                   IN THE SUPREME COURT OF IOWA
                               No. 07–1459

                         Filed December 16, 2011


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 A. 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

crimes 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 conviction 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”).
                                       4

      Even if we were to reach the issue, we find no ex post facto

violation. Brandon’s third-degree kidnapping offense occurred in 2004.

Under Holm, crimes committed after January 1, 2001, can be used to

require participation in SOTP without violation of the ex post facto

clauses.   Holm, 767 N.W.2d at 416–17.           A third-degree kidnapping

conviction may contain a sexual element. See Iowa Code § 710.1 (“[T]o

constitute kidnapping the act must be accompanied by one or more of

the following . . . the intent . . . to subject the person to a sexual abuse.”);

id. § 710.4 (defining third-degree kidnapping as any kidnapping that is

not first or second-degree kidnapping).        IDOC requires an inmate to

participate in SOTP if his underlying offense contains a sexual element or

if he is required to register with Iowa Sex Offender Registry.

      Brandon conceded in the postconviction relief proceedings that his

kidnapping conviction was an appropriate basis for IDOC to require

SOTP participation. Specifically, in his trial brief Brandon acknowledged,

“He is appropriately required to do SOTP. One of his crimes requiring

treatment, Kidnapping, occurred in 2004.” The record further indicates

Brandon’s 2004 kidnapping involved the rape of a woman at knifepoint.

This provides the sexual element needed to require SOTP. Accordingly,

on the basis of our decision in Holm, we find no merit to Brandon’s claim

of an ex post facto violation.

      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
                                     5

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, 783 N.W.2d 490 (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.   Id. at 494.   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. at 494 (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,

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 495 (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
                                        6
        [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 497. 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.

(quoting 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

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,


          is important to note that Reilly did not require either the notice or the
        1It

explanation to be in writing.
                                         7

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

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




       2The author of the progress review note was Brad Hoenig who, from the record,
appears to have been one of Brandon’s counselors.
                                    8

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, 783 N.W.2d at 497.

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

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
                                     9

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 498; 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

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.
                                      10



       D. Adequacy of September 1, 2010 Administrative Rehearing.

In response to Brandon’s petition for rehearing, we directed the parties to

file   supplemental      briefs   addressing    whether    the     subsequent

administrative rehearing process in which Brandon participated rendered

his due process claims moot.        His appeal was resubmitted after the

additional briefings were filed this year. We determine that the “do over”

administrative rehearing renders moot Brandon’s due process claims

based on the alleged inadequacy of notice and written findings in his

prior hearing process.

       On July 9, 2010, Brandon received a written removal rehearing

notice and a packet of information SOTP personnel had relied upon to

justify his previous SOTP removals.            On September 1, Brandon

participated in the removal rehearing before an administrative law judge

(ALJ). Brandon was provided the opportunity to present evidence at this

rehearing.   On February 4, 2011, the ALJ issued a written decision

affirming each of Brandon’s SOTP removals.         Brandon’s administrative

appeal was denied on February 9. We conclude the foregoing satisfied

the due process requirements set forth in Reilly. Accordingly, Brandon’s

due process claims in his petition for rehearing are moot. In re M.T., 625

N.W.2d 702, 704 (Iowa 2001) (holding action is moot when a decision

would have no practical legal effect on the controversy because the

contested issue has become academic or nonexistent).                Brandon,

therefore, is entitled to no relief on rehearing in this appeal.

       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
                                    11

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.
