Drennon v. Craven, 29205.

• Decision Date: 20 August 2004
• Docket Number: No. 29205.,29205.
• Citation: 141 Idaho 34,105 P.3d 694
• Parties: Richard DRENNON, Petitioner-Appellant, v. Olivia CRAVEN, Respondent.
• Court: Idaho Court of Appeals

105 P.3d 694

141 Idaho 34

Richard DRENNON, Petitioner-Appellant, v. Olivia CRAVEN, Respondent.

No. 29205.

Court of Appeals of Idaho.

August 20, 2004.

Rehearing Denied October 1, 2004.

Richard Drennon, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Timothy R. McNeese, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Judge.

Richard Drennon appeals pro se from the district court's memorandum decision and order dismissing his petition for a writ of habeas corpus and denying his motion for appointment of counsel. He also appeals from the district court's order denying his motion for reconsideration. We affirm in part and reverse in part, remanding for further proceedings on the retaliation claim made in Drennon's habeas corpus petition.

I. BACKGROUND

Drennon, an inmate at the Idaho Maximum Security Institution, was denied parole in July 1999. Following the denial, Drennon petitioned for a writ of habeas corpus, as against the Idaho Commission of Pardons and Parole through its Executive Director, Olivia Craven. Craven moved for summary judgment. Drennon moved for appointment of counsel. The district court held Drennon's motion for appointment of counsel in abeyance and held a hearing on Craven's motion for summary judgment. Following the hearing, the district court issued a "memorandum decision and order" granting Craven's motion for summary judgment, dismissing Drennon's habeas corpus petition, and effectively denying Drennon's motion for appointment of counsel by deeming it moot. Drennon then filed a motion under I.R.C.P. 59(e) for reconsideration of the memorandum decision and order, which the district court denied.

Drennon appeals, challenging the district court's grant of summary judgment, its denial of his motion for appointment of counsel, and its denial of his motion to reconsider.

II. ANALYSIS

A. Habeas Corpus

Drennon challenges the district court's dismissal of his habeas corpus petition. Because his petition stems from the parole commission's denial of parole, we are mindful of several, interacting standards of review in this case. First, the parole commission has broad discretion in making its parole decisions. Ybarra v. Dermitt, 104 Idaho 150, 151, 657 P.2d 14, 15 (1983). Second, generally when a court reviews a parole decision, its inquiry is only whether there is a rational basis in the record for the commission's conclusions — not whether the determination is supported by the preponderance of the evidence, or even by substantial evidence. Id. at 151, 657 P.2d at 15. Third, the decision to issue a writ of habeas corpus is within the trial court's discretion. Hays v. State, 132 Idaho 516, 518, 975 P.2d 1181, 1183 (Ct.App.1999).

Finally, this Court, in an appeal from a summary judgment dismissing a habeas corpus petition, is bound by the same standard of review as the trial court. Freeman v. Idaho Dep't of Corr., 138 Idaho 872, 875, 71 P.3d 471, 474 (Ct.App.2003). Summary judgment under I.R.C.P. 56(c) is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hays, 132 Idaho at 519, 975 P.2d at 1184. When assessing summary judgment on a habeas corpus petition, we treat all uncontroverted allegations in the petition as true, and we liberally construe all controverted facts and draw all reasonable inferences in favor of the nonmoving party. See id.; Freeman, 138 Idaho at 875,

71 P.3d at 474.

Drennon's claims in his petition for writ of habeas corpus fall into four categories. (1) Drennon claims he was denied access to the materials the parole commission considered in making its parole determination. (2) Drennon claims he was not afforded full consideration of the favorable information he presented to the commission. (3) Drennon claims the parole commission based its decision on false and inaccurate information. (4) Drennon claims the commission denied him parole in retaliation for his activities as an inmate litigator. All of this alleged conduct, Drennon claims, violated constitutional and other rights that he is entitled to as a prisoner.

