United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge
States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on August 29, 2018, recommending
that Plaintiff Michael Ellenburg's
("Ellenburg") petition under 28 U.S.C. § 2254
for writ of habeas corpus be dismissed on the merits.
Ellenburg timely filed an objection to the Findings and
Recommendations, and so is entitled to de novo review of
those findings and recommendations to which he specifically
objects. 28 U.S.C. § 636(b)(1)(C). This Court
reviews for clear error those findings and recommendations to
which no party objects. See McDonnell Douglas Corp. v.
Commodore Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir.
1981); Thomas v. Arn, 474 U.S. 140, 149 (1985).
Clear error exists if the Court is left with a "definite
and firm conviction that a mistake has been committed."
United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000) (citations omitted).
the above, "[w]here a petitioner's objections
constitute perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same
arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will
be reviewed for clear error." Rosling v.
Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014)
challenges the Montana Board of Pardons and Parole's
(BOPP) imposition of a release condition that requires
prisoners to establish a long-term permanent residence prior
to being allowed parole. He contends that this violates his
due process rights. Further, Ellenburg argues that the
doctrine of ex post facto applies to his parole situation
because he has been incarcerated past his parole date due to
an alleged increased punishment from the parole condition. He
contends that the condition imposes a more restrictive parole
standard. Ellenburg also alleges that an equal protection
violation has occurred because other similarly-situated
individuals are not subject to the same parole conditions as
well established that there exists no substantive federal
right to release on parole, and "the only federal right
at issue" in the context of habeas claims regarding
parole hearings is a procedural right. Swarthout v.
Cooke, 562 U.S. 216, 222 (2011) (per curium). With
respect to parole hearings, "[t]here is no right under
the Federal Constitution to be conditionally released before
the expiration of a valid sentence, and the States are under
no duty to offer parole to their prisoners."
Id. at 220. An inmate is constitutionally entitled
only to an opportunity to be heard, and a statement of
reasons why parole was denied. Id. The
"beginning and the end of federal habeas" analysis
is whether the inmate received the minimal procedural
protections required under the Due Process Clause.
Id. Further, Montana law allows the board to adopt
any rules that it deems proper or necessary in relation to
prisoners' eligibility for parole and the conduct of
parole hearings. Mont. Code Ann. § 46-23-218(1) (2016).
an ex post facto analysis, there must first be two elements
present for ex post facto to apply: "first, the law must
be retrospective, that is, it must apply to events occurring
before its enactment; and second, it must disadvantage the
offender affected by it." Hamilton v. United
States, 67 F.3d 761, 764 (9th Cir. 1995) (quoting
Miller v. Florida, 482 U.S. 423, 430 (1987)).
"The Ex Post Facto Clause 'forbids the imposition of
punishment more severe than the punishment assigned by law
when the act to be punished occurred."' Id.
with respect to an equal protection claim, the Fourteenth
Amendment states that "[n]o state shall.. . deny to any
person within its jurisdiction the equal protection of the
laws." U.S. Const, amend. XIV. The equal protection
clause directs that "all persons similarly circumstanced
shall be treated alike." F.S. Royster Guano Co. v.
Virginia, 253 U.S. 412, 415 (1920).
Court notes Ellenburg's objections, but they are
misplaced. He fails to articulate any specific issue with
Judge Johnston's reasoning, and instead reiterates his
perception that his rights have been violated in some manner.
Ellenburg does not present any new evidence or legal
authority that proves his constitutional rights were violated
when he was subjected to certain parole conditions, or that
he is entitled to habeas relief. The Court agrees with Judge
Johnston that: (1) Ellenburg's due process rights have
not been violated because he remains eligible for parole
consideration upon submission of an acceptable living plan;
(2) the doctrine of ex post facto is not implicated because
the parole condition requiring him to find suitable housing
is a reasonable one that is placed on all potential parolees;
(3) Ellenburg's equal protection rights were not violated
because all offenders must identify a place to live prior to
their parole release and Ellenburg has failed to show he is
being discriminated against in any manner, much less because
of his disability; and (4) Ellenburg is not entitled to
habeas relief on the ground that a conviction or sentence
violates the state constitution or state law.
