The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Respondent's Motion for Summary Dismissal. (Dkt. 34.) The Motion is now fully briefed, with a Response, Reply, and Sur-reply. (Dkt. 38, 39, 40.) Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 6, 11.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having fully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument.
Therefore, the Court will decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.
Petitioner Terrence Matthews is proceeding on his Second Amended Petition. (Dkt. 26.) This Petition concerns only parole issues, rather than conviction and sentencing issues, which were addressed by the Court in a prior proceeding, not relevant here. For clarification purposes, however, the Court briefly reviews the entire history of Petitioner's state and federal court proceedings.
1. Trial, Direct Appeal, and Post-Conviction re: Convictions and Sentences
Petitioner was convicted of two counts of lewd conduct with a minor and two counts of sexual abuse of a minor after a jury trial in the Third Judicial District Court in Gem County, Idaho. (State's Lodging A-1, p.40.) He was sentenced to four concurrent sentences of five years fixed, followed by ten years indeterminate. (Id., pp. 40-41.)
Petitioner filed a direct appeal challenging his convictions and sentences, which was heard by the Idaho Court of Appeals. State v. Matthews, 864 P.2d 644 (Idaho Ct. App. 1993). Petitioner next filed an application for post-conviction relief, which was denied by the state district court. On appeal, the Idaho Court of Appeals affirmed the denial of the post-conviction application. Matthews v. State, 936 P.2d 682 (Idaho Ct. App. 1997).
2. Prior Federal Habeas Corpus Petition
Petitioner filed a federal habeas corpus petition challenging his convictions, which was dismissed without prejudice for failure to exhaust state court remedies. Case No. 3:5-cv-00237-EJL, Matthews v. Hope. Dismissal of that case was affirmed by Matthews v. Hope, 152 F.3d 927, 1998 WL 382758 (9th Cir. 1998) (unpublished).
Another federal habeas corpus petition, Case No. 1:07-cv-00253-BLW, Matthews v. Spaulding, was dismissed with prejudice on March 17, 2000, and a certificate of appealability was denied. Petitioner filed a third federal habeas corpus petition, Case No. 1:00-cv-00123-EJL, Matthews v. Spaulding, on March 7, 2000, which was dismissed for failure to obtain authorization from the United States Court of Appeals for the Ninth Circuit. When Petitioner sought authorization, it was denied.
3. Parole Violations and Revocations
Petitioner was first released on parole in October 1996, and completed approximately five years on parole, but his parole was revoked in February 2002, as a result of violations. (State's Lodging A-1, p.122.) Petitioner was placed on parole again in May 2002, with specific parole restrictions and conditions. (State's Lodging A-1, pp. 43-46.)
Petitioner believed that his parole was progressing well, but, after three years, in July 2005, he was assigned a new parole officer, Chris Colson, who required Petitioner to take a polygraph examination on August 1, 2005. Four days later, on August 4, 2005, Colson issued a parole violation report, with recommendations that parole be revoked, that time spent on parole be forfeited, and that Petitioner be returned to prison to serve the duration of his sentence. (State's Lodging A-1, pp. 59-65.) The list of parole violations included the following: (1) failing to submit monthly reports; (2) failing to follow the instructions of his parole officer; (3) leaving his assigned district without written permission; (4) failing to remain alcohol and drug free; (5) frequenting establishments where alcohol is the main source of income; (6) failing to obtain a substance abuse evaluation; (7) failing to comply with sex offender treatment; and (8) associating with minor children without approved supervision. (Id.)
A preliminary hearing before Parole Officer Andy Martin was held on August 16, 2005, after twice being continued at Petitioner's request, with Petitioner represented by attorney Bob Pangburn. (State's Lodging A-1, p.80-83.) At the conclusion of the hearing, the hearing officer issued a preliminary hearing report finding probable cause as to all of the allegations. (Id.)
Petitioner had an evidentiary parole violation hearing before Hearing Officer Juanita Hutchison, on October 21, 2005, after being continued twice on Petitioner's request, just as with the prior hearing. (State's Lodging A-1, p.92, et seq.) Petitioner was represented by counsel at the hearing and had an opportunity to cross-examine several witnesses, including two ex-girlfriends, Judy Walsberg and Barbara Stott, who testified about facts supporting numerous violations. (Id.) The hearing officer did not issue a decision within the 20-day time period provided by Idaho Code § 20-229B.
Rather, several months later, on January 3, 2006, the hearing officer issued a written decision, finding that Petitioner had committed violations for charges (1) through (5) and (7) through (8) because he had unauthorized contact with minor children, frequented places where minors congregate, used the Internet without permission, failed to inform an employer of his criminal convictions, left the state and the supervising district without permission, went to places where alcohol was served, failed to comply with sex offender treatment, changed residences without permission, and failed to submit monthly reports to his parole officer. (Id.)
