BISTLINE, Justice.
Following a hearing before the Idaho Commission for Pardons and Paroles on April 24, 1979, the appellant Charles Izatt, by a unanimous decision, was denied parole and was passed for further parole consideration to the end of his sentence. The appellant thereafter filed a petition for writ of habeas corpus, alleging that the actions of the Commission denied him due process.
On September 6, 1979, the Honorable Robert M. MaeConnell, Magistrate, dismissed the appellant’s petition, holding that the court had no authority to review an action of the Commission in refusing to release an offender, “unless the board holds the defendant beyond the maximum term imposed by the court.” The appellant appealed the magistrate’s decision to the district court, which affirmed the decision of the magistrate on March 31, 1981. The district court held that the issue of whether the Commission’s decision to pass the appellant for further parole consideration until the end of his sentence was grounds for granting relief was moot because, during the pendency of the appeal, the Commission had granted a new parole hearing and rescinded its previous decision. On appellant’s claim that the Commission erred in failing to provide a statement of reasons for its denial of parole, the court held that no such requirement existed as a matter of due process, citing
Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex,
442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The court noted that under
Greenholtz
a state can create a legitimate expectation of parole which would be entitled to some measure of due process protection, but held that the Idaho parole statute, I.C. § 20-223
, created only a possibility of
parole. Thus, the court concluded that “no due process rights attach under the Idaho statute and that the Commission is not obligated as a matter of due process to give written reasons for the denial of parole.” This appeal is from the decision of the district court.
I.
The appellant argues that he was denied a fair parole hearing and that the Commission, by passing him to the end of his sentence, failed to follow its own rule which provides that “no inmate will receive a parole hearing less frequently than every thirty (30) months.”
However, as was noted by the district court and conceded by the appellant, during the pendency of this matter the Commission reversed its previous decision to pass the appellant to the end of his sentence and granted the appellant a new parole hearing. Therefore, the appellant’s claims regarding the initial parole hearing are moot.
See Downing v. Jacobs,
99 Idaho 127, 578 P.2d 243 (1978);
Goff v. State,
91 Idaho 36, 36, 415 P.2d 679, 679 (1966).
II.
The appellant also argues that he was entitled to a statement of reasons for the denial of his parole. The district court disposed of this contention, stating that “in light of the United States Supreme Court decision in
Greenholtz v. Nebraska Penal Inmates,
442 U.S. 1, 60 L.Ed.2d 688, 99 S.Ct. 2100 (1979), [a statement of reasons for the denial of parole] is not compelled as a matter of Due Process under the United States Constitution.”
In
Greenholtz,
the Court held that if a state establishes a parole system which provides only a possibility of parole, that possibility is not protected by due process. The Court, however, found that the parole procedures of the State of Nebraska created a legitimate expectation of parole which was “entitled to some measure of constitutional protection.” 99 S.Ct. at 2106. In concluding that the procedures provided by the Nebraska statutes afforded the process due in order to protect the legitimate expectancy of parole which had been created, the Court relied in part on the fact that a statement of reasons was provided to an inmate when parole was denied. 99 S.Ct. at 2108. However, in the later case of
Connecticut Board of Pardons v. Dumschat,
452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), the Court made it clear that there is no general due process requirement of a statement of reasons for the denial of pa
role, stating: “It is clear that the requirement for articulating reasons for denial of parole in
Greenholtz
derived from unique mandates of the Nebraska statutes.” 101 S.Ct. at 2465.
The Idaho statute governing parole is I.C. § 20-223. In contrast to the Nebraska statute at issue in
Greenholtz,
I.C. § 20-223 does not set forth detailed conditions and qualifications which once met entitle an inmate to an expectation of parole.
I.C. § 20-223 merely sets forth necessary conditions which must be established before parole can be granted, thereby creating only a possibility of parole. Consequently, the Commission is not obligated as a matter of due process to give written reasons for a denial of parole.
III.
