Kenneth W. Quinlan (“Quinlan”), acting pro se, appeals from an order of the magistrate court denying his request for appointed counsel and from a summary judgment order dismissing his petition for a writ of habeas corpus. This ease raises two major issues: (1) whether there is a right to counsel in Idaho’s habeas proceedings created by statute; and (2) whether revision of the guidelines for parole reconsideration, eliminating mandatory hearings, constitutes an Ex Post Facto Clause violation. 1
I.
FACTUAL AND PROCEDURAL 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, Quinlan was arrested for driving under the influence while on parole. Continuation on parole was conditioned on Quinlan waiving his driving privileges. In March 1991, Quinlan’s parole was revoked for missing prescribed alcoholics anonymous meetings, but he was reinstated on parole in December 1991. Parole was revoked in 1994 for several reasons, including Quinlan’s violation of the prohibition against driving. Following the second parole revocation, the Idaho Commission for Pardons and Parole (“Parole Commission”) “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(c), 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 That rule was rescinded in 1987, however, and the rescission left the Parole Commission with no requirement for reconsideration hearings.
In May 1998, Quinlan filed in the magistrate division of the district court a petition for writ of habeas corpus asserting several claims. Among his claims, Quinlan alleged that the revocation of his parole had been improper because it was based on the violation of an unreasonable parole condition— that he not drive. Quinlan also alleged that, as applied to him, the rule rescission eliminating the requirement of parole reconsideration hearings was a violation of the Ex Post Facto Clause of the United States Constitution. Quinlan then filed a motion for appointment of counsel to represent him in the habeas corpus action. The Parole Commission moved for summary judgment. The magistrate judge denied Quinlan’s request for appointed counsel and thereafter denied habeas relief.
Quinlan appealed to the district court. The district court upheld the summary judgment decision, holding that the magistrate judge had committed a procedural error in denying Quinlan’s request for counsel, but that such error was harmless. On further appeal, the Court of Appeals reversed the district court, concluding it was error to refuse to appoint counsel for Quinlan’s habeas corpus action. The Court of Appeals also found the lower courts had made analytical errors regarding Quinlan’s
ex post facto
claim, and consequently remanded the issue to the magistrate judge. The State filed a
II.
STANDARD OF REVIEW
Our review of this case is on two levels. First, we review the lower court’s summary judgment decision regarding the statutory right to counsel. And second, we review the denial of Quinlan’s petition for writ of habeas corpus.
Habeas proceedings are civil in nature, and generally the rules of civil procedure apply.
See
I.C. § 19-4208;
Lopez v. State,
For a case on review from the Court of Appeals, we review the trial court’s decision directly, albeit serious consideration is given to the Court of Appeals decision.
State v. Dana,
Finally, we examine whether the magistrate judge abused his discretion in dismissing Quinlan’s petition for writ of habeas corpus. Whether to issue such a writ is a matter within the discretion of the trial court.
Johnson v. State,
III.
DISCUSSION
Quinlan raises three issues on appeal. We hold that summary judgment was properly granted against' Quinlan on the right to counsel and parole condition issues. We also affirm the denial of relief based on the ex post facto habeas claim.
A. There is no mandatory statutory right to counsel in habeas corpus proceedings.
Quinlan contends that he was entitled to court-appointed counsel to defend against
While the Court of Appeals relied on
Brown v. State,
Quinlan does not have a UPCPA statutory right to counsel in a habeas proceeding. The habeas statute is clear: “Habeas corpus shall not be used as a substitute for, or in addition to, a direct appeal of a criminal conviction or proceedings under Idaho criminal rule 35 or the uniform post-conviction procedures act, chapter 49, title 19, Idaho Code, and the statutes of limitations imposed therein.” I.C. § 19-4203(4) (emphasis added). Quinlan cannot now seek appointment of counsel in a habeas proceeding and claim the benefit of the UPCPA’s right to counsel provision.
Quinlan argues that I.C. § 19-852 requires appointment of counsel in non-frivolous habeas cases. A habeas proceeding is a civil action. I.C. § 19-4208. By its own terms, I.C. § 19-852 applies only to criminal and commitment proceedings, not civil actions such as habeas proceedings. Habeas corpus is governed by its own statutory framework set forth in I.C. §§ 19—4201— 4236, in which there is no requirement for mandatory appointment of counsel in habeas proceedings. Moreover, I.C. § 19-4224, provides that “[t]his chapter sets forth the exclusive procedures and remedies in habeas corpus actions.” (Emphasis added). Therefore, I.C. § 19-852 does not apply to habeas corpus actions and there is no basis for appointment of counsel. Consequently, the magistrate judge was correct in denying Quinlan’s request for counsel.
