Opinion
Docket No. 27734.
Filed: August 19, 2002.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge; Hon. David C. Epis, Magistrate.
Order denying motion for appointment of counsel and summary judgment dismissing habeas corpus action, reversed, and case remanded.
Kenneth W. Quinlan, Boise, pro se appellant.
Hon. Alan G. Lance, Attorney General; Timothy R. McNeese, Deputy Attorney General, Boise, for respondent.
Kenneth Quinlan appeals from an order of the magistrate court denying his request for appointed counsel and from an order of summary judgment dismissing Quinlan's petition for a writ of habeas corpus. Because we conclude that the magistrate court erred in declining to appoint counsel to represent Quinlan in this action, we reverse.
I. BACKGROUND
Quinlan is serving an indeterminate life sentence following his 1973 conviction for second degree murder. He was paroled in 1985. Approximately four years later, as a consequence of Quinlan's second arrest for driving under the influence during the parole, his continuation on parole was conditioned on Quinlan waiving his driving privileges. In March 1991, his parole was revoked for missing prescribed Alcoholics Anonymous meetings, but he was reinstated on parole in December 1991. This second parole was revoked in 1994 for several reasons, including Quinlan's violation of the prohibition against driving. Following this second parole revocation, the Idaho Commission for Pardons and Parole "passed" Quinlan to his full term release date, i.e., they declined to schedule any future parole reconsideration hearing.
The matter of scheduling reconsideration hearings is committed to the discretion of the Parole Commission by Idaho Code § 20-223, which provides: "The Commission may also by its rules, policies or procedures fix the times and conditions under which any application denied may be reconsidered." At the time of Quinlan's crime and conviction, the Parole Commission's rules required a parole reconsideration hearing no less frequently than every thirty months. That rule was rescinded in 1987, however, and the rescission left the Parole Commission with no requirement at all for reconsideration hearings.
In May 1998, Quinlan filed in the magistrate division of the district court a petition for a writ of habeas corpus asserting two claims. First, he alleged that the revocation of his parole had been improper because it was based upon the violation of an unreasonable parole condition — that he not drive. Second, Quinlan alleged that, as applied to him, the rule rescission that eliminated the requirement of parole reconsideration hearings was a violation of the Ex Post Facto Clause of the United States Constitution. Quinlan also filed a motion for appointment of counsel to represent him in the habeas corpus action. The Parole Commission moved for summary judgment. The magistrate court denied Quinlan's request for appointed counsel and thereafter granted the Commission's summary judgment motion.
Quinlan appealed to the district court, which held that the magistrate court had committed a procedural error in denying Quinlan's request for counsel but also concluded that the error was harmless. The district court affirmed the magistrate's summary judgment decision. Quinlan again appeals.
II. DISCUSSION
We begin with Quinlan's contention that he was entitled to court-appointed counsel. There is no constitutional right to appointment of counsel in habeas corpus proceedings. See McCleskey v. Zant, 499 U.S. 467, 495 (1991). Cf. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (stating that there is no Sixth Amendment right to counsel for collateral attacks upon convictions; rather "the right to appointed counsel extends to the first appeal of right, and no further.") There is, however, an Idaho statute, I.C. § 19-852, that provides for the appointment of counsel in nonfrivolous habeas corpus actions. It states in part:
(a) A needy person who . . . is being detained under a conviction of, a serious crime, is entitled:
(1) to be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
. . . .
(b) A needy person who is entitled to be represented by an attorney under subsection (a) is entitled:
. . . .
(3) to be represented in any . . . post-conviction or post-commitment proceeding that the attorney or the needy person considers appropriate, unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense and is therefore a frivolous proceeding.
Because Quinlan is indigent and is being detained under a conviction of a serious crime, he is entitled to representation under this statute unless the proceeding is frivolous.
In Freeman v. State, 87 Idaho 170, 180, 392 P.2d 542, 548 (1964), the Idaho Supreme Court implied that a habeas corpus petitioner was entitled to appointment of counsel if "special circumstances" exist. To the extent that the Court was referring to a constitutional right, the decision has been overruled by McCleskey and Finley. To the extent that the Court was referring to a common law right, the decision has been superseded by I.C. § 19-852.
The procedures and standards for the trial court to follow in determining whether to appoint counsel under § 19-852(b)(3) were delineated by the Idaho Supreme Court in Brown v. State, 135 Idaho 676, 23 P.3d 138 (2001), a post-conviction action brought pursuant to I.C. § 19-4901, et seq. The Court stated that, when a trial court is of the view that appointment of counsel should be denied because a pro se petitioner has presented only frivolous claims, the petitioner should be given notice of the perceived defects in the petition so that he will have an opportunity to respond and supplement the petition before a request for counsel is refused. The Court stated:
It is essential that the petitioner be given adequate notice of the claimed defects so he has an opportunity to respond and to give the trial court an adequate basis for deciding the need for counsel based upon the merits of the claims. If the court decides that the claims in the petition are frivolous, the court should provide sufficient information regarding the basis for its ruling to enable the petitioner to supplement the request with the necessary additional facts, if they exist. Although the petitioner is not entitled to have counsel appointed in order to search the record for possible nonfrivolous claims, he should be provided with a meaningful opportunity to supplement the record and to renew his request for court-appointed counsel prior to the dismissal of his petition where, as here, he has alleged facts supporting some elements of a valid claim.
