                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                               Docket No. 39132

IN THE MATTER OF THE APPLICATION )                             2012 Unpublished Opinion No. 359
FOR WRIT OF HABEAS CORPUS.                                 )
---------------------------------------------------------- )   Filed: February 7, 2012
WILLIAM GORDON PARKS, JR.,                                 )
                                                           )   Stephen W. Kenyon, Clerk
         Petitioner-Appellant,                             )
                                                           )   THIS IS AN UNPUBLISHED
v.                                                         )   OPINION AND SHALL NOT
                                                           )   BE CITED AS AUTHORITY
PAM SONNEN, IDAHO PAROLE                                   )
COMMISSION, SOUTH IDAHO                                    )
CORRECTIONAL INSTITUTION, IDAHO )
DEPARTMENT OF CORRECTION,                                  )
                                                           )
         Respondents.                                      )
                                                           )

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

        Order denying petition for writ of habeas corpus, affirmed.

        William G. Parks, Jr., Boise, appellant pro se.

        Respondent did not participate on appeal.
                 ________________________________________________
GRATTON, Chief Judge
        William Gordon Parks, Jr. appeals from the district court’s denial of his petition for a writ
of habeas corpus. Parks contends the district court erred in its denial and the writ is warranted
because of violations of his state and federal constitutional due process rights in the underlying
criminal proceedings and in being denied parole. For reasons set forth below, we affirm.
                                                         I.
                                        FACTS AND PROCEDURE
        Parks was arrested for aiding and abetting a forgery, which charge resulted in revocation
of probation in a prior burglary case. Parks filed a pro se petition for a writ of habeas corpus in
the district court arguing that the underlying state felony conviction violated his state and federal
constitutional rights because the charge was never brought before a grand jury.             He also

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contended that because there is no apparent reason why the Commission refused parole in this
circumstance and because offenders are “presumed released from custody upon the completion
of their fixed sentences,” the sentence is excessive and he should be released. The district court
dismissed the petition in its entirety before service on the respondents for two reasons: (1) the
validity of a conviction cannot be challenged through habeas corpus relief; and (2) that “it would
be difficult to think of a more rational reason not to grant a prisoner parole, than the fact that he
had previously violated parole, when he was afforded such an opportunity.” Parks filed a motion
to reconsider, which was denied. 1
       Parks appeals the dismissal of the petition for a writ of habeas corpus and he presents six
issues to this Court: (1) whether the district court erred by failing to rule on federal and state
constitutional violations; (2) whether the constitutional violations were intentionally allowed to
continue; (3) whether the district court adhered to constitutional requirements; (4) whether the
district court is required to uphold the state and federal constitutions; (5) whether the district
court’s decision is grounds for a charge of treason; and (6) whether the district court erred in
failing to address the requirements within Idaho statutes.
                                                 II.
                                          DISCUSSION
       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; Idaho Code
§§ 19-4201 through 19-4226; Mahaffey v. State, 87 Idaho 228, 231, 392 P.2d 279, 280 (1964);
Gawron v. Roberts, 113 Idaho 330, 333-34, 743 P.2d 983, 986-87 (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 a 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