Drennon correctly acknowledges that in Idaho there is no protected liberty interest in parole. His acknowledgment directly recognizes — and it has long been settled — that the possibility of parole is not protected by due process and that inmates have no constitutional right to due process in parole hearings. See Izatt v. State, 104 Idaho 597, 600-601, 661 P.2d 763, 766-767 (1983)

; Hays v. Craven, 131 Idaho 761, 764, 963 P.2d 1198, 1201 (Ct.App.1998); Vittone v. State, 114 Idaho 618, 619, 759 P.2d 909, 910 (Ct.App.1988). Rather, Drennon appears to make an argument that the parole commission's conduct violated the commission's own rules, found at IDAPA 50.01.01 et seq., and the provisions of Idaho's parole statute, I.C. § 20-223. Drennon contends that he has "a right to a `fair consideration' for parole, based upon a `fair and accurate' record relied upon by the commission during their `consideration' for parole eligibility."

1. Drennon's access to the commission's materials

Drennon contends that he should have had an opportunity to review and rebut the I.C. § 20-223(b) psychological evaluation of him prepared for the commission. Idaho Code § 20-223(c) expressly provides, however, that designated reports prepared specifically for the commission's use in making a parole determination — including those that contain psychological information — shall be exempt from public disclosure. Furthermore, in support of his argument on this issue Drennon has cited only overruled authority and cases involving protected liberty interests.¹ Again, parole is not a protected liberty interest under Idaho's correctional scheme. Therefore, as a matter of law, Drennon has failed to show that he is entitled to review or rebut his I.C. § 20-223(b) psychological evaluation. Drennon likewise claims that he has a right to review and challenge all the other materials that the commission considered in making its parole determination. He relies here exclusively on the same case law involving situations where inmates are entitled to due process. While inmates may have a right to due process in certain proceedings, such as sentencing, probation, and parole revocation, when being considered for parole release inmates are due only the processes set out by the parole statute and the parole commission's rules. As with the psychological report, Drennon has not shown that either I.C. § 20-223 or the commission's rules entitle him to review any of the other materials the commission considers.

2. The commission's consideration of Drennon's information

Drennon prepared a packet of information that he wanted the commission to consider before making its parole decision. Drennon contends that he was denied the opportunity to present this packet to the commission. He alleges, for one thing, that IDOC officials refused to photocopy the packet and mail it to the commission. In his habeas corpus petition, though, Drennon named as a party neither IDOC nor any of its officials. Rather, he named only Olivia Craven, executive director of the Commission of Pardons and Parole. So, even assuming Drennon is entitled to relief on his claims concerning the IDOC officials' alleged conduct, the district court could not have entered a binding order granting that relief. We therefore will not address the merits of Drennon's claims against IDOC officials.

Drennon also claims that, when he finally presented the packet to the commission, the commission improperly refused to accept it. The Idaho parole statute, I.C. § 20-223, requires the commission to afford an inmate under consideration for parole the opportunity to be interviewed by someone from the commission. However, Drennon has not identified any statutory provision requiring the commission to accept or consider documents that an inmate submits. If such a requirement does exist, then it must arise from the commission's own rules. The commission has a rule regarding submission of written documents in parole considerations. See IDAPA 50.01.01.200.06.b. That rule provides that "[a]ll written documents and letters to be considered at a particular hearing must be submitted seven (7) days in advance of the hearing in order to ensure that it [sic] will be considered; other documents may be allowed by unanimous consent of the commissioners present." IDAPA 50.01.01.200.06.b.

Drennon did not present his information packet to the commission until his hearing began. The commission could have chosen to review the packet at that time, but by its own rules, it did not have to because Drennon had not submitted his materials seven days in advance. Indeed, in the minutes of Drennon's parole hearing the commission stated that it chose not to consider Drennon's packet because it did not have time to adequately review it. Drennon has failed to show, therefore, that the commission violated either its own rules or I.C. § 20-223.

Drennon also alleges that the parole commission refused to consider the numerous rehabilitative programs he completed while in prison. As we have said, the parole commission has broad discretion in making parole determinations, and its decisions often involve no more than informed predictions about what would best serve correctional purposes or the inmate's safety and welfare. Vittone, 114 Idaho at 620, 759 P.2d at 911; see also I.C. § 20-223(c). The commission's rules state that the commission "allows for parole consideration criteria," but that "no prediction regarding the granting of parole can be based upon any hearing standard or criteria." IDAPA 50.01.01.250.01.c. Even assuming Drennon's allegation is true, there is no legal basis for a material factual dispute on this claim.

3. The commission's alleged use of fabricated and inaccurate information

Drennon alleges that the commission based its parole decision on "inaccurate, fabricated...