Finally the appellant argues that he was denied due process by the Commission’s failure to grant him a timely parole hearing, citing
The Policies and Procedures of the Idaho Commission for Pardons and Paroles
3 (November 1978) (hereinafter
Policies and Procedures),
which provides in part: “An inmate who falls within the restrictions imposed by Idaho Code § 20-223 will receive a primary interview within two (2) months prior to becoming eligible for parole.”
The appellant is serving concurrent fifteen year sentences on two convictions of rape. The appellant recognizes that pursuant to I.C. § 20-223, the Commission was precluded from accepting an application for parole from the appellant or from interviewing the appellant for parole until he “ha[d] served either a period of five (5) years or on third
(Va)
of the original sentence, whichever is the least.” I.C. § 20-223, footnote 1,
supra.
However, the appellant argues that since his sentence began to run in October of 1973, he was entitled under the Commission’s rule to a hearing no later than October of 1978.
Thus, he contends that he was denied due process because he was not granted a hearing before the Commission until April 24, 1979.
The appellant has misconstrued the above-quoted rule of the Commission pertaining to the primary interview to be provided to an inmate. If the Commission’s rule is read in context, it is clear that a primary hearing is not a parole hearing.
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BISTLINE, Justice.
Following a hearing before the Idaho Commission for Pardons and Paroles on April 24, 1979, the appellant Charles Izatt, by a unanimous decision, was denied parole and was passed for further parole consideration to the end of his sentence. The appellant thereafter filed a petition for writ of habeas corpus, alleging that the actions of the Commission denied him due process.
On September 6, 1979, the Honorable Robert M. MaeConnell, Magistrate, dismissed the appellant’s petition, holding that the court had no authority to review an action of the Commission in refusing to release an offender, “unless the board holds the defendant beyond the maximum term imposed by the court.” The appellant appealed the magistrate’s decision to the district court, which affirmed the decision of the magistrate on March 31, 1981. The district court held that the issue of whether the Commission’s decision to pass the appellant for further parole consideration until the end of his sentence was grounds for granting relief was moot because, during the pendency of the appeal, the Commission had granted a new parole hearing and rescinded its previous decision. On appellant’s claim that the Commission erred in failing to provide a statement of reasons for its denial of parole, the court held that no such requirement existed as a matter of due process, citing
Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex,
442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The court noted that under
Greenholtz
a state can create a legitimate expectation of parole which would be entitled to some measure of due process protection, but held that the Idaho parole statute, I.C. § 20-223
, created only a possibility of
parole. Thus, the court concluded that “no due process rights attach under the Idaho statute and that the Commission is not obligated as a matter of due process to give written reasons for the denial of parole.” This appeal is from the decision of the district court.
I.
The appellant argues that he was denied a fair parole hearing and that the Commission, by passing him to the end of his sentence, failed to follow its own rule which provides that “no inmate will receive a parole hearing less frequently than every thirty (30) months.”
However, as was noted by the district court and conceded by the appellant, during the pendency of this matter the Commission reversed its previous decision to pass the appellant to the end of his sentence and granted the appellant a new parole hearing. Therefore, the appellant’s claims regarding the initial parole hearing are moot.
See Downing v. Jacobs,
99 Idaho 127, 578 P.2d 243 (1978);
Goff v. State,
91 Idaho 36, 36, 415 P.2d 679, 679 (1966).
II.
The appellant also argues that he was entitled to a statement of reasons for the denial of his parole. The district court disposed of this contention, stating that “in light of the United States Supreme Court decision in
Greenholtz v. Nebraska Penal Inmates,
442 U.S. 1, 60 L.Ed.2d 688, 99 S.Ct. 2100 (1979), [a statement of reasons for the denial of parole] is not compelled as a matter of Due Process under the United States Constitution.”
