IN THE SUPREME COURT OF IOWA No. 07–1459
Filed July 9, 2010
MYRON BRANDON,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR HENRY COUNTY,
Defendant.
Certiorari to the Iowa District Court for Mahaska County, John G.
Linn, Judge.
Certiorari action brought by inmate to challenge the legality of
district court decision in postconviction relief proceeding, holding that
application of Iowa Code section 903A.2(1)(a) (Supp. 2005) was
appropriate retroactive application of remedial statute and did not violate
the Ex Post Facto Clauses of the United States and Iowa Constitutions
and that inmate received sufficient due process. WRIT ANNULLED.
Philip B. Mears of Mears Law Office, Iowa City, for plaintiff.
Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant
Attorney General, for defendant. 2
PER CURIAM.
Inmate Myron Brandon brought this postconviction relief action
challenging a determination by the Iowa Department of Corrections
(IDOC) that he was ineligible to accrue earned-time credits after he was
removed from the Sex Offender Treatment Program (SOTP). The IDOC
action was based on a 2005 amendment to Iowa Code section 903A.2,
which provides that an inmate required to participate in SOTP loses his
eligibility for a reduction in sentence if he fails to participate. See Iowa
Code § 903A.2(1)(a) (Supp. 2005). Brandon claimed this statute did not
apply to him because his crimes were committed before the amendment
was enacted, and if the amendment did apply to him, it was a violation of
the prohibition against ex post facto laws under both the United States
and Iowa Constitutions. He further alleged he received insufficient due
process from the IDOC when he was removed from SOTP. The district
court rejected these claims, and so do we.
I. Applicability of Statute.
We recently addressed a similar claim in Holm v. Iowa District
Court, 767 N.W.2d 409 (Iowa 2009). In that case, we held the 2005
amendment did not change the existing law, but merely clarified it, thus
negating the inmate’s argument the legislature intended the amendment
to only be applied prospectively to inmates whose crimes occurred after
July 1, 2005, the effective date of the statute. Holm, 767 N.W.2d at 416
& n.3. This decision is dispositive of Brandon’s claim that the 2005
amendment does not apply to him because his crime was committed
before its enactment.
II. Ex Post Facto Violation.
In Holm, we concluded application of the 2005 amendment to
prisoners whose crimes were committed after January 1, 2001 (the 3
effective date of a prior amendment), but before July 1, 2005 (the
effective date of the 2005 amendment), did not violate the Ex Post Facto
Clauses of the United States and Iowa Constitutions because the
amendment was a correction of misapplied existing law and did not
result in a more onerous punishment. Id. at 416–17. To the extent
Brandon’s crimes were committed in this time frame, our decision in
Holm controls.
Brandon asserts, however, that the parties and the district court
assumed he was required to take sex offender treatment because of
events that took place between 2001 and 2005. While he acknowledges
the kidnapping for which he was serving time took place in 2004, he
states the indecent-contact-with-a-child incident for which he was
imprisoned occurred in 2000. Brandon asserts that, because the court
has distinguished criminal acts committed before 2001 from those
committed after that date for purposes of determining whether a 2001
amendment violated the prohibition against ex post facto laws, it may be
necessary to remand this case to the district court to determine whether
the IDOC imposed the treatment requirement on him based on his 2000
crime. See State v. Iowa Dist. Ct., 759 N.W.2d 793, 802 (Iowa 2009)
(holding application of a 2001 amendment to section 903A.2 to inmates
whose crimes predated the amendment violated the constitutional
prohibition of ex post facto laws). This argument was not asserted in
Brandon’s application for postconviction relief and was not made to the
district court; therefore, it has not been preserved for our review. See
Iowa Code § 822.8 (2005) (stating “[a]ll grounds for relief available to [a
postconviction relief] applicant . . . must be raised in the applicant’s . . .
application”). Accordingly, on the basis of our decision in Holm, we find
no merit to Brandon’s claim of an ex post facto violation. 4
III. Due Process Claim.
On January 31, 2006, Brandon was removed from the SOTP after
a classification meeting with the treatment director, where it was
determined that Brandon’s attitude and behavior in treatment was
unsatisfactory. Brandon contends the procedure used by the IDOC in
determining he should be removed from the treatment program was
constitutionally inadequate in affording him due process under the
factors set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41
L. Ed. 2d 935 (1974). Specifically, he asserts that (1) notice of the
classification hearing on January 31, 2006, was insufficient; (2) the
classification notations do not satisfy the requirement of a written
statement of reasons and findings for his removal; and (3) allowing the
director of the treatment program to determine whether he should be
removed from treatment deprived him of a neutral fact finder and
increased the risk of erroneous deprivation.