B. There is no Ex Post Facto Clause violation where the Parole Commission’s rule change did not alter the terms and conditions under which Quinlan was incarcerated.
Quinlan raises the issue of whether the change in parole reconsideration rules constitutes an
ex post facto
violation entitling him to habeas relief.
2
One function of the
Ex Post Facto
Clause is to bar laws which, by retroactive operation, increase the punishment for a crime after its commission.
Collins v. Youngblood,
1. The Ex Post Facto Clause
At the time Quinlan was convicted of second-degree murder and placed in the custody of the state Board of Corrections in 1973, the Parole Commission had in effect a rule requiring parole consideration to be conducted no less frequently than every thirty months.
See Izatt v. State,
2. Parole commission rules are “laws” for purposes of the Ex Post Facto Clause.
Because Quinlan has challenged the Parole Commission rules amendments only under the United States Constitution, rather than the Idaho Constitution, we will apply United States Supreme Court precedent to the issue of whether the Ex Post Facto Clause applies to parole rule changes. 3
In
Garner v. Jones,
3. The “Sufficient Risk” Test
Not every retroactive procedural change creating a risk of affecting an inmate’s terms or conditions of confinement is prohibited.
California Dep’t of Corrections v. Morales,
In
Morales,
the amended California law did not violate the “sufficient risk” standard because it did not modify the statutory punishment imposed for any particular offenses.
Id.
at 507,
In applying the “sufficient risk” test, the
Garner
Court indicated the analysis must take into account whether a rule change violates the
Ex Post Facto
Clause either facially or as applied. As noted above, a key factor in finding no facial invalidity in the Georgia rule change was the fact that the inmate retained the ability to request expedited reviews to consider a change in circumstances or new information.
Garner,
4. The parole reconsideration rules as applied to Quinlan do not violate the Ex Post Facto Clause of the United States Constitution.
It is important to understand what has not changed under the Parole Commission’s amendment to parole reconsideration rules. The amendment 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. Moreover, the Idaho rules provide a mechanism — the Self-Initiated Progress Report (“SIPR”) — by which inmates may seek reconsideration before their next scheduled parole hearing.
5
IDA-PA 50.01.01, Section 500. The SIPR is available for review on an annual basis. IDAPA 50.01.01, Paragraph 500.01.d. Even with the elimination of a mandatory reconsideration hearing, the Idaho rules retain many of the safeguards the
Garner
and
Morales
courts listed as important in overcoming an
ex post facto
challenge.
See Garner,
Quinlan has no right to parole. Quinlan’s argument that the Parole Commission has exercised its discretion to change the way in which parole is considered is really no different than complaining that the Parole Commission failed to grant parole when Quinlan felt parole was warranted. It is not for Quinlan, nor for this Court, to exercise the Parole Commission’s discretionary role of granting or denying parole.
See Malloroy v. State,
C. The no-driving condition on Quinlan’s parole was reasonable.
Finally, Quinlan claims the denial of all driving privileges was an unreasonable condition of parole. Conditions on an inmate’s parole must be reasonable and aimed toward rehabilitation.
Mellinger v. Idaho Dept. of Corrections,
IV.
CONCLUSION
We hold that prison inmates do not have a statutory right of mandatory counsel in habeas corpus proceedings. We further hold that the Parole Commission’s rule changes do not violate the Ex Post Facto Clause. Accordingly, we affirm the magistrate judge, and we agree with the lower court that the no-driving parole condition was reasonable.
Notes
. Though he does not fully articulate it, Quinlan blends a separation of powers argument together with the ex post facto argument. The gist of Quinlan’s argument on this point is more an observation that separation of powers may be violated; however, he does not cite authority for this claim, and therefore we will not consider it.
. Habeas corpus relief is available for constitutional violations involving parole. See I.C. § 19-4213 (making habeas relief applicable to parole revocation); I.C. § 19-4217 (outlining appropriate habeas relief available to prisoners).
. The magistrate court held that there was no ex post facto violation because parole regulations are not "laws” within the meaning of the Ex Post Facto Clause. For the reasons discussed hereafter, the United States Supreme Court has rejected that approach.
. In Morales there was no question whether a "law” was involved, because a statute — not a parole commission rule — was the subject of the change.
. Since having his parole revoked, Quinlan has submitted two SIPR’s seeking reinstatement of parole. Both SIPR's have been denied without comment.