1
       The district court entered a final judgment on January 12, 2012, upon temporary remand
from this Court.


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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
(1) rightly perceived the issue as one of discretion, (2) acted within the outer boundaries of such
discretion and consistently with any legal standards applicable to specific choices, and
(3) 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 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.
       Here, Parks asserts that he is entitled to relief on his petition for a writ of habeas corpus.
Parks’ arguments contained within his petition can be consolidated into two basic claims: (1) the
procedures to convict him of the underlying felony for which he is serving time were improper
and violative of his Fifth and Fourteenth Amendment rights to due process under the United
States Constitution; and (2) the denial of parole without reason was improper. All of the other
issues presented by Parks in his petition are conditioned upon the validity of these two assertions.
A.     Whether the Underlying Felony Conviction Was Improper
       Parks argues the State violated his due process rights, among others, pursuant to Article 6
and the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution; Article 1 of
the Idaho Constitution; Articles 7 through 9 of the Universal Declaration of Human Rights; and
United States v. Wells, 163 F. 313 (D. Idaho 1908). The core of his argument rests on the fact
that the felony charge upon which he was convicted was never brought before a grand jury. In
support of his position he cites to the Fifth Amendment of the United States Constitution and
numerous Idaho statutes regarding presentment by a grand jury and indictment.
       To begin, a petition for a writ of habeas corpus is not the appropriate avenue to directly
appeal the validity of a criminal conviction. I.C. § 19-4203(4). Rather, to challenge the validity
of a conviction, a defendant is required to use a post-conviction application for relief. See I.C.


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§ 19-4901(a)(1),(7); Uniform Post-Conviction Procedure Act (I.C. §§ 19-4901 through 19-4911);
McKinney v. Paskett, 753 F. Supp. 861, 864 (D. Idaho 1990). A petition for a writ of habeas
corpus may be used to challenge the conditions of a person’s confinement, but not for contesting
a conviction. McKinney, 753 F. Supp. at 864. Nonetheless, as the Uniform Post-Conviction
Procedure Act is construed as an expansion of the writ of habeas corpus, and substance governs
over form, a properly raised issue may be considered without requiring a separate petition to be
filed. See Palmer v. Dermitt, 102 Idaho 591, 593, 635 P.2d 955, 957 (1981) (treating petition for
writ of habeas corpus as petition for post-conviction relief). Assuming, without deciding, that
the validity of Parks’ conviction was properly raised, the district court was indeed correct in
dismissing his claim that it was invalid due to a failure to indict.
          On any felony criminal charge, the State may proceed by indictment or information.
IDAHO CONST. art. I, § 8 (“No person shall be held to answer for any felony . . . unless on
presentment or indictment of a grand jury or on information of the public prosecutor . . . .”
(emphasis added)); I.C. § 19-901; I.C.R. 7(a). Informations have long been held to be of equal
dignity with indictments, subject to the limitations that a defendant may only be accused by
information after commitment by a magistrate and that an information cannot be issued if the
charge has been previously brought before and ignored by a grand jury. In re Winn, 28 Idaho
461, 462, 154 P. 497, 498 (1916); see also State v. Edmonson, 113 Idaho 230, 233, 743 P.2d 459,
462-43 (1987). If, instead of proceeding by information, the charge is to be brought before a
grand jury for indictment, Parks is correct in asserting that presentment and an indictment must
rest on the concurrence of at least twelve grand jurors. I.C. § 19-1201. What Parks has not
recognized, is that in line with state constitutional and statutory requirements, the district courts
of this state have jurisdiction to hear felony cases after a preliminary examination and filing of an
information--without the charge ever being before a grand jury. I.C. § 19-1301 (Courts “possess
and may exercise the same power and jurisdiction to hear, try, and determine prosecutions upon
information for crimes . . . as they possess and may exercise in cases of like prosecutions upon
indictments.”); Winn, 28 Idaho at 462, 154 P. at 498. The defendant in Winn made a nearly
identical argument to that which Parks makes regarding the insufficiency of a charge by
information. The claim was rejected then because Winn was held to answer for the charge upon
information before it was ever brought before a grand jury and is rejected now for the same
reason.


