                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 40151

STEVEN T. THOMPSON,                                )     2012 Unpublished Opinion No. 773
                                                   )
       Petitioner-Appellant,                       )     Filed: December 24, 2012
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
JOHANNA SMITH,                                     )     THIS IS AN UNPUBLISHED
                                                   )     OPINION AND SHALL NOT
       Respondent-Respondent on Appeal,            )     BE CITED AS AUTHORITY
                                                   )
OLIVIA CRAVEN, STATE OF IDAHO,                     )
                                                   )
       Respondent.                                 )
                                                   )

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

       Order dismissing petition for writ of habeas corpus, affirmed.

       Steven T. Thompson, Boise, pro se appellant.

       Johanna Smith, respondent, did not participate on appeal.
                 ________________________________________________
MELANSON, Judge
       Steven T. Thompson, an inmate, appeals pro se from the district court’s order dismissing
his petition for a writ of habeas corpus. For the reasons set forth below, we affirm.
                                                  I.
                                  FACTS AND PROCEDURE
       On June 11, 2012, Thompson filed a pro se petition for a writ of habeas corpus.
Thompson alleged that he was entitled to credit against his sentence for 1,106 days he served on
parole prior to revocation of his parole. Thompson asserted that a provision of Idaho Code § 20-
228, calling for forfeiture of time spent on parole unless the Commission of Pardons and Parole
(in its discretion) grants credit against the sentence, violates constitutional provisions relating to
due process and equal protection. The district court issued an order of dismissal, pursuant to I.C.




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§ 19-4209, prior to service on the respondents because the petition failed to state a claim of
constitutional violation upon which relief could be granted. Thompson appeals.
                                                 II.
                                   STANDARD OF REVIEW
       The writ of habeas corpus is a constitutionally mandated mechanism to effect the
discharge of an individual from unlawful confinement. See IDAHO CONST. art. I, § 5; I.C. §§ 19-
4201 to 19-4226; Mahaffey v. State, 87 Idaho 228, 231, 392 P.2d 279, 280 (1964); Gawron v.
Roberts, 113 Idaho 330, 333, 743 P.2d 983, 986 (Ct. App. 1987). The essence of habeas corpus
is an attack upon the legality of a person’s detention for the purpose of securing release where
custody is illegal and is an avenue by which relief can be sought where detention of an individual
is in violation of a fundamental right. In re Robison, 107 Idaho 1055, 1057, 695 P.2d 440, 442
(Ct. App. 1985). An in-state prisoner may file a petition for writ of habeas corpus to request that
a court inquire into state or federal constitutional questions concerning conditions of
confinement, the revocation of parole, miscalculation of a sentence, loss of good time credits, or
detainers lodged against the prisoner. I.C. §§ 19-4203(2)(a)-(e). Habeas corpus should not be
used as a substitute for, or in addition to, a direct appeal of a criminal conviction or proceeding
under Idaho Criminal Rule 35 or the Uniform Post-Conviction Procedures Act. I.C. § 19-
4203(4).
       The decision to issue a writ of habeas corpus is a matter within the discretion of the court.
Johnson v. State, 85 Idaho 123, 127, 376 P.2d 704, 706 (1962); Brennan v. State, 122 Idaho 911,
914, 841 P.2d 441, 444 (Ct. App. 1992). When we review an exercise of discretion in a habeas
corpus proceeding, we conduct a three-tiered inquiry to determine whether the lower court
rightly perceived the issue as one of discretion, acted within the boundaries of such discretion,
and reached its decision by an exercise of reason. Brennan, 122 Idaho at 914, 841 P.2d at 444;
Sivak v. Ada Cnty., 115 Idaho 762, 763, 769 P.2d 1134, 1135 (Ct. App. 1989). If a petitioner is
not entitled to relief on a petition for a writ of habeas corpus, the decision by the petitioned court
to dismiss the petition without an evidentiary hearing will be upheld. Brennan, 122 Idaho at 917,
841 P.2d at 447.




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                                                III.
                                           ANALYSIS
       Thompson argues that his right to due process was violated, he was denied equal
protection of the laws, and that the district court erred in following I.C. § 20-228 as opposed to
the case of In re Prout, 12 Idaho 494, 86 P. 275 (1906)--essentially a separation of powers
argument. Thompson’s remaining arguments will not be addressed on appeal as he failed to
raise them in his petition below. Generally, issues not raised below may not be considered for
the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991).
A.     Due Process
       Thompson first argues he was denied due process 1 because the Commission did not hold
a hearing before deciding not to credit him for time served while on parole and because there
was no avenue to appeal that decision.         The Due Process Clauses of the United States
Constitution and the Idaho Constitution forbid the government from depriving an individual of
life, liberty, or property without due process of law. U.S. CONST. amend. XIV; IDAHO CONST.
art. I, § 13. To determine whether an individual’s due process rights under the Fourteenth
Amendment have been violated, a court must engage in a two-step analysis. Schevers v. State,
129 Idaho 573, 575, 930 P.2d 603, 605 (1996); Briggs v. Kempf, 146 Idaho 172, 175, 191 P.3d
250, 253 (Ct. App. 2008). It must first decide whether the individual’s threatened interest is a
liberty or property interest under the Fourteenth Amendment. Schevers, 129 Idaho at 575, 930 at
605; Briggs, 146 Idaho at 175, 191 P.3d at 253. Only if it finds a liberty or property interest will
the court reach the next step in which it determines the extent of due process procedural
protections. Schevers, 129 Idaho at 575, 930 P.2d at 605.
       While there is a right to due process upon revocation of parole, Smith v. Idaho Dep’t of
Correction, 128 Idaho 768, 918 P.2d 1213 (1996), when and how the loss of “street time” is
communicated to an individual is not a component of due process that must precede the decision
to revoke parole.    Mattoon v. Blades, 145 Idaho 634, 638, 181 P.3d 1242, 1246 (2008),


1
        Thompson’s brief appears to rely on the federal constitution Due Process Clause.
However, to the extent it could be construed to invoke the Idaho Constitution as well, it is worth
noting that Thompson has made no showing or any compelling argument concerning how the
standards applied by the Idaho Constitution would be applied any differently than those of the
U.S. Constitution. In the absence of such a showing, this Court normally applies federal
constitutional standards. See State v. Radford, 134 Idaho 187, 190, 998 P.2d 80, 83 (2000).