We recently addressed a similar claim in Reilly v. Iowa District
Court, ___ N.W.2d ___ (Iowa 2010). In that case, Reilly was removed from
SOTP because his account of his sexual crime differed from that of the
victim, and he failed a polygraph examination on the specifics of the
crime. Reilly, ___ N.W.2d at ___. Like Brandon, Reilly contended that
IDOC must comply with the requirements set forth by the United States
Supreme Court in Wolff, including advance written notice, a written
statement of the reasons relied upon for his removal, and a hearing
before a neutral fact finder. Id. (citing Wolff, 418 U.S. at 563–71, 94
S. Ct. at 2978–82, 41 L. Ed. 2d at 955–59).
Our first step in addressing Reilly’s due process claim was to
determine whether a protected liberty interest was involved. Id. Because
removal from SOTP results in the loss of eligibility to accrue earned time, 5
it inevitably affected the duration of Reilly’s sentence, and therefore, we
held Reilly had a liberty interest in his ability to accrue earned time that
was implicated by his removal from treatment. Id. at ___ (citing Wilson v.
Jones, 430 F.3d 1113, 1120–21 (10th Cir. 2005)).
We then turned to the question of what process was due. After an
examination of the relevant issues involved, we concluded that
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IN THE SUPREME COURT OF IOWA No. 07–1459
Filed July 9, 2010
MYRON BRANDON,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR HENRY COUNTY,
Defendant.
Certiorari to the Iowa District Court for Mahaska County, John G.
Linn, Judge.
Certiorari action brought by inmate to challenge the legality of
district court decision in postconviction relief proceeding, holding that
application of Iowa Code section 903A.2(1)(a) (Supp. 2005) was
appropriate retroactive application of remedial statute and did not violate
the Ex Post Facto Clauses of the United States and Iowa Constitutions
and that inmate received sufficient due process. WRIT ANNULLED.
Philip B. Mears of Mears Law Office, Iowa City, for plaintiff.
Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant
Attorney General, for defendant. 2
PER CURIAM.
Inmate Myron Brandon brought this postconviction relief action
challenging a determination by the Iowa Department of Corrections
(IDOC) that he was ineligible to accrue earned-time credits after he was
removed from the Sex Offender Treatment Program (SOTP). The IDOC
action was based on a 2005 amendment to Iowa Code section 903A.2,
which provides that an inmate required to participate in SOTP loses his
eligibility for a reduction in sentence if he fails to participate. See Iowa
Code § 903A.2(1)(a) (Supp. 2005). Brandon claimed this statute did not
apply to him because his crimes were committed before the amendment
was enacted, and if the amendment did apply to him, it was a violation of
the prohibition against ex post facto laws under both the United States
and Iowa Constitutions. He further alleged he received insufficient due
process from the IDOC when he was removed from SOTP. The district
court rejected these claims, and so do we.
I. Applicability of Statute.
We recently addressed a similar claim in Holm v. Iowa District
Court, 767 N.W.2d 409 (Iowa 2009). In that case, we held the 2005
amendment did not change the existing law, but merely clarified it, thus
negating the inmate’s argument the legislature intended the amendment
to only be applied prospectively to inmates whose crimes occurred after
July 1, 2005, the effective date of the statute. Holm, 767 N.W.2d at 416
& n.3. This decision is dispositive of Brandon’s claim that the 2005
amendment does not apply to him because his crime was committed
before its enactment.
II. Ex Post Facto Violation.
In Holm, we concluded application of the 2005 amendment to
prisoners whose crimes were committed after January 1, 2001 (the 3
effective date of a prior amendment), but before July 1, 2005 (the
effective date of the 2005 amendment), did not violate the Ex Post Facto
Clauses of the United States and Iowa Constitutions because the
amendment was a correction of misapplied existing law and did not
result in a more onerous punishment. Id. at 416–17. To the extent
Brandon’s crimes were committed in this time frame, our decision in
Holm controls.
