Opinion
No. 42063.
December 29, 2005.
Proper person appeal from a district court judgment denying and dismissing appellant's writ petition. Sixth Judicial District Court, Pershing County; Richard Wagner, Judge.
Affirmed.
Robert Leslie Stockmeier, Lovelock, in Proper Person.
George Chanos, Attorney General, and John M. Warwick IV, Deputy Attorney General, Carson City, for Respondents.
Before: DOUGLAS, ROSE and PARRAGUIRRE, JJ.
OPINION
In this proper person appeal, we decide the scope of NRS 213.1214(4)'s prohibition of prisoner challenges to Psychological Review Panel hearings and whether a prisoner's due process rights were violated. Before he is eligible for parole, appellant Robert Stockmeier, who is an incarcerated sex offender, must receive certification from respondent Psychological Review Panel (Panel) that he does not represent a high risk to reoffend. He filed a district court petition for a writ of mandamus, prohibition, or habeas corpus, challenging various events at his most recent Panel hearing as violating NRS 213.1214 and his procedural due process rights. The district court denied his petition, determining that he was precluded from challenging his procedural due process rights under NRS 213.1214(4).
We conclude that the district court erred in determining that NRS 213.1214(4) precluded Stockmeier's petition. NRS 213.1214(4)'s prohibition of prisoner lawsuits is limited to challenging a decision of the Panel or a decision to grant a hearing. The statute does not prohibit other prisoner lawsuits. However, because we also conclude that writs of mandamus, prohibition, and habeas corpus are inappropriate vehicles for Stockmeier to use to raise his claimed due process violations, we affirm the judgment of the district court dismissing Stockmeier's petition. Finally, we take this opportunity to examine Stockmeier's due process claims and conclude that he has no right to procedural due process in this instance because NRS 213.1214 does not grant him a liberty interest.
FACTS
Stockmeier is a sex offender currently incarcerated at the Lovelock Correctional Facility. As a sex offender, Stockmeier must receive certification from the Panel before becoming eligible for parole. Stockmeier attended a Panel hearing on December 19, 2002. Before the hearing, he received a copy of the hearing agenda, which merely informed him that the Panel would interview him in a closed session before opening up for public comment and that the Panel would conduct the hearing in accordance with NRS 213.1214. The agenda did not inform Stockmeier that the Panel would hear comments from the victim and his family during the closed session.
During the closed portion of the hearing, the victim and his family were admitted and allowed to speak. The victim's mother and grandparents alleged that the victim had recently recovered memories of additional acts of physical abuse. The victim had never before alleged those acts, which have never been adjudicated and were not included in the presentence investigation report.
The Panel then interviewed Stockmeier, questioning him regarding the most recent allegations by the victim's family. Stockmeier admitted to the crimes for which he had been convicted but denied committing the new, uncharged acts. The Panel declined to certify Stockmeier, noting, among other issues, that he denied accountability for the newly asserted physical abuse.
Stockmeier challenged the Panel's consideration of the new physical abuse allegations by filing with the district court a petition for a writ of mandamus and prohibition or, alternatively, for a writ of habeas corpus. Stockmeier's petition alleged numerous procedural due process violations. The district court, without ordering an answer, denied the petition. The district court determined that because the basis of the petition was that the Panel refused to certify Stockmeier, the action was precluded under NRS 213.1214(4). When denying Stockmeier's motion for reconsideration, the district court concluded that even if his argument was considered a procedural due process attack, Stockmeier could not attack the process of the hearing because he could not attack the results of the hearing. This appeal followed.
DISCUSSION
NRS 213.1214Stockmeier asserts that the district court erred in interpreting NRS 213.1214 to prohibit procedural due process challenges to the Panel hearing. We agree.
Statutory interpretation is a question of law, and we review the district court's interpretation of NRS 213.1214 de novo. When interpreting a statute, we first determine whether its language is ambiguous. If the language is clear and unambiguous, we do not look beyond its plain meaning and give effect to its apparent intent, unless that meaning was clearly not intended.
State v. Catanio, 120 Nev. ___, ___, 102 P.3d 588, 590 (2004).
State v. Quinn, 117 Nev. 709, 713, 30 P.3d 1117, 1120 (2001).
Id.