Brown, 135 Idaho at 679, 23 P.3d at 141.
The magistrate who ruled upon Quinlan's request did not have the benefit of the Brown decision and did not follow the procedure prescribed by Brown before denying Quinlan's motion for counsel. Therefore, there was procedural error in the denial of Quinlan's motion. This procedural error would not necessitate reversal, however, unless Quinlan's petition "has alleged facts supporting some elements of a valid claim." Id. Consequently, we must turn to the merits of Quinlan's allegations.
Quinlan first challenges the 1994 revocation of his parole on the ground that one of the parole conditions that he had violated was unreasonable. The prohibition against driving was unreasonable, he contends, because it made it impossible for him to comply with other parole conditions, such as maintaining employment and attending AA meetings.
Parole conditions must be reasonable and aimed toward rehabilitation. Mellinger v. Idaho Dep't of Corrections, 114 Idaho 494, 501, 757 P.2d 1213, 1220 (Ct.App. 1988). We conclude that Quinlan's challenged parole condition plainly met these requirements. Quinlan committed two DUIs during his first opportunity at parole. The "no driving" condition was added because of Quinlan's own misdeeds, to prevent him from committing further DUIs. The ban on driving therefore was reasonably related to Quinlan's rehabilitation. It follows that this aspect of Quinlan's habeas corpus petition was frivolous and did not warrant appointment of counsel.
The impediment to maintaining employment or complying with other parole conditions that may be caused by a parole term prohibiting driving generally can be relieved by the parolee finding a place of residence that is within walking or bicycling distance of the employment and other locations where the parolee is required to appear.
Quinlan's other alleged basis for habeas corpus relief, however, was more substantial. He alleged that the Parole Commission violated the Ex Post Facto Clause by applying to Quinlan the 1987 amendment to the Parole Commission rules, IDAPA 50.01.01, which rescinded the requirement that reconsideration hearings be conducted no less frequently than every thirty months.
Article I, § 10 of the United States Constitution prohibits states from enacting ex post facto laws. The Ex Post Facto Clause operates to prevent laws that criminalize conduct after the fact or increase the punishment for a crime after its commission. Lynce v. Mathis, 519 U.S. 433, 440-41 (1997); Collins v. Youngblood, 497 U.S. 37, 43 (1990); Miller v. Florida, 482 U.S. 423, 430 (1987); Mellinger, 114 Idaho at 498, 757 P.2d at 1217. According to Quinlan, the rule amendment constitutes an ex post facto law as to him because it has the effect of lengthening the punishment for his offense after it was committed. Quinlan points out that because the Parole Commission applied the amendment and elected to pass him over to his full-term release date, Quinlan will no longer receive reconsideration at least every thirty months but, rather, may never receive another parole reconsideration hearing before his sentence terminates upon his death.
In determining that Quinlan's claim was frivolous, the magistrate relied upon this Court's decision in Freeman v. Comm'n of Pardons Parole, 119 Idaho 692, 809 P.2d 1171 (Ct.App. 1991), where we upheld the constitutionality of the same rule amendment against an ex post facto challenge. Id. at 696-98, 809 P.2d at 1175-1177. In doing so, we relied upon federal court decisions holding that U.S. Parole Commission regulations are not "laws" within the meaning of the Ex Post Facto Clause. Id. at 697, 809 P.2d at 1176. This position has since been rejected, however, by the United States Supreme Court in Garner v. Jones, 529 U.S. 244 (2000). In that case, only one Justice adopted the position that retroactive application of rule changes made by a state parole board did not implicate the Ex Post Facto Clause. Id. at 257-59 (Scalia, J., concurring). The remaining members of the Court subjected the rule amendments to an ex post facto analysis. Consequently, a mere reference to our Freeman decision is inadequate to resolve Quinlan's claim.
Examination of recent United States Supreme Court decisions on this subject leads us to conclude that Quinlan's ex post facto allegations cannot be regarded as frivolous. The United States Supreme Court first addressed an ex post facto attack on laws governing the frequency of parole hearings in California Dep't of Corrections v. Morales, 514 U.S. 499 (1995). A California statute requiring annual reconsideration hearings had been amended to permit deferral of such hearings for as long as three years for inmates with multiple homicide convictions. Such a deferral was authorized if the Board of Prison Terms first made an express finding that it was not reasonable to expect that parole would be granted during the interim and stated the bases for the finding. Id. at 503 (citing Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)). The Supreme Court said that in conducting an ex post facto analysis of this amendment, the proper inquiry was whether the amendment created "a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. at 509. A change in the law that creates "only the most speculative and attenuated possibility" of increasing the severity of punishment, the Court said, does not violate the Ex Post Facto Clause. Id. The Court upheld application of the California amendment to inmates whose crimes preceded the amendment. Three factors supporting this decision were emphasized by the Court: (1) the amendment applied only to a class of prisoners for whom the likelihood of release on parole was quite remote; (2) the amendment did not alter the timing of any prisoner's initial parole hearing and affected the timing of subsequent hearings only if the Board specifically found it unreasonable to expect parole to be granted during the three-year interval; and (3) the parole board retained the authority to tailor the frequency of subsequent hearings to the particular circumstances of an individual prisoner. Id. at 510-11. The Court concluded, "In light of the particularized findings required under the amendment and the broad discretion given to the Board, the narrow class of prisoners covered by the amendment cannot reasonably expect that their prospects for early release on parole would be enhanced by the opportunity of annual hearings." Id. at 512.
