               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38434

ALFREDO HOLGUIN ROMAN,                            )   2011 Unpublished Opinion No. 722
                                                  )
       Petitioner-Appellant,                      )   Filed: November 22, 2011
                                                  )
v.                                                )   Stephen W. Kenyon, Clerk
                                                  )
IDAHO COMMISSION OF PARDONS                       )   THIS IS AN UNPUBLISHED
AND PAROLE, OLIVIA CRAVEN,                        )   OPINION AND SHALL NOT
Executive Director; MARK FUNAIOLE,                )   BE CITED AS AUTHORITY
Commissioner; BILL YOUNG,                         )
Commissioner; NORMAN LANGERAK,                    )
Commissioner,                                     )
                                                  )
       Respondents.                               )
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Daniel C. Hurlbutt, District Judge.

       Summary judgment dismissing petition for writ of habeas corpus, affirmed.

       Alfredo Roman, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; William M. Loomis, Deputy
       Attorney General, Boise, for respondents.
                 ________________________________________________
LANSING, Judge
       Alfredo Holguin Roman appeals from the district court’s order dismissing on summary
judgment his petition for a writ of habeas corpus brought against the Commission of Pardons and
Parole (the Commission), its executive director, and its individual members (hereinafter
collectively referred to as the Respondents). We affirm.
                                                 I.
                                       BACKGROUND
       Roman was found guilty by a jury of a single count of lewd and lascivious conduct with a
child under sixteen years of age, Idaho Code § 18-1508, and was sentenced to a unified life term




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with a twenty-year minimum term of confinement. Roman v. State, 125 Idaho 644, 646, 873
P.2d 898, 900 (Ct. App. 1994). At his first parole hearing, the Commission denied parole.
        Roman filed a pro se habeas corpus petition, challenging the Commission’s decision.
The Respondents moved for summary judgment. The district court granted the motion and
entered an order dismissing the petition. Roman moved to alter or amend the judgment, which
the district court denied. Roman appeals.
                                                 II.
                                            ANALYSIS
       There is no constitutionally-protected right of a convicted person to be released on parole
before the expiration of a valid sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979). If a state establishes a parole system that provides only a possibility of
parole, and not a right thereto, that possibility does not create a liberty interest that is protected
by the Due Process Clause of the United States Constitution. Id. at 11. The language of a state
parole statute may create a legitimate claim of entitlement, triggering due process protections,
but no such claim of entitlement is created by language conferring a mere possibility of
conditional liberty. See id. at 7, 11-13. It is well settled that the language of Idaho Code § 20-
223, which authorizes the Commission to grant parole in its discretion, does not generate a
legitimate expectation of parole, but merely the possibility of it. See, e.g., Izatt v. State, 104
Idaho 597, 600, 661 P.2d 763, 766 (1983); Hays v. Craven, 131 Idaho 761, 764, 963 P.2d 1198,
1201 (Ct. App. 1998); Vittone v. State, 114 Idaho 618, 619, 759 P.2d 909, 910 (Ct. App. 1988).
Therefore, because there is no liberty interest at stake, there is no constitutional right to
procedural due process in Idaho’s parole hearings. Izatt, 104 Idaho at 600, 661 P.2d at 766.
Idaho Code § 20-223(c) states that “parole shall be ordered when, in the discretion of the
commission, it is in the best interests of society, and the commission believes the prisoner is able
and willing to fulfill the obligations of a law-abiding citizen.” (Emphasis added.) Although the
subsection directs that parole be granted when it is in the best interests of society and the
prisoner is willing to fulfill the obligations of a law-abiding citizen, that determination is a
discretionary decision of the Commission that does not vest in the prisoner a legitimate
expectation of parole, but rather a mere possibility of parole. Vittone, 114 Idaho at 620, 759 P.2d
at 911. Although parole hearings are not subject to due process standards, and the decision
whether to grant parole is discretionary with the Commission, the Idaho Supreme Court has held


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that a decision denying parole is nonetheless subject to limited judicial review. Banks v. State,
128 Idaho 886, 888-89, 920 P.2d 905, 907-08 (1996); Ybarra v. Dermitt, 104 Idaho 150, 151,
657 P.2d 14, 15 (1983). “Review of Commission decisions consists of whether the information
relied upon by the Commission was sufficient to provide a factual basis for the reasons given, or
in other words, whether there was a rational basis in the record for the Commission’s
conclusions . . . .” Banks, 128 Idaho at 888, 920 P.2d at 907. See also Ybarra, 104 Idaho at 151,
657 P.2d at 15.
       Roman, generally, acknowledges the correctness of these standards, but still asserts that
the Commission wrongfully denied his request for parole. His arguments are not entirely clear,
but he seems to contend that because he claims to have been imprisoned on a “false conviction
and false evidence,” he necessarily is not a danger to society, and therefore there is no rational
basis to deny parole. Roman’s argument is without merit. It was for the jury at his trial, not the
Commission, to weigh the credibility of witnesses and determine his guilt or innocence. It is not
within the authority of the Commission to determine the validity of a conviction, nor is the
Commission obligated to accept a defendant’s view of the evidence presented at his trial.
       Roman may also be arguing that his privilege against self-incrimination was violated
because the Commission’s hearing officer asked him to describe two separate incidents of
alleged misconduct with different victims for which he was never charged.              The Fifth
Amendment privilege against self-incrimination “not only permits a person to refuse to testify
against himself at a criminal trial in which he is the defendant, but also ‘privileges him not to
answer official questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings.’” Minnesota
v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).
Roman’s allegations do not show a violation of this right. While his verified habeas corpus
petition alleges that he was questioned about alleged uncharged misconduct, and that he denied
the accusations, there is no evidence that he attempted to invoke his Fifth Amendment privilege
or that any threat or other compulsion was used to force him to respond. Therefore, Roman has
made no prima facie showing of a violation of his right against self-incrimination.
       Roman also argues that the Commission erred by considering a disciplinary offense
report because “the integrity of that finding should be allowed to be challenged.” The minutes of
the parole hearing show that Roman was permitted to address the report and that he denied its


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accuracy. Therefore, the Commission did allow him to challenge “the integrity of that finding.”
Again, however, the Commission was not obligated to believe him.
       Finally, Roman seems to contend that because he had a twenty-year history of generally
good behavior in prison, he was entitled to be paroled at the end of the fixed portion of his
sentence and that the Commission illegally “extended” his sentence by five years by scheduling
his next hearing for that time. This argument is also unavailing. When a sentence includes an
indeterminate portion, Idaho law specifically authorizes the Commission to grant parole anytime
within the indeterminate term, or it may decline to grant parole at all. I.C. §§ 19-2513, 20-
223(c). The Commission does not “extend” a sentence by denying parole. Burghart v. Carlin,
___ Idaho ___, ___, ___ P.3d ___, ___ (Ct. App. Aug. 26, 2011).
       Roman alludes to a number of other perceived errors, omissions, and wrongs, none of
which are valid or merit discussion here. We note that, contrary to Roman’s implications, a
parole hearing is not a criminal trial with the associated constitutional protections, burdens of
proof, or burden shifting. The scope of a court’s review of a parole determination by the
Commission is stringently limited, and Roman has shown no cognizable basis for relief.
Therefore, the summary judgment dismissing the petition for a writ of habeas corpus is affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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