NRS 213.1214 provides:
1. The Board shall not release on parole a prisoner convicted of [sexual assault] unless a panel . . . certifies that the prisoner was under observation while confined in an institution of the Department of Corrections and does not represent a high risk to reoffend based upon a currently accepted standard of assessment.
. . . .
4. This section does not create a right in any prisoner to be certified or to continue to be certified. No prisoner may bring a cause of action against the State, its political subdivisions, or the agencies, boards, commissions, departments, officers or employees of the State or its political subdivisions for not certifying a prisoner pursuant to this section or for refusing to place a prisoner before a panel for certification pursuant to this section.
The district court interpreted NRS 213.1214(4) as precluding constitutional challenges to the Panel hearing. The language in NRS 213.1214(4) precludes any prisoner from bringing "a cause of action . . . for not certifying a prisoner . . . or for refusing to place a prisoner before a panel for certification." The statutory language is unambiguous and clearly prohibits two causes of action, one for the Panel's failure to certify a prisoner, and one for refusing to consider a prisoner for certification. Nowhere in the statute does it prohibit claims regarding the process of conducting the hearing.
In the present case, Stockmeier's complaint arises out of a Panel hearing that he has already received. He is therefore not asserting a cause of action for the Panel "refusing to place a prisoner before a Panel." Stockmeier is also not bringing an action against the Panel for the Panel's failure to certify him. He is contesting the notice he received and the procedure the Panel followed during the hearing. Therefore, we conclude that NRS 213.1214(4) does not prohibit Stockmeier's petition for writs of mandamus, prohibition, and habeas corpus.
The writs of mandamus, prohibition, and habeas corpus
We review for an abuse of discretion a district court's order granting or denying a writ petition. This court may affirm a district court's order if it achieved the right result but used the wrong reasoning. Therefore, although we conclude that the district court erred in determining that NRS 213.1214(4) prohibits Stockmeier's petition, we affirm the district court's order dismissing it because his petition for writs of mandamus, prohibition, and habeas corpus was not the correct vehicle to provide Stockmeier with relief.
City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).
Sengel v. IGT, 116 Nev. 565, 570, 2 P.3d 258, 261 (2000).
"A writ of mandamus is available to compel the performance of an act that the law requires as a duty or to control an arbitrary or capricious exercise of discretion." Similarly, a writ of prohibition is available to "'arrest the proceedings of any tribunal . . . when such proceedings are without or in excess of the jurisdiction of such tribunal.'" Both of these extraordinary writs will issue only when petitioners have no plain, speedy and adequate remedy in the ordinary course of law.
Gumm v. State, Dep't of Education, 121 Nev. ___, ___, 113 P.3d 853, 856 (2005).
State of Nevada v. Dist. Ct. (Anzalone), 118 Nev. 140, 146-47, 42 P.3d 233, 237 (2002) (quoting NRS 34.320).
NRS 213.1214 authorizes the panel proceeding and does not limit the information that the Panel may consider when it determines whether a prisoner may "represent a high risk to reoffend." While basic fairness should require that a prisoner appearing before the Panel be given notice of any new evidence to be presented against him, the Panel did not exceed its discretion or jurisdiction in considering the new evidence. Because NRS 213.1214(4) does not prevent Stockmeier from filing a complaint, we conclude that the relief provided by a writ of prohibition or mandamus is inappropriate in this situation.
Similarly, a writ of habeas corpus is only available for prisoners seeking to invalidate their confinement or its duration, "either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody." Claims not directly affecting a prisoner's confinement or the duration of that confinement must be brought under some other theory.
Wilkinson v. Dotson, 544 U.S. ___, ___, 125 S. Ct. 1242, 1247 (2005).
Id. at ___, 125 S. Ct. at 1247-48 (holding that the prisoners' claims fell under 42 U.S.C. § 1983 (2000) because success would not have resulted in immediate release from confinement or a shorter stay in prison but would only speed consideration of a new parole application or result in a new hearing before the parole board).
In the present case, Stockmeier does not seek to overturn his conviction or reduce the duration of his sentence. He seeks to correct perceived violations of his due process rights that occurred before and during the Panel hearing. Correcting these alleged violations would not change the duration of Stockmeier's sentence or affect his conviction. At most, Stockmeier would receive a new Panel hearing, which would not necessarily result in his release. Therefore, we conclude that Stockmeier cannot avail himself of the writ of habeas corpus, and the district court properly denied and dismissed his petition.
