United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
case comes before the Court on Petitioner Bobby Francis
Lowry's application for writ of habeas corpus under 28
U.S.C. § 2254. Lowry is a state prisoner proceeding pro
August 8, 2017, following the entry of an Alford
to the offenses of Promotion of Prostitution and Partner or
Family Member Assault, Lowry was sentenced to five years at
the Montana State Prison. (Doc. 1 at 1-2.) After completing
certain court-required programs, Lowry applied for a transfer
to New Mexico under the Interstate Corrections Compact.
Id. at 2. In November of 2018, New Mexico rejected
Lowry's application, because under New Mexico law, Lowry
would be considered a sexual offender and Lowry's
proposed residence was in close proximity to a bus stop and
park. Id.Lowry was informed that the state of New
Mexico understood Lowry's Montana conviction did not
require him to register as a sex offender under Montana law.
(Doc. 4-1 at 5.) Lowry was further advised that in order for
New Mexico to consider accepting him under an interstate
transfer, he would need to provide a residential address that
complied with New Mexico sex offender policies and would need
to be willing to comply with their states sex offender
conditions of supervision. (Doc. 4-1 at 6). While New Mexico
would not require Lowry to register in their state as a sex
offender, it would, nonetheless impose conditions of
supervision upon him based upon the sexual nature of his
conviction for Promotion Prostitution, pursuant to their
state supervision requirements. Id. at 5, 8.
argues that the imposition of harsh such sentencing
conditions upon him, whereby he essentially becomes a
registered sex offender, violates his right to due process
and to be free from ex post facto law. (Doc. 1 at 3-4.) He
also contends the application of New Mexico law via the
Interstate Compact, essentially holds him accountable to the
legal standards of a state in which he committed no offense.
asks this Court to order that any sex offender condition
imposed by either Montana or New Mexico be deemed illegal and
grant any other appropriate relief. Id. at 6.
preliminary matter, it does not appear that Lowry's claim
sounds in habeas, because it constitutes a challenge to the
conditions of his confinement rather than the fact or
duration of his confinement. See e.g., Wilkinson v.
Dotson, 544 U.S. 74, 79 (2005) (explaining that an
action under 42 U.S.C. §1983, rather than habeas corpus,
is proper if success on the merits would not
"necessarily have meant immediate release or a shorter
period of incarceration").
even assuming Lowry's claim is properly brought in a
federal habeas action, the claim is not cognizable. Federal
habeas corpus relief is available only for violations of the
Constitution or laws or treaties of the United States. See,
28 U.S.C. §2254(a); see also, Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Lowry has no federal
constitutional right to be housed in a particular prison or
in a particular state. Olimv. Wakinekona, 461 U.S.
238 (1983). Additionally, the Interstate Corrections Compact
is not federal law. Ghana v. Pearce, 159 F.3d 1206,
1209 (9th Cir. 1998).
neither the Interstate Compact nor state law gives rise to a
liberty interest in an interstate transfer protected by the
federal due process clause in these circumstances. Lowry
alleges that he is effectively being forced into sex offender
designation by New Mexico. But, as discussed above, Lowry has
been advised that he will not have to register in New Mexico
as a sex offender, but rather, under their rules of
supervision, he will be required to comply with certain state
law requirements that are imposed upon individuals who have
been convicted of a sex offense.
Lowry sought clarification of his sentence in the Montana
state district court, Lowry was advised that although he was
not required as a condition of his sentence to register as a
sex offender under Montana law, "it [was] possible that
New Mexico's SVORA equivalent may require Defendant to
register as a sexual offender... the State does not take a
position on New Mexico's statute or New Mexico's
Department of Correction's interpretation of its
statute." (Doc. 4-1 at 2-3.)
federal habeas corpus relief is unavailable for violations of
state law or for alleged errors in the interpretation and
application of state law. Estelle, 502 U.S. at 67-68
("Today we reemphasize that it is not the province of a
federal habeas court to reexamine state court determinations
on state law questions."); Wisconsin v.
Mitchell, 508 U.S. 476, 483 (1993) ("There is no
doubt that we are bound by a state court's construction
of a state statute.")- Lowry's claim that the state
of New Mexico erred when it determined he would have to abide
by certain conditions of supervision applicable to offenders
who have committed a sexual offense is based upon New
Mexico's interpretation of its own state law and,
therefore, does not state a cognizable claim for federal
the Court understands Lowry finds such conditions of
supervision to be undesirable, he has failed to demonstrate
that such conditions constitute an "atypical and
significant hardship" upon him "sufficient to give
rise to an interest protected by the Fourteenth
Amendment." Ghana, 159 F.3d at 1208-09 (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Lowry's petition should be denied.