               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41302

STEPHEN J. KINGSLEY,                            )      2014 Unpublished Opinion No. 341
                                                )
       Petitioner-Appellant,                    )      Filed: January 30, 2014
                                                )
v.                                              )      Stephen W. Kenyon, Clerk
                                                )
RANDY BLADES,                                   )      THIS IS AN UNPUBLISHED
                                                )      OPINION AND SHALL NOT
       Respondent.                              )      BE CITED AS AUTHORITY
                                                )

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

       Order summarily dismissing petition for writ of habeas corpus, affirmed.

       Stephen J. Kingsley, Boise, appellant pro se.

       Hon. Lawrence G. Wasden, Attorney General; Leslie M. Hayes, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Steven J. Kingsley appeals from the summary dismissal of his petition for writ of habeas
corpus relief. We affirm.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 1986, Kingsley was convicted of misdemeanor lewd conduct with a minor. In 2012,
he was again charged with lewd conduct with a minor. Pursuant to a plea agreement, Kingsley
pled guilty to injury to a child and agreed to undergo a psychosexual evaluation. Kingsley’s
evaluation revealed he was a high risk to reoffend and that Kingsley was not amenable to
treatment.   At sentencing, the State argued that Kingsley offered alcohol and drugs to a
developmentally disabled child in order to sexually abuse the child. Upon entry to the Idaho
Department of Correction (IDOC), Kingsley was assigned a recommended treatment program.
Kingsley’s treatment program included a recommendation to complete the Sex Offender
Treatment Program (SOTP). The recommendation to complete the program was based on


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Kingsley’s risk to reoffend, his previous lewd conduct conviction, and his current injury to a
child conviction. Participation in the IDOC recommended treatment programs is voluntary.
       Kingsley filed a petition for writ of habeas corpus relief. He alleged the IDOC was
illegally enhancing his sentence by forcing him to participate in the SOTP. Blades filed a motion
to dismiss or, alternatively, for summary judgment. The district court granted the motion for
summary judgment. Kingsley timely appeals.
                                                II.
                                           ANALYSIS
       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 may 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 County, 115 Idaho 762, 763, 769 P.2d 1134, 1135 (Ct. App. 1989). If a petitioner is
not entitled to relief on an application for a writ of habeas corpus, the decision by the petitioned
court to dismiss the application without an evidentiary hearing will be upheld. Brennan, 122
Idaho at 917, 841 P.2d at 447. When a court considers matters outside the pleadings on an Idaho


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Rule of Civil Procedure 12(b)(6) motion to dismiss, such motion must be treated as a motion for
summary judgment. Hellickson v. Jenkins, 118 Idaho 273, 276, 796 P.2d 150, 153 (Ct. App.
1990).
         Kingsley alleges his due process rights were violated when the IDOC labeled him as a
sex offender and compelled him to complete the SOTP. To determine whether an individual’s
due process rights under the Fourteenth Amendment to the United States Constitution have been
violated, a court undertakes a two-step analysis. It first determines whether the individual’s
threatened interest is a liberty or property interest under the Fourteenth Amendment. Schevers v.
State, 129 Idaho 573, 575, 930 P.2d 603, 605 (1996); Smith v. Meridian Joint Sch. Dist. No. 2,
128 Idaho 714, 722, 918 P.2d 583, 591 (1996). Only if the court finds a liberty or property
interest will it proceed to the next step, in which it determines the extent of due process
procedural protections. Smith, 128 Idaho at 722, 918 P.2d at 591. The United States Supreme
Court held that any liberty interest that is protected is generally limited to an interest in freedom
from restraint which imposed an “atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In other
words, courts look at whether the restrictions constitute a dramatic departure from the basic
conditions of prison life. Id. at 484-85. The Idaho Supreme Court adopted the “atypical and
significant hardship” test in Schevers, holding the test is applicable to claims arising under the
Idaho Constitution’s Due Process Clause. Schevers, 129 Idaho at 575-78, 930 P.2d at 605-08.
         Kingsley relies on Neal v. Shimoda, 131 F.3d 818, 821 (9th Cir. 1997). In Neal, the
Ninth Circuit reviewed the due process rights of two prisoners. The prisoners alleged their rights
were violated because Hawaii labeled them as sex offenders, required they complete the sex
offender treatment program, and conditioned their parole on completion of the treatment
program. Id. at 827. One of the prisoners had no previous sexual offenses. This prisoner was
indicted on charges of sexual offenses, but the charges were dropped pursuant to a plea
agreement. Because the prisoner had no previous sexual offense convictions, and the prison did
not give notice or an opportunity to defend against such charges, the prison improperly forced
the prisoner to obtain sex offender treatment and improperly labeled the prisoner as a sex
offender. However, the other prisoner had received appropriate due process safeguards because
he had previously been convicted of a sex offense.




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        Here, Kingsley was not compelled to attend the recommended treatment program offered
by the IDOC.        The program is completely voluntary.      Further, Kingsley’s parole is not
conditioned on whether he attends the program. Whether a defendant is granted parole is within
the “complete discretion of the [parole] Commission.” IDAPA 50.01.01.250. Kingsley has
failed to show that he was compelled to attend the treatment program or establish his potential
parole is conditioned on completion of the SOTP.
        Kingsley asserts that the IDOC “labeled” him as a sex offender by recommending he
obtain sex offender treatment; however, regardless of the asserted “label,” the recommendation
was appropriate. The IDOC recommendation was based on Kingsley’s previous sexual offense
conviction, his psychosexual evaluation, and his current conviction of injury to a child. The
State argued at Kingsley’s sentencing that alcohol and drugs were offered for sexual abuse
purposes, and Kingsley agreed to take a psychosexual examination as part of the plea agreement.
Though the injury to a child statute’s title does not expressly indicate Kingsley’s crime was a
sexual offense, for the purpose of recommending voluntary treatment, the agreement that he
obtain a psychosexual evaluation and the context at sentencing provides a basis for
recommended sex-based treatment. Kingsley does not have a right to early release from his term
of imprisonment and his choice not to attend the voluntary SOTP program does not violate any
of his constitutional rights.
        Kingsley also claims the district court’s refusal to include the IDOC, the Board of
Correction, and the Parole Commission as named parties requires reversal. However, pursuant to
the habeas relief statutes, these parties would be improperly named. See I.C. § 19-4205(5).
        Blades requests attorney fees on appeal; however, we cannot say Kingsley’s appeal is
wholly frivolous.
                                               III.
                                         CONCLUSION
        The district court did not abuse its discretion in summarily dismissing Kingsley’s petition
for writ of habeas corpus relief. Thus, we affirm the summary dismissal of Kingsley’s habeas
corpus petition. We decline to grant Blades attorney fees on appeal.
        Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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