Brandon asserts, however, that the parties and the district court
assumed he was required to take sex offender treatment because of
events that took place between 2001 and 2005. While he acknowledges
the kidnapping for which he was serving time took place in 2004, he
states the indecent-contact-with-a-child incident for which he was
imprisoned occurred in 2000. Brandon asserts that, because the court
has distinguished criminal acts committed before 2001 from those
committed after that date for purposes of determining whether a 2001
amendment violated the prohibition against ex post facto laws, it may be
necessary to remand this case to the district court to determine whether
the IDOC imposed the treatment requirement on him based on his 2000
crime. See State v. Iowa Dist. Ct., 759 N.W.2d 793, 802 (Iowa 2009)
(holding application of a 2001 amendment to section 903A.2 to inmates
whose crimes predated the amendment violated the constitutional
prohibition of ex post facto laws). This argument was not asserted in
Brandon’s application for postconviction relief and was not made to the
district court; therefore, it has not been preserved for our review. See
Iowa Code § 822.8 (2005) (stating “[a]ll grounds for relief available to [a
postconviction relief] applicant . . . must be raised in the applicant’s . . .
application”). Accordingly, on the basis of our decision in Holm, we find
no merit to Brandon’s claim of an ex post facto violation. 4
III. Due Process Claim.
On January 31, 2006, Brandon was removed from the SOTP after
a classification meeting with the treatment director, where it was
determined that Brandon’s attitude and behavior in treatment was
unsatisfactory. Brandon contends the procedure used by the IDOC in
determining he should be removed from the treatment program was
constitutionally inadequate in affording him due process under the
factors set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41
L. Ed. 2d 935 (1974). Specifically, he asserts that (1) notice of the
classification hearing on January 31, 2006, was insufficient; (2) the
classification notations do not satisfy the requirement of a written
statement of reasons and findings for his removal; and (3) allowing the
director of the treatment program to determine whether he should be
removed from treatment deprived him of a neutral fact finder and
increased the risk of erroneous deprivation.
We recently addressed a similar claim in Reilly v. Iowa District
Court, ___ N.W.2d ___ (Iowa 2010). In that case, Reilly was removed from
SOTP because his account of his sexual crime differed from that of the
victim, and he failed a polygraph examination on the specifics of the
crime. Reilly, ___ N.W.2d at ___. Like Brandon, Reilly contended that
IDOC must comply with the requirements set forth by the United States
Supreme Court in Wolff, including advance written notice, a written
statement of the reasons relied upon for his removal, and a hearing
before a neutral fact finder. Id. (citing Wolff, 418 U.S. at 563–71, 94
S. Ct. at 2978–82, 41 L. Ed. 2d at 955–59).
Our first step in addressing Reilly’s due process claim was to
determine whether a protected liberty interest was involved. Id. Because
removal from SOTP results in the loss of eligibility to accrue earned time, 5
it inevitably affected the duration of Reilly’s sentence, and therefore, we
held Reilly had a liberty interest in his ability to accrue earned time that
was implicated by his removal from treatment. Id. at ___ (citing Wilson v.
Jones, 430 F.3d 1113, 1120–21 (10th Cir. 2005)).
We then turned to the question of what process was due. After an
examination of the relevant issues involved, we concluded that
[t]he full panoply of protections that would accompany a formal hearing are unnecessary for removal from SOTP because of the nature of the liberty interest at stake, the discretion granted to IDOC employees, and the professional judgment behind any removal decision.
Id. at ___. Instead, we held that due process required IDOC to provide an
inmate subject to removal from SOTP with “(1) advance notice allowing
the inmate time to secure documents or prepare a statement, (2) an
opportunity to present documentary evidence, letters, or make
statements before the decision-maker, and (3) an explanation for the
reasons behind any removal decision.”1 Id. In addition, we held due
process required “that the decisionmakers be ‘sufficiently impartial.’ ” Id.
(citing Wolff, 418 U.S. at 570–71, 94 S. Ct. at 2982, 41 L. Ed. 2d at 959).
A. Adequacy of Notice of January 31, 2006 Classification Hearing. Brandon contends he was not given adequate notice of the
January 31, 2006 classification hearing, after which he was removed
from SOTP and his eligibility to accrue earned-time credits was stopped.