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abrogated on other grounds by Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265
P.3d 502 (2011). In this case, Thompson did receive hearings before each revocation of parole
and has not shown that he was deprived of due process in those hearings.                  Therefore,
Thompson’s argument that he was deprived of due process is without merit.
B.     Equal Protection
       Thompson next asserts he was denied equal protection of the laws under the federal
constitution because there are some individuals who are given credit for time served while on
parole, yet he was denied this credit. The Equal Protection Clause of the Fourteenth Amendment
is designed to assure that those persons similarly situated with respect to governmental action are
treated similarly. City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985);
State v. Missamore, 119 Idaho 27, 33, 803 P.2d 528, 534 (1990); State v. Hayes, 108 Idaho 556,
560, 700 P.2d 959, 963 (Ct. App. 1985); see also Aeschliman v. State, 132 Idaho 397, 401, 973
P.2d 749, 753 (Ct. App. 1999) (holding equal protection requires that persons in similar
circumstances receive the same benefits and burdens of the law). Selective or discriminatory
enforcement or application of a statute may amount to an equal protection violation under the
Idaho or United States Constitution if the challenger shows a deliberate plan of discrimination
based on some unjustifiable classification. Anderson v. Spalding, 137 Idaho 509, 514, 50 P.3d
1004, 1009 (2002); Henson v. Dep’t of Law Enforcement, 107 Idaho 19, 23, 684 P.2d 996, 1000
(1984); Hayes, 108 Idaho at 560, 700 P.2d at 963. Alternatively, a “class of one” may state an
equal protection claim if he or she was intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment. Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000); Anderson, 137 Idaho at 514, 50 P.3d at 1009. Different levels
of scrutiny apply to challenges under the Fourteenth Amendment’s Equal Protection Clause.
Strict scrutiny applies to fundamental rights and suspect classes, intermediate scrutiny applies to
classifications involving gender and illegitimacy, and rational basis scrutiny applies to all other
challenges. State v. Mowrey, 134 Idaho 751, 754-55, 9 P.3d 1217, 1220-21 (2000). Under
rational basis review, the burden is on the challenging party to prove that the state’s goal is not
legitimate, that the challenged law is not rationally related to the legitimate government purpose,
and that there is not any conceivable state of facts which will support it. Id.
       Because Thompson has not alleged any facts that would trigger strict or intermediate
scrutiny, rational basis review applies. Further, Thompson has not alleged facts to demonstrate


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that, in applying I.C. § 20-228, the Commission treated him differently than any other similarly
situated parolee or effectuated any deliberate plan of discrimination based on an arbitrary or
unjustified classification. Thus, the district court was correct in concluding that Thompson’s
equal protection claim fails as a matter of law.
C.     Failure to Follow Precedent
       Thompson argues that the district court erred by failing to follow the precedent of In re
Prout and, instead, abided by the later enacted statute, I.C. § 20-228. 2 The power to define
crimes and prescribe penalties belongs to the legislative branch, while the authority to sentence
offenders who have been found guilty of those crimes lies with the judiciary. Gibson v. Bennett,
141 Idaho 270, 276, 108 P.3d 417, 423 (Ct. App. 2005). Parole is within the legislative scope of
establishing suitable punishment for various crimes. Id. Because our legislature can make any
law that is not unconstitutional and has broad powers to make laws governing pardons and
prisons, I.C. § 20-228 is a valid exercise of legislative power to define crimes and their penalties
and does not violate the separation of powers. To the extent that the two conflict, the district
court properly followed the unambiguous language of I.C. § 20-228, as opposed to In re Prout,
12 Idaho 494, 86 P. 275.
D.     Access to the Courts
       Finally, Thompson contends that, by requiring him to pay the clerk’s fee on appeal, that
he was denied access to the courts. However, Thompson paid this fee and his appeal is currently
before this Court. Therefore, the issue is moot and we will not review it. State v. Rogers, 140
Idaho 223, 227, 91 P.3d 1127, 1131 (2004) (holding if the parties lack a legally cognizable
interest in the outcome or when the issues presented are no longer live, the issues are moot and
preclude review).
                                                   III.
                                         CONCLUSION
       Because Thompson received the necessary hearings before each revocation of parole, he
has failed to demonstrate a violation of due process. Further, because Thompson failed to
demonstrate how he has been treated differently from any other similarly situated individual, his
equal protection claim fails. The district court correctly followed I.C. § 20-228 as opposed to In

2
       While Thompson characterizes this argument as one originating in due process, it is more
accurately viewed as a separation of powers argument.

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re Prout and Thompson’s claim that he was denied access to the courts is moot. Therefore, the
district court’s order dismissing Thompson’s petition for a writ of habeas corpus is affirmed.
       Chief Judge GRATTON and Judge LANSING, CONCUR.




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