In
Greenholtz,
the Court held that if a state establishes a parole system which provides only a possibility of parole, that possibility is not protected by due process. The Court, however, found that the parole procedures of the State of Nebraska created a legitimate expectation of parole which was “entitled to some measure of constitutional protection.” 99 S.Ct. at 2106. In concluding that the procedures provided by the Nebraska statutes afforded the process due in order to protect the legitimate expectancy of parole which had been created, the Court relied in part on the fact that a statement of reasons was provided to an inmate when parole was denied. 99 S.Ct. at 2108. However, in the later case of
Connecticut Board of Pardons v. Dumschat,
452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), the Court made it clear that there is no general due process requirement of a statement of reasons for the denial of pa
role, stating: “It is clear that the requirement for articulating reasons for denial of parole in
Greenholtz
derived from unique mandates of the Nebraska statutes.” 101 S.Ct. at 2465.
The Idaho statute governing parole is I.C. § 20-223. In contrast to the Nebraska statute at issue in
Greenholtz,
I.C. § 20-223 does not set forth detailed conditions and qualifications which once met entitle an inmate to an expectation of parole.
I.C. § 20-223 merely sets forth necessary conditions which must be established before parole can be granted, thereby creating only a possibility of parole. Consequently, the Commission is not obligated as a matter of due process to give written reasons for a denial of parole.
III.
Finally the appellant argues that he was denied due process by the Commission’s failure to grant him a timely parole hearing, citing
The Policies and Procedures of the Idaho Commission for Pardons and Paroles
3 (November 1978) (hereinafter
Policies and Procedures),
which provides in part: “An inmate who falls within the restrictions imposed by Idaho Code § 20-223 will receive a primary interview within two (2) months prior to becoming eligible for parole.”
The appellant is serving concurrent fifteen year sentences on two convictions of rape. The appellant recognizes that pursuant to I.C. § 20-223, the Commission was precluded from accepting an application for parole from the appellant or from interviewing the appellant for parole until he “ha[d] served either a period of five (5) years or on third
(Va)
of the original sentence, whichever is the least.” I.C. § 20-223, footnote 1,
supra.
However, the appellant argues that since his sentence began to run in October of 1973, he was entitled under the Commission’s rule to a hearing no later than October of 1978.
Thus, he contends that he was denied due process because he was not granted a hearing before the Commission until April 24, 1979.
The appellant has misconstrued the above-quoted rule of the Commission pertaining to the primary interview to be provided to an inmate. If the Commission’s rule is read in context, it is clear that a primary hearing is not a parole hearing. Unlike a parole hearing, a primary interview is not to be held before the five-member Commission, but before “a Commissioner or chosen delegate.”
Policies and Procedures
3, 5. Thus, no decision to grant or deny parole can possibly be made at a primary interview because the Commission’s
Policies and Procedures
require that such a decision “must be made by a majority of the five members of the Commission.”
Policies and Procedures
8. The stated purposes of the primary interview are:
“a. to establish the Commission’s basic record;
“b. to introduce the inmate to the general orientation of the Commission; “c. to plan with the inmate his program involvement as recommended by the
ISCI [Idaho State Correctional Institution] habilitation staff;
“d. to establish the date for the first regular parole hearing by the Commission.”
Policies and Procedures
3.
Finally, although I.C. § 20-223 precludes a parole hearing in cases such as the appellant’s until he has served one-third of his sentence or five years, whichever is least, the Commission’s rule calls for a primary interview to be held in such cases within two months prior to the inmate becoming eligible for parole.
If a primary hearing were a parole hearing, the Commission’s rule would be in conflict with the statute governing parole. Thus, we believe that the rule cited by the appellant only establishes the time at which a primary hearing is to be held, and does not pertain to the time at which a parole hearing is to be held.
Under the circumstances, the rule upon which the appellant has relied does not support his contention that he was denied a timely parole hearing. The appellant provides no other argument in support of this contention. We therefore hold that his petition does not state grounds for the issuance of a writ of habeas corpus. Accordingly, the decision of the district court affirming the magistrate’s dismissal of the appellant’s petition for writ of habeas corpus is
Affirmed.
DONALDSON, C.J., and SHEPARD, BAKES and HUNTLEY, JJ., concur.