Procedural due process
Although we conclude that the district court properly denied and dismissed Stockmeier's petition, we take this opportunity to consider Stockmeier's procedural due process challenge to notice and witnesses at the Panel hearing. We conclude that Stockmeier lacks standing to assert a violation of his due process rights and that, because NRS 213.1214 does not grant prisoners a liberty interest, Stockmeier does not have procedural due process rights in the Panel hearing.
Standing
Standing to assert constitutional claims first requires an injury in fact that is concrete and particularized, and actual or imminent. Next, the cause of the injury must be traceable to the action of the defendant and not the result of a third party. Finally, it must also be likely, rather than speculative, that a favorable decision will provide redress. Stockmeier has the burden of proving these factors.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Id.
Id. at 561.
Id.
Stockmeier claims that his injury occurred when he was not given notice of the extent of the testimony to be allowed against him and when the Panel considered this testimony in its decision to deny him certification. However, Stockmeier does not argue that there was a genuine possibility of the Panel certifying him. Even if the Panel had not considered the new testimony, it found that Stockmeier had "unsatisfactory performance in all criteria," not just in his accountability for newly alleged abuse. Therefore, it is not probable that the Panel's decision would have been any different without the new allegations of abuse. We conclude that Stockmeier has no injury in fact and, therefore, has no standing to assert constitutional claims.
NRS 213.1214 does not grant a liberty interest
Even if Stockmeier does have standing, he cannot assert procedural due process rights because NRS 213.1214 does not grant him a liberty interest. Procedural due process applies to assure a fair hearing when a person has been deprived of some type of liberty interest. Parole generally does not create a protected liberty interest. However, the United States Supreme Court has determined that parole statutes do convey a protected liberty interest when they provide for mandatory release, notwithstanding that parole is "a matter of grace." Even so, parole statutes providing that prisoners shall not be released until certain conditions are met do not provide for mandatory release and thus provide no liberty interest, unless the statutes provide a set of structured rules that, if met, would require release.
Kelch v. Director, 107 Nev. 827, 829, 822 P.2d 1094, 1095 (1991).
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979).
Board of Pardons v. Allen, 482 U.S. 369, 373-79, 378 n. 10 (1987).
Id. at 377 n. 8; cf. NRS 213.10705 ("parole . . . is an act of grace").
This court has held that NRS 213.1099, which provides that the Parole Board "may" release prisoners, does not create a liberty interest. Weakland v. Bd. of Parole Comm'rs, 100 Nev. 218, 219-20, 678 P.2d 1158, 1159-60 (1984).
Patten v. North Dakota Parole Bd., 783 F.2d 140, 142-43 (8th Cir. 1986); Berard v. State of Vt. Parole Bd., 730 F.2d 71, 75 (2d Cir. 1984); Hanrahan v. Williams, 673 N.E.2d 251, 255 (Ill. 1996).
In the present case, NRS 213.1214(1) provides:
The Board shall not release on parole a prisoner convicted of an offense listed in subsection 5 unless a panel . . . certifies that the prisoner was under observation while confined in an institution of the Department of Corrections and does not represent a high risk to reoffend based upon a currently accepted standard of assessment.
(Emphases added.) According to the statute, unless the Panel certifies a prisoner to the parole board, the prisoner cannot be released. Thus, a prisoner does not have an expectation that the Panel will certify him if certain criteria are met. Because NRS 213.1214 does not provide for mandatory certification, we conclude that NRS 213.1214 does not provide prisoners with a liberty interest to support due process rights. Therefore, we conclude that Stockmeier has no procedural due process rights in the Panel hearings.
CONCLUSION
NRS 213.1214(4) does not prevent Stockmeier from filing a complaint alleging violations of his procedural due process rights that occurred before and during the course of the Panel hearing. NRS 213.1214(4) only prohibits actions challenging the Panel's decision whether to certify a prisoner and decision whether to grant a Panel hearing. We also conclude that Stockmeier inappropriately pursued these claims through the writs of mandamus, prohibition, and habeas corpus. Finally, we take this opportunity to examine Stockmeier's due process claims and conclude that Stockmeier does not have any procedural due process rights in the Panel hearing because NRS 213.1214 does not vest Stockmeier with a liberty interest.
Accordingly, we affirm the district court's order denying and dismissing the petition.