Petitioner was found innocent of charge (6), failing to obtain a substance abuse evaluation. (Id.) Based on the violations, the hearing officer recommended to the Idaho Commission of Pardons and Parole that parole be revoked. Petitioner received a copy of the hearing officer's decision on January 25, 2006. (Id.)
A final disposition hearing commenced March 15, 2006, but could not be completed until April 13, 2006, because Petitioner "became hysterical and could not control his emotions." (State's Lodging A-1, pp. 124-26.) Petitioner was represented by attorney Anita Warrant at the first disposition hearing, and Bob Pangburn at the second.
Two of the same adverse witnesses, ex-girlfriends Judy Walsberg and Barbara Stott, who testified at the evidentiary parole violation hearing of October 21, 2005, testified at both final parole hearings, but Petitioner was not permitted to cross-examine them at the second hearing. At the conclusion of the hearing, the Parole Commission elected to adopt the hearing officer's findings from the parole violation hearing; revoke Matthews' parole; pass him to his full-term release date; grant him credit for parole from May 9, 2002, through July 6, 2002, for the time he had been incarcerated awaiting the parole hearing (59 days); and forfeit his remaining time on parole from July 7, 2002, through July 29, 2006 (1,118 days). (State's Lodging A-1, pp. 128-36.)*fn1 The Parole Commission specifically stated that it did not rely on testimony given at the second hearing in deciding to revoke parole, but relied solely on Hearing Officer Juanita Hutchison's findings. ((State's Lodging C-7, p. 2.)
After revocation, Petitioner filed numerous administrative appeals, self-initiated progress reports (SIPR), and civil actions, all challenging his parole violations and revocation.
4. First State Habeas Corpus Action Challenging Parole Revocation
On October 30, 2006, Petitioner filed a pro se state habeas corpus petition challenging the Parole Commission's decision to revoke his parole and require forfeiture of his parole time. (State's Lodging A-1, pp. 1-30.) The State responded and requested summary judgment. With the assistance of a new attorney, Robert Van Idour, Petitioner responded to the state's motion for summary judgment. Magistrate Judge Randall Robinson granted the State's motion and dismissed the petition. (Id., pp. 173-97.)
Petitioner appealed the magistrate judge's decision to the state district court, raising only three issues: "(1) Did the Magistrate commit error in finding that sufficient evidence existed to support the findings of fact of the Department of Corrections in this case?; (2) Did the Magistrate properly apply the standards for summary judgment in this case?; and
(3) Did the procedures used by the Department of Corrections in this case violate the Appellant's rights to due process of law?" (State's Lodging A-1, pp. 200-09.) After reviewing the parties briefing, Idaho District Judge John Bradbury disagreed with Petitioner' position that he was entitled to an evidentiary hearing to demonstrate that the Parole Commission abused its discretion, and Judge Bradbury affirmed Magistrate Judge Robinson's dismissal of the habeas corpus petition. (Id., pp. 225-31.)
Petitioner filed an appeal challenging the district court's decision, which was assigned to the Idaho Court of Appeals. (State's Lodging A-1, pp. 232-36.) On appeal, Petitioner raised the following issues in his pro se opening brief: "(1) Did the courts avoid addressing Petitioner's allegations on his Writ of Habeas Corpus in arguing the violations?; (2) Did the courts avoid petitioner's allegations that the petitioner was already being punished and sanctioned for every violation in the parole officers' report?; (3) Was petitioner denied due process when one of the very few statutes that the commission 'shall' do, fail to give a decision within 20 days and lie about it?; (4) Was the petitioner denied due process and his constitutional rights to confrontation and cross-examination under the 8th and 14th Amendments, at his revocation hearing dated April 15, 2006? (Including cross-examination issues at all stages of his revocation process); (5) Was the commission denying petitioner due process, double jeopardy in extending his sentence by the judge to not exceed 15 years; September 9th, 2006, where no new crimes, absconding, accusations, even dirty UA nor even a misdemeanor?); (6) Should the commission record all hearings so petitioner can correctly address issues, instead of trying to remember what testimony was given? (Rule 5(c)); (7) Was petitioner denied 6th amendment right of effective assistance of counsel, when his attorney refused to communicate with petitioner, send him briefs requested, especially when counsel doesn't contact the petitioner until March 5th, 2008, the day before the petitioner's tolling, and still not get the requested briefs filed?; (8) Was the petitioner entitled to an evidentiary hearing?; and (9) Did the magistrate violate federal habeas corpus rules in disposing of the Writ of Habeas Corpus?" (State's Lodging B-1, p.12.)
The Idaho Court of Appeals refused to address issues that were not raised before the magistrate or state district court, observing that it would "address only those issues now presented by Petitioner that were properly preserved in the proceedings below." (State's Lodging B-4, p.4.) Therefore, the only issues addressed by the Idaho Court of Appeals in affirming the state district court's decision were the following: (1) whether the magistrate judge erred by not having an evidentiary hearing; (2) whether the hearing officer violated I.C. § 20-229B by not issuing her decision within twenty days after completion of the parole violation hearing on October 21, 2005; and (3) whether Petitioner's due process right to cross-examine adverse witnesses was violated during the parole revocation hearing completed on April 13, 2006. (Id., pp. 4-10.) Petitioner's petition for review before the Idaho Supreme Court was denied. (State's Lodgings B-6 to B-9.)
