being allowed parole.
his due process rights.
He contends that this violates
Further, Ellenburg argues that the doctrine of ex post facto
applies to his parole situation because he has been incarcerated past his parole date
The Court has considered all filings by Ellenburg as objections, and will construe Documents 22,
23, and 26 as motions for an evidentiary hearing, Document 29 as a motion to appoint counsel,
and Document 32 as a motion to set aside sentence. These motions are addressed within this
Order.
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due to an alleged increased punishment from the parole condition.
that the condition imposes a more restrictive parole standard.
He contends
Ellenburg also
alleges that an equal protection violation has occurred because other similarlysituated individuals are not subject to the same parole conditions as him.
It is well established that there exists no substantive federal right to release
on parole, and "the only federal right at issue" in the context of habeas claims
regarding parole hearings is a procedural right.
216, 222 (2011) (per curium).
Swarthout v. Cooke, 562 U.S.
With respect to parole hearings, "[t]here is no right
under the Federal Constitution to be conditionally released before the expiration of
a valid sentence, and the States are under no duty to offer parole to their prisoners."
Id. at 220.
An inmate is constitutionally entitled only to an opportunity to be
heard, and a statement of reasons why parole was denied.
Id.
The "beginning
and the end of federal habeas" analysis is whether the inmate received the minimal
procedural protections required under the Due Process Clause.
Id.
Further,
Montana law allows the board to adopt any rules that it deems proper or necessary
in relation to prisoners' eligibility for parole and the conduct of parole hearings.
Mont. Code Ann.§ 46-23-218(1) (2016).
Under an ex post facto analysis, there must first be two elements present for
ex post facto to apply: "first, the law must be retrospective, that is, it must apply to
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events occurring before its enactment; and second, it must disadvantage the
offender affected by it."
Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.
1995) (quoting Miller v. Florida, 482 U.S. 423, 430 (1987)).
"The Ex Post Facto
Clause 'forbids the imposition of punishment more severe than the punishment
assigned by law when the act to be punished occurred.'"
Id. at 765.
Finally, with respect to an equal protection claim, the Fourteenth
Amendment states that "[n]o state shall ... deny to any person within its
jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV.
The
equal protection clause directs that "all persons similarly circumstanced shall be
treated alike."
F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).
The Court notes Ellenburg's objections, but they are misplaced.
He fails to
articulate any specific issue with Judge Johnston's reasoning, and instead reiterates
his perception that his rights have been violated in some manner.
Ellenburg does
not present any new evidence or legal authority that proves his constitutional rights
were violated when he was subjected to certain parole conditions, or that he is
entitled to habeas relief.
The Court agrees with Judge Johnston that: (1)
Ellenburg's due process rights have not been violated because he remains eligible
for parole consideration upon submission of an acceptable living plan; (2) the
doctrine of ex post facto is not implicated because the parole condition requiring
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him to find suitable housing is a reasonable one that is placed on all potential
parolees; (3) Ellenburg's equal protection rights were not violated because all
offenders must identify a place to live prior to their parole release and Ellenburg
has failed to show he is being discriminated against in any manner, much less
because of his disability; and (4) Ellenburg is not entitled to habeas relief on the
ground that a conviction or sentence violates the state constitution or state law.
Further, Ellenburg's main contention in his motions for an evidentiary
hearing is that the affidavit submitted by James Jess sets forth untrue and incorrect
statements regarding parole, probation, and discharge.
(See Docs. 22, 23 and 26.)
Ellenburg argues that the cost of transitional housing and additional expenses upon
release far exceed any potential income he would have, which makes the parole
condition impossible.
He asserts that his economic condition is "atypical and
significant" which leaves him unable to comply with the terms of the parole
housing requirement.
(Doc. 23 at 2.)
Firstly, the Court takes the facts submitted
by Mr. Jess in his affidavit and sworn under oath as true.
The facts contained
therein are general comments about the parole process and why it is important for
parolees to have a housing plan.
(See Doc. 17 at 3.)
The affidavit also contains
information related to the multiple times Ellenburg appeared in front of the Board
and submitted his desired parole plans.
(Id. at 3-7.)
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Ellenburg's disagreement
with the Board's conditions to be eligible for parole, and the fact that Ellenburg
was unhappy with the Board's basis for denial does not create a federal interest.
Swarthout, 562 U.S. at 222; Mont. Code Ann.§ 46-23-218(1) (2016).
By virtue
of the parole hearing itself, Ellenburg was provided with the minimal procedural
protections afforded to him under the Due Process Clause.
Consequently, a
hearing regarding the facts contained within Mr. Jess's affidavit is not warranted,
and the motions for an evidentiary hearing are denied.
Next, Ellenburg moves the Court to appoint counsel.
He asserts that
counsel is necessary so that he may present new facts and verify any claims that he
missed in his initial petition.
(Doc. 29 at 1.)
In federal habeas cases, counsel
must be appointed when the case is so complex that due process violations will
occur absent the presence of counsel, Bonin v. Vasquez, 999 F.2d 425, 428-429
(9th Cir. 1993) (discussing Chaney v. Lewis, 801F.2d1191, 1196 (9th Cir. 1986)
(per curiam)), or when an evidentiary hearing is required, Rule 8(c), Rules
Governing § 2254 Cases.
Counsel may be appointed at any stage of the
proceedings ifthe interests of justice so require.
18 U.S.C. § 3006A(a)(2)(B).
Under§ 3006A, the court must consider the likelihood of success on the merits, the
complexity of the legal issues involved, and the petitioner's ability to articulate his
claims prose.
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam).
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Here, the Court finds that Ellenburg' s case is not so complex that his right to
due process will be violated if counsel is not appointed.
This is not his first
habeas petition, and Judge Johnston has given him ample time to clarify and
present his claims.
(Docs. 3; 10; 10-2.)
As this Court has already concluded,
none of his claims warrant habeas relief.
Further, Ellenburg does not explain
what claims counsel could have assisted him with, but rather seeks counsel so that
his case file could be reviewed as a whole.
(Doc. 29 at 1.)
This is not a basis for
appointment of counsel, and the Court finds that Ellenburg has been proficient in
articulating his claims pro se.
Thus, he does not require counsel as a matter of
due process, and the Court declines to exercise its discretion to appoint counsel.
Next, Ellenburg moves the Court to set aside his remaining sentence.
32.)
(Doc.
In his supporting brief, he requests that the Court "stay and set aside
Petitioner's previous submission considering application of§ 46-18-208 MCA to
the case at bar and proceed on the merit[ s] of existing objections and consideration
of new evidence."
(Doc. 32 at 1.)
The Court has already addressed the merits of
Ellenburg's objections and finds that he has failed to establish a violation of his
constitutional rights.
Additionally, the Court will not impede on the Board's role
to determine when it is appropriate for a prisoner to be granted parole.
Court will not set aside Ellenburg's remaining sentence.
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Thus, the
Finally, Ellenburg has failed to make a substantial showing that he was
deprived of a constitutional right and thus a certificate of appealability is not
warranted.
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 19) are ADOPTED IN FULL.
Ellenburg's petition for writ of habeas
corpus (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that Ellenburg's motions for an evidentiary
hearing (Docs. 22; 23; and 26) are DENIED.
IT IS FURTHER ORDERED that Ellenburg's Motion to Appoint Counsel
(Doc. 29) is DENIED.
IT IS FURTHER ORDERED that Ellenburg's Motion to Set Aside Sentence
(Doc. 32) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment in favor of Respondents and against Petitioner.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
~
DATED this~ day of January, 2018.
Dana L. Christensen, Chief Judge
United States District Court
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