                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3822
                                   ___________

Gregory James Davis,                *
                                    *
            Appellee,               *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * District of North Dakota.
Timothy Schuetzle, Warden of North  *
Dakota State Penitentiary,          *         [UNPUBLISHED]
                                    *
            Appellant.              *
                               ___________

                         Submitted: June 19, 2002

                              Filed: July 25, 2002
                                   ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

      North Dakota State Penitentiary (NDSP) Warden Timothy Schuetzle (State)
appeals from the district court’s order granting inmate Gregory James Davis’s
28 U.S.C. § 2254 petition. We reverse.

       In 1994, Mr. Davis signed an agreement to plead guilty, in North Dakota state
court, to gross sexual imposition. The agreement noted the statutory maximum prison
term of 20 years and stated that if Mr. Davis’s sentence included probation, he was
“aware that the violation of any condition of probation may result in a revocation of
probation, at which time the Court may impose any sentence that was available at the
time of the initial sentencing or deferment as provided by law.” Mr. Davis was
sentenced to 10 years imprisonment, specifically, 6 years imprisonment with the
balance suspended for 4 years commencing after the period of incarceration. At the
sentencing hearing, the state court warned him that if he violated his probation, he
could “then be sentenced to the full 20 years.” Additionally, the written order
provided: “Upon revocation of probation, the Court may impose any other sentence
that was available at the time of the initial sentencing or deferment as provided by
law.”

       In 1999, while Mr. Davis was still incarcerated, the State petitioned to revoke
his probation. At the revocation hearing, Mr. Davis, represented by counsel, admitted
that he was in noncompliance with a probation condition requiring him to “[a]ttend,
participate in, cooperate with and successfully complete” NDSP’s sex-offender
treatment program. Mr. Davis also admitted that he would not be able to complete
the program within the time remaining on the incarceration portion of his sentence.
Consequently, the state court imposed a revocation sentence of 20 years
imprisonment, with credit for time served. Mr. Davis promptly filed a sentence-
reduction motion, which the state court denied.

       The state trial court dismissed Mr. Davis’s subsequent application for
postconviction relief, and the North Dakota Supreme Court affirmed. Specifically,
the state supreme court concluded that under state case law and N.D. Cent. Code
§ 12.1-32-07(6) (1993), the trial court could require Mr. Davis to successfully
complete a sex-offender treatment program while in prison as a prior condition of
probation, and upon revocation of probation the court could sentence him to any
sentence that was available initially. The court also held that the trial court had not
violated due process, because section 12.1-32-07(6) gave Mr. Davis notice that he
could be resentenced to more than the sentence’s suspended portion, and the trial
court’s remarks at sentencing and the criminal judgment had made it clear that

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Mr. Davis was required to complete the program as a condition to probation. See
Davis v. State, 625 N.W.2d 855, 858-59 (N.D. 2001).

       Mr. Davis thereafter filed his petition for section 2254 relief, claiming as
relevant that his resentencing violated due process. The district court concluded that
increasing Mr. Davis’s incarceration through the legal fiction of calling the
successful-treatment requirement a prior condition of probation violated the court’s
concept of due process. The court thus directed the State to establish a presumptive
release date for Mr. Davis based on his original 10-year sentence.

       On appeal, the State argues, inter alia, that the district court improperly granted
relief based on a due process claim not asserted in the section 2254 petition, that
Mr. Davis presented only a state-law sentencing issue, and that he received sufficient
notice of the terms and conditions of his probation to satisfy due process.

       Having reviewed the factual findings for clear error, and questions of law or
mixed questions of law and fact de novo, see Johnston v. Luebbers, 288 F.3d 1048,
1051 (8th Cir. 2002), we conclude that Mr. Davis’s pro se habeas petition raised the
due process claim upon which the district court granted relief: his petition twice
mentioned due process violations with respect to resentencing and referred to two
attached briefs for details. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam) (holding pro se complaint to less stringent standards than formal pleadings
drafted by lawyers). Consequently, Mr. Davis raised more than a state-law sentencing
issue.

      Turning to the merits of the district court’s decision, we conclude that the court
erred because the state court’s holding that Mr. Davis was on notice was not
unreasonable. See 28 U.S.C. § 2254(d)(2) (state inmate’s habeas petition shall not
be granted with respect to any claim that was adjudicated on merits in state court
proceedings unless adjudication of claim resulted in decision that was based on

                                           -3-
unreasonable determination of facts in light of evidence presented in state court
proceeding). Mr. Davis was warned at sentencing that if he violated his probation,
he could “then be sentenced to the full 20 years.” This could reasonably be
interpreted to mean that if Mr. Davis did not complete the sex-offender treatment
program, he could be sentenced to serve the entire 20 years. The plea agreement and
the written judgment provided him with further notice that he faced incarceration for
the full 20 years if he violated a probation condition by failing to complete the
program. See Lambert v. California, 355 U.S. 225, 228 (1957) (“Engrained in our
concept of due process is the requirement of notice.”).

      Accordingly, we reverse.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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