Ellenburg's main contention in his motions for an
evidentiary hearing is that the affidavit submitted by James
Jess sets forth untrue and incorrect statements regarding
parole, probation, and discharge. (See Docs. 22, 23
and 26.) Ellenburg argues that the cost of transitional
housing and additional expenses upon release far exceed any
potential income he would have, which makes the parole
condition impossible. He asserts that his economic condition
is "atypical and significant" which leaves him
unable to comply with the terms of the parole housing
requirement. (Doc. 23 at 2.) Firstly, the Court takes the
facts submitted by Mr. Jess in his affidavit and sworn under
oath as true. The facts contained therein are general
comments about the parole process and why it is important for
parolees to have a housing plan. (See Doc. 17 at 3.)
The affidavit also contains information related to the
multiple times Ellenburg appeared in front of the Board and
submitted his desired parole plans. (Id. at 3-7.)
Ellenburg's disagreement with the Board's conditions
to be eligible for parole, and the fact that Ellenburg was
unhappy with the Board's basis for denial does not create
a federal interest. Swarthout, 562 U.S. at 222;
Mont. Code Ann. § 46-23-218(1) (2016). By virtue of the
parole hearing itself, Ellenburg was provided with the
minimal procedural protections afforded to him under the Due
Process Clause. Consequently, a hearing regarding the facts
contained within Mr. Jess's affidavit is not warranted,
and the motions for an evidentiary hearing are denied.
Ellenburg moves the Court to appoint counsel. He asserts that
counsel is necessary so that he may present new facts and
verify any claims that he missed in his initial petition.
(Doc. 29 at 1.) In federal habeas cases, counsel must be
appointed when the case is so complex that due process
violations will occur absent the presence of counsel,
Bonin v. Vasquez, 999 F.2d 425, 428-429 (9th Cir.
1993) (discussing Chaney v. Lewis, 801 F.2d 1191,
1196 (9th Cir. 1986) (per curiam)), or when an evidentiary
hearing is required, Rule 8(c), Rules Governing § 2254
Cases. Counsel may be appointed at any stage of the
proceedings if the interests of justice so require. 18 U.S.C.
§ 3006A(a)(2)(B). Under § 3006A, the court must
consider the likelihood of success on the merits, the
complexity of the legal issues involved, and the
petitioner's ability to articulate his claims pro se.
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)
the Court finds that Ellenburg's case is not so complex
that his right to due process will be violated if counsel is
not appointed. This is not his first habeas petition, and
Judge Johnston has given him ample time to clarify and
present his claims. (Docs. 3; 10; 10-2.) As this Court has
already concluded, none of his claims warrant habeas relief.
Further, Ellenburg does not explain what claims counsel could
have assisted him with, but rather seeks counsel so that his
case file could be reviewed as a whole. (Doc. 29 at 1.) This
is not a basis for appointment of counsel, and the Court
finds that Ellenburg has been proficient in articulating his
claims pro se. Thus, he does not require counsel as a matter
of due process, and the Court declines to exercise its
discretion to appoint counsel.
Ellenburg moves the Court to set aside his remaining
sentence. (Doc. 32.) In his supporting brief, he requests
that the Court "stay and set aside Petitioner's
previous submission considering application of §
46-18-208 MCA to the case at bar and proceed on the merit[s]
of existing objections and consideration of new
evidence." (Doc. 32 at 1.) The Court has already
addressed the merits of Ellenburg's objections and finds
that he has failed to establish a violation of his
constitutional rights. Additionally, the Court will not
impede on the Board's role to determine when it is
appropriate for a prisoner to be granted parole. Thus, the
Court will not set aside Ellenburg's remaining sentence.
Ellenburg has failed to make a substantial showing that he
was deprived of a constitutional right and thus a certificate
of appealability is not warranted.
ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 19) are ADOPTED IN FULL.
Ellenburg's petition for ...