5. Second State Habeas Corpus Petition
On December 13, 2007, while his first state habeas petition was on appeal, Petitioner filed a second state habeas petition, entitled an "Amended Petition for Writ of Habeas Corpus," arising from the same parole violation/revocation proceedings underlying his first petition; he also newly challenged the Commission's denial of self-initiated progress reports requesting that he be placed on parole. (State's Lodging C-1, pp. 4-51.)
The State responded, requesting summary judgment, arguing that the claims repeated from Petitioner's first habeas petition were barred by the doctrine of res judicata and that the claims involving his self-initiated progress reports failed to state a claim upon which relief could be granted. (Id., pp. 61-68.) Magistrate Judge Randall Robinson granted the motion for summary judgment and denied the petition for habeas corpus. (Id., pp. 110-17.)
Petitioner appealed Magistrate Judge Robinson's decision to District Court Judge John Bradbury. (State's Lodging C-1, pp. 118-22.) On August 28, 2008, Judge Bradbury affirmed Magistrate Judge Robinson's decision that Petitioner had received due process regarding the self-initiated progress reports, but remanded the petition on Judge Robinson's decision on the doctrine of res judicata, requiring Judge Robinson to address the merits of the claims associated with the original parole revocation proceedings. (Id., pp. 125-35.)
Petitioner filed a motion to reconsider Judge Bradbury's decision of August 28, 2008. The motion was denied on September 22, 2008. (Id., pp. 136-37.) Respondents also filed a motion to reconsider, which Judge Bradbury denied on October 3, 2008. (Id., pp. 138-52.)
On October 31, 2008, Petitioner filed a partial notice of appeal with the Idaho Supreme Court, challenging that portion of Judge Bradbury's September 22, 2008 decision regarding self-initiated progress reports. (State's Lodging C-1, pp.154-58.) Counsel Sarah Thomas was appointed, who filed a motion for leave to withdraw and suspend the briefing schedule, on the grounds that appellate counsel could find no viable issue for appeal. (State's Lodging D-2.) Petitioner filed an opening brief pro se (State's Lodging D-6), and then moved to have his appeal dismissed (State's Lodging D-8.) The Idaho Supreme Court granted the motion and dismissed the case. (State's Lodging D-9.)
On May 15, 2009, pursuant to the order of remand, Magistrate Judge Robinson again concluded the parole revocation claims were barred by the doctrine of res judicata, but also dismissed the claims on the merits, concluding that the petition was frivolous. (State's Lodging C-3.) Petitioner filed an appeal to the district court (State's Lodging C-4), and, on June 1, 2010, Judge Bradbury affirmed Magistrate Judge Robinson's dismissal of his remaining claims. (State's Lodging C-7.) Petitioner filed a motion for reconsideration (State's Lodging C-8), but on February 2, 2011, he withdrew the motion. (State's Lodging C-9.) Petitioner did not appeal the district court's decision affirming dismissal of his claims. (See State's Lodging C-10, State Court Register of Action.)
6. State Mandamus Proceedings
During the pendency of his second state habeas petition, Petitioner filed a petition for writ of mandamus directly with the Idaho Supreme Court, asking that court to intervene in the manner in which the state district and magistrate courts were handling his habeas corpus matters. (State's Lodging E- 1.) The petition was denied without comment by the Idaho Supreme Court on August 28, 2009. (State's Lodging E-2.)
7. Current Federal Habeas Corpus Proceedings
On September 14, 2009, Petitioner filed his federal Petition for Writ of Habeas Corpus, challenging the parole violation/revocation proceedings. (Dkt. 3.) Because Petitioner's related state court proceedings were still pending, the Court stayed this action. (Dkt. 21.)
On May 13, 2011, the stay was lifted (Dkt. 25), and Petitioner was permitted to proceed on his Second Amended Petition for Writ of Habeas Corpus (Dkt. 26), which contains the following claims: "(1) The double jeopardy clause protects against multiple punishments for the same offense. 8th Amendment. Petitioner' civil rights were violated in that he was already being sanctioned for all violations in the Parole Officer's Report of Violations; (2) due process 14th Amendment that decision of guilt be made within 20 days then to lie and say decision made at hearing [see I.C. § 20-229B]; (3) Due process right to confront evidence or address testimony against you and cross-examine witness [sic] under 8th and 14th Amendments; (4) due process to record proceeding for accuracy; and (5) Ineffective assistance of counsel. If counsel hired by petitioner would have correctly argued these issues and contacted or accepted a phone call for the $5000 paid the issues presented would not had to go into US District Court." (Dkt. 26, pp. 4-5.)
Currently at issue is Respondent's Motion for Summary Dismissal, asserting that all of Petitioner's claims are ...