Subsequently, in Jones, the Supreme Court analyzed a change to Georgia's parole rules that delayed parole reconsideration hearings for a limited class of inmates, those serving life sentences. The rule in place at the time of the petitioner's offense had mandated reconsideration hearings every three years but it was amended to allow an eight-year lapse between hearings for inmates serving life sentences. The Jones decision indicates that retroactive application of such a rule change reducing the frequency of parole hearings could violate the Ex Post Facto Clause either facially or as applied. The Court said that if "the rule does not by its own terms show a significant risk [of lengthening the petitioner's imprisonment], the [petitioner] must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule." Jones at 255. The Jones Court found no facial invalidity in the Georgia amendment, stressing two factors: (1) the parole board retained discretion as to how frequently to set an inmate's date for reconsideration, and (2) the statute permitted expedited parole reviews to consider a change in circumstances or new information. Id. at 254.
The Court then turned to the "as-applied" analysis, stating that the inquiry was whether, as applied to the petitioner's own sentence, the amendment created a significant risk of increasing his punishment. Id. at 255. On this point, the Court said, evidence regarding the general operation of the Georgia parole system may inform the analysis. Id. Specifically, the Court held that consideration had to be given to the parole board's policy statements and actual practices that revealed how the agency was exercising its discretion under the amended rule. After laying this framework for the inquiry, the Supreme Court remanded the case for the lower courts' consideration of whether the rule amendment, in its application to the petitioner, created a significant risk of increased punishment and whether the petitioner had been permitted sufficient discovery to make the as-applied showing. Id. at 257.
The change to the Parole Commission rules at issue in the present case resembles in some respects the amendments analyzed in Morales and Jones. The Idaho amendment is similar in that it does not alter the standards for parole eligibility or the date of the initial parole hearing, the Parole Commission retains discretion to schedule reconsideration hearings, and the Idaho rules provide a mechanism by which prisoners may seek reconsideration before their next scheduled parole hearing. Nevertheless, there are important distinctions between the amendment at issue here and those considered in Morales and Jones. First, the California and Georgia amendments decreased the frequency of parole reconsideration hearings only for a limited class of inmates who, due to the gravity of their crimes or the nature of their sentences, were among the least likely to be granted parole, whereas our Parole Commission's rescission of its reconsideration rule affects the entire prison population. Second, in Morales and Jones the law as amended still specified a maximum interval between reconsideration hearings, whereas rescission of the Idaho rule left the Parole Commission with no requirement to ever again conduct a hearing after an inmate has been initially denied parole. Third, unlike the parole board in Morales, our Parole Commission is not required to make any findings nor provide any explanation for its decision to defer reconsideration for a lengthy period, which may extend to the duration of a life sentence.
An inmate who has been denied parole may request a reconsideration hearing by filing a petition not more frequently than once every twelve months. IDAPA 50.01.01.500 et seq.
Petitions are reviewed by the Parole Commission in executive session. IDAPA 50.01.01.500.01.h. The rules do not require the Parole Commission to give an inmate any explanation for refusing to grant a hearing. Quinlan alleges that he has filed two such petitions which were denied without comment.
The record before us does not indicate whether the Parole Commission has informally adopted any criteria for determining whether or when a reconsideration hearing should be conducted.
The magistrate who ruled on Quinlan's habeas corpus petition and his request for appointed counsel did not have the benefit of the Jones decision. The magistrate relied upon the Freeman rationale, which Jones now establishes to be erroneous. When Jones and Morales are considered, it is apparent that Quinlan's claim raises complex issues as to whether the amendment of the Parole Commission's rules may be facially unconstitutional or may be unconstitutional as applied to Quinlan. The Jones decision's requirement that attention be given not just to formally adopted rules but also to informal policies and practices of the parole-granting body, and the decision's call for an individualized as-applied analysis even where retroactive application of an amendment is not facially unconstitutional, point toward factual inquiries that may necessitate discovery.
Quinlan's claim is not frivolous, and he consequently was entitled to court-appointed counsel pursuant to I.C. § 19-852. There should be no disposition of his petition without Quinlan having received the aid of an attorney. Therefore, the summary judgment dismissing Quinlan's habeas corpus action must be set aside and counsel appointed to represent him on remand.
We reverse the appellate decision of the district court, which affirmed the magistrate court's orders denying Quinlan's motion for appointed counsel and dismissing Quinlan's action. This case is remanded to the magistrate division for further proceedings, specifically to include appointment of counsel to represent Quinlan.
Chief Judge PERRY and Judge GUTIERREZ CONCUR.