Wiese v. State, No. C 00-0112-MWB (N.D. Iowa 9/19/2002)
| Decision Date | 19 September 2002 |
| Docket Number | No. C 00-0112-MWB.,C 00-0112-MWB. |
| Parties | BYRON DONALD WIESE, Petitioner, v. STATE OF IOWA,<SMALL><SUP>1</SUP></SMALL> Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
This matter comes before the court pursuant to the July 23, 2002, Amended Report and Recommendation filed by Magistrate Judge Paul A. Zoss concerning petitioner Byron Donald Wiese's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Judge Zoss recommends that the court grant the respondent's motion to dismiss Wiese's petition. Wiese's counsel filed objections to the Report and Recommendation on July 25, 2002, and Wiese filed a "Pro Se Amendment To Petitioner's Objections To Report And Recommendation On Motion To Dismiss" on August 2, 2002.
On October 13, 1998, pursuant to a plea agreement, Wiese pleaded guilty to charges of bribery and a third offense of operating a motor vehicle while intoxicated (OWI). Pursuant to the plea agreement, other charges against Wiese were dropped, and he was sentenced to the Larry Nelson Center rather than prison. However, in March 1999, in the course of disciplinary proceedings arising from Wiese's failure to provide a urine sample, an administrative law judge (ALJ) allegedly "resentenced" Wiese to prison upon the ALJ's finding that Wiese's original sentence to a treatment center was "illegal," because his bribery conviction made him ineligible for placement in a treatment center. After various attempts to pursue state remedies for what Wiese alleges was his improper "resentencing" by the ALJ, Wiese filed his pro se application to proceed in forma pauperis on a petition for federal habeas corpus relief in this matter on July 10, 2000.
By order dated December 1, 2000, upon initial review of Wiese's in forma pauperis application and petition for habeas relief, Judge Zoss appointed counsel for Wiese and directed counsel to assist Wiese in filing an amended petition. However, counsel filed a status report on January 18, 2001, notifying the court that counsel believed that any possible claims Wiese might have were procedurally defaulted, unexhausted, and/or without merit. Judge Zoss filed a Report and Recommendation in this case on March 1, 2001, recommending that the court dismiss the petition without prejudice.
The undersigned took a different view. By order dated July 25, 2001, the undersigned rejected the March 1, 2001, Report and Recommendation, based on the undersigned's conclusion that both Judge Zoss and Wiese's own habeas counsel had misconstrued Wiese's claims for relief. Based on the undersigned's reading of Wiese's original petition and various other filings, the undersigned concluded that the focus of Wiese's petition was an attempt to plead unconstitutional conduct of the ALJ in "resentencing" Wiese to prison instead of a treatment center as contemplated by Wiese's plea agreement and the order of the sentencing judge in state court. Therefore, the undersigned referred this matter back to Judge Zoss, directing that Judge Zoss, inter alia, determine whether or not new counsel should be appointed to represent Wiese in this matter; specify the time within which Wiese would be required to file a second amended petition, with the assistance of counsel; and determine whether an answer by the respondent should be required to such second amended petition.
By order dated July 31, 2001, Judge Zoss appointed new counsel to represent Wiese in this matter and directed that Wiese file, with the assistance of new counsel, a second amended petition. On August 24, 2001, Wiese completed his sentence and was released from custody. Nevertheless, after various extensions, Wiese filed a Second Amended Petition for Writ of Habeas Corpus on November 9, 2001.