In order to determine whether the procedure provided to Brandon by
IDOC complied with due process, it is helpful to review the pertinent
factual background that can be gleaned from program review notes kept
by the IDOC. According to these notes, on December 23, 2005, Brandon
1It is important to note that Reilly did not require either the notice or the explanation to be in writing. 6
approached one of his counselors to discuss his possible removal from
the program. At that time, the program review notes indicate Brandon
was informed by his counselor that the treatment director had been
notified “to have him removed from the unit.” Brandon was removed
from the unit on that day and a program review was scheduled for
December 27, 2005. There is no indication that he was removed,
however, from SOTP at that time. On December 27, 2005, the notes
indicate Brandon attended a classification hearing at which it was
determined he would be temporarily removed from the treatment unit
due to his attitude. It was also understood that he would not be allowed
to return to group treatment before February 1, 2006. The program
review notes support the conclusion that any return to group treatment
and continuation in SOTP was contingent upon Brandon’s progress in
the intervening period and that Brandon had been informed of these
requirements and the upcoming classification. In pertinent part, the
note stated:
Offender Brandon was seen this morning with TD [treatment director] Gail Huckins, CC Hartsock, and myself for the purpose of a review to determine whether offender Brandon will remain in the Special Needs SOTP due to some behavioral issues. . . . It was decided that offender Brandon be placed on unit 1D for a couple of weeks and then may return to 1B. Offender Brandon will be removed from all treatment groups and will be eligible to return to groups in February 06. Offender Brandon will need to re-take Empathy and Roadmaps, however, will not do so until after February 1, 2006. . . . Offender Brandon was also reminded that, if his attitude and behavior does not change, he will be removed from the program and placed on unit 3D. 2
2The author of the progress review note was Brad Hoenig who, from the record, appears to have been one of Brandon’s counselors. 7
Based on this documentation, it is clear that Brandon was advised
that a determination regarding his eligibility to return to treatment
groups and full participation in SOTP would be made before February
2006. The subsequent classification hearing was held on January 31,
2006, and was for the purpose of assessing Brandon’s attitude about
treatment and whether he would be able to return to full participation.
This review was clearly an anticipated proceeding for which Brandon had
adequate advance notice on December 27, 2005.
B. Adequacy of Explanation for Removal. Next, Brandon
asserts the classification notations do not satisfy the due process
requirement of a written statement of reasons and findings. Brandon
argues the program review notes are insufficient because, for example,
there is no specific finding as to what his—Brandon’s—position was
before the decision maker.
As previously noted, before IDOC can remove an inmate from
SOTP, due process requires that the inmate receive an explanation for
the reasons behind the removal decision. Reilly, ___ N.W.2d at ___.
When the program review notes are read together, the notes clearly
indicate that Brandon was advised that the reason for his removal from
treatment was his failure to accept responsibility for his actions and his
placement of the blame for his situation on others.
Beginning December 23, 2005, Brandon was advised that his
ability to remain in the program was contingent upon his ability to
identify his thoughts and feelings in regards to why he committed his
offense. On December 27, Brandon was advised that if his attitude and
behavior did not change, he would be removed from the program and
was thereafter given over a month to work on these issues. Program
review notes indicate that when Brandon appeared before the treatment 8
director and a counselor on January 31, 2006, he did verbalize that he
wanted treatment, but the notes also indicate that he had continued to
fail to follow through with the treatment and had continued to project
blame on others for his current situation. In a written appeal to the
assistant warden, dated January 31, 2006, Brandon, himself, indicates
that he was removed from treatment due to his response to questions
about future drug use and the counselor’s belief that he is not being
honest in therapy. Furthermore, on appeal, Brandon makes no claim
that he was not verbally told the findings and reasons for his removal.
These facts support the conclusion that Brandon was adequately advised
of the reasons for his removal from treatment and therefore the process
complied with the procedure set forth in Reilly.
C. Impartiality of Decision Maker. As a final matter, Brandon
contends that allowing the director of the treatment program to
determine whether he should be removed from treatment deprived him of
a neutral fact finder and, therefore, violated his right to due process. As
we explained in Reilly, when the hearing officer is not personally involved
in the incident for which action is being taken or personally involved in
prior actions taken against the inmate, the hearing officer is believed to
be sufficiently independent. Id. at ___; Williams v. State, 421 N.W.2d
890, 895 (Iowa 1988) (noting that in the context of prison disciplinary
actions “[t]he independence required of the hearing officer is that the
officer not be personally involved in the incident for which discipline is
sought or in prior disciplinary actions against the inmate”). In this case,
Brandon has presented no evidence to support the conclusion that the
treatment director, who he asserts made the decision to remove him from
treatment, was personally involved in the incidents for which the
counselors recommended Brandon’s removal from treatment. We have 9
long held in prison disciplinary actions that “[t]he burden is on the
inmate alleging the constitutional [due process] violations to prove them
by a preponderance of the evidence.” Thomas v. State, 339 N.W.2d 166,
167 (Iowa 1983); accord Kelly v. Nix, 329 N.W.2d 287, 291 (Iowa 1983).
Brandon has failed to carry his burden of proof that the treatment
director was not sufficiently impartial.
IV. Conclusion.
IDOC’s determination that Brandon’s ability to accrue earned time
be stopped under Iowa Code section 903A.2 did not violate the Ex Post
Facto Clause and was statutorily authorized. In addition, Brandon did
not meet his burden of proof to establish that he received insufficient due
process regarding the IDOC classification hearing on January 31, 2006.
WRIT ANNULLED.
This is not a published opinion.