As characterized by Judge Zoss in his Report and Recommendation, without objection from either Wiese or his counsel, Wiese's claims for relief in his Second Amended Petition are the following: (1) failure of trial counsel to advise Wiese that a bribery conviction would make him ineligible to be sentenced to the Larry Nelson Center, which was the only reason he agreed to enter a guilty plea; (2) violation of procedural and substantive due process rights in connection with the administrative hearing concerning his failure to provide a urine sample, which led to his "resentencing" to prison; (3) denial of his right to counsel during the administrative hearing, which Wiese alleges "was a criminal proceeding and not an administrative proceeding"; (4) and ineffective assistance of appellate counsel in failing to order a transcript of the administrative hearing or his sentencing and failing to advise the Iowa Supreme Court fully of the nature of Wiese's claims for relief. As a result of these various violations of his constitutional rights, Wiese alleges that he was required to serve his sentence in prison instead of in a treatment center, as contemplated by his plea agreement, and as ordered by the state district court judge who originally sentenced him.
Upon initial review on November 19, 2001, Judge Zoss directed that the respondent answer the Second Amended Petition or file a dispositive motion not later than December 28, 2001. Following an extension of time to do so, the respondent filed a motion to dismiss on January 4, 2002, asserting, inter alia, that Wiese's claims were mooted by his release from custody. Wiese resisted the motion to dismiss, after an extension of time to do so, on January 30, 2002.
In an Amended Report and Recommendation, filed on July 23, 2002, Judge Zoss addressed the respondent's motion to dismiss. Judge Zoss concluded that Wiese's claim of ineffective assistance of counsel was dismissed on independent and adequate state-law grounds, to the extent that it had been presented to the Iowa state courts, and to the extent it had not been so presented, it had not been exhausted. Moreover, Judge Zoss concluded that whether or not Wiese's trial counsel advised him effectively concerning the consequences of his guilty plea was an issue that was not impacted at all by whether or not the ALJ exceeded her authority in transferring Wiese from the Larry Nelson Center to prison.
As to the remaining claims for relief, Judge Zoss found that Wiese had been released from custody, and that he "has not raised the possible impairment of a hypothetical 1983 action as a collateral consequence if he is not allowed to proceed with this habeas action." Amended Report and Recommendation, 8. As a consequence of this omission, Judge Zoss concluded that the continued viability of Leonard v. Nix, 55 F.3d 370 (8th Cir. 1995), in light of Spencer v. Kemna, 523 U.S. 1 (1998), was "irrelevant to what the court must decide here." Id. Rather, Judge Zoss concluded that the "collateral consequences" within the meaning of Leonard upon which Wiese had relied, loss of his right to vote and right to bear arms, related solely to his conviction, not the ALJ's actions. Judge Zoss concluded that Wiese has asserted no collateral consequences arising from the fact that he was required to serve his sentence in prison rather than in a treatment center and that Wiese's petition was, therefore, moot. Judge Zoss also concluded that Wiese had failed to demonstrate that he met any of the other exceptions to the general mootness doctrine described in Hohn v. United States, 262 F.3d 811 (8th Cir. 2001), petition for cert. filed, 70 U.S.L.W. 3581 (March 5, 2002) (No. 01-1340). Judge Zoss recommends that respondent's motion to dismiss be granted, and that Wiese be denied a certificate of appealability, because he has not raised issues that might constitute a substantial showing that he was deprived of a constitutional right.
Wiese's counsel filed objections to the Amended Report and Recommendation on July 25, 2002. Wiese also filed pro se objections, styled as an "amendment" to counsel's objections, on August 2, 2002. Therefore, the Amended Report and Recommendation and objections to it are now fully submitted for the undersigned's consideration.
The standard of review to be applied by the district court to a report and recommendation of a magistrate judge is established by statute:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].
28 U.S.C. § 636(b)(1). The Eighth Circuit Court of Appeals has repeatedly held that it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge's report where such review is required. See, e.g., Hosna v. Groose, 80 F.3d 298, 306 (8th Cir.) (citing 28 U.S.C. § 636(b)(1)), cert. denied, 519 U.S. 860 (1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (citing Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994)); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (also citing Belk). However, the plain language of the statute governing review provides only for de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Therefore, portions of the proposed findings or recommendations to which no objections are filed are reviewed only for "plain error." See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (). The court finds that de novo review of certain portions of Judge Zoss's Amended Report and Recommendation is...
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