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        Moreover, federal constitutional requirements do not change this outcome. For over a
century, the United States Supreme Court has held that while federal felony prosecutions must
be brought before a grand jury, the same is not required in state prosecutions: A state felony
prosecution proceeding by information, as a substitute for indictment, is not violative of the due
process required in the Fifth and Fourteenth Amendments where there is an examination and
commitment by a magistrate certifying a finding of probable cause, aid of counsel, and a right to
cross-examine the prosecution’s witnesses. Hurtado v. California, 110 U.S. 516 (1884); see also
Albright v. Oliver, 510 U.S. 266, 272 (1994) (“Hurtado held that the Due Process Clause did not
make applicable to the States the Fifth Amendment’s requirement that all prosecutions for an
infamous crime be instituted by the indictment of a grand jury.”). This process is afforded
through Idaho’s criminal procedures and, therefore, does not violate a defendant’s constitutional
right to due process. As such, Parks’ claim is without a basis in law and was properly dismissed
by the district court.
B.      Whether the Denial of Parole Was Improper
        Parks also argues that it was improper for the Commission to deny parole for no apparent
reason. In addition, Parks argues that the denial of parole makes his sentence excessive and
violated his due process rights under the Fifth and Fourteenth Amendments of the United States
Constitution, as prisoners are “presumed released from custody upon the completion of their
fixed sentences.”
        Parks’ first argument, that there is no actual reason why the Commission denied his
review, is akin to alleging there is no rational basis for the Commission’s decision. While an
inmate is not entitled to a written statement of the reasons for denial of parole, the record needs
to demonstrate there is a rational basis for the Commission’s conclusion. Hays v. State, 132
Idaho 516, 521, 975 P.2d 1181, 1186 (Ct. App. 1999). So long as it is rational, a parole
determination is at the complete discretion of the Commission. Idaho Administrative Procedure
Act (IDAPA) § 50.01.01.250.01; see also I.C. § 19-2513. It is the responsibility of the appellant
to provide a sufficient record to substantiate his or her claims on appeal. Powell v. Sellers, 130
Idaho 122, 127, 937 P.2d 434, 439 (Ct. App. 1997). In the absence of an adequate record on
appeal to support the appellant’s claims, we will not presume error. Id. Parks asserts that he was
“denied a parole date upon completion of anger management and moral reconation therapy
programs, for no apparent reason.” However, Parks failed to include any evidence in the record


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of the parole proceedings. Moreover, as noted by the district court, review of denial of parole is
only whether there is a rational basis for such denial. Drennon v. Craven, 141 Idaho 34, 35, 105
P.3d 694, 695 (Ct. App. 2004). Commission rules provide that “the failure or success of
previous probation and parole” is a factor in considering parole. IDAPA § 50.01.01.250.01(a)-
(c). Parks states that he is presently incarcerated on a probation violation under his burglary
conviction caused by an aiding and abetting a forgery charge. Despite Parks’ failure to include
information from the parole proceeding in the record, it is apparent that a rational basis for denial
of parole exists.
        Next, we address Parks’ constitutional arguments. Contrary to Parks’ assertions, there is
no constitutionally protected right to parole. Hays v. Craven, 131 Idaho 761, 764, 963 P.2d
1198, 1201 (Ct. App. 1998). The United States Supreme Court has held that no constitutional
right attaches to the mere possibility of conditional liberty.      See Greenholtz v. Inmates of
Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979); Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 577 (1972). The Idaho Supreme Court has concluded that Idaho statutes do
not provide a legitimate expectation of parole, but merely the possibility thereof. See Izatt v.
State, 104 Idaho 597, 600, 661 P.2d 763, 766 (1983). Additionally, we have held that our
statutory procedures protect an inmate’s limited expectation of parole and absent an allegation
that such procedures were not followed, we will not presume error. See Hays, 132 Idaho at 521,
975 P.2d at 1186. Parks has not alleged, nor do we find in the record, any violation of parole
procedures.
        Lastly, as there is no legitimate expectation of parole, there is also no presumption that a
prisoner is to be released after serving the determinate period of his sentence. The cases Parks
cites do not support his conclusion. For example, in State v. Oliver, 144 Idaho 722, 170 P.3d 387
(2007), the Idaho Supreme Court stated, “We presume that the fixed portion of the sentence will
be the defendant’s probable term of confinement.” Id. at 726, 170 P.3d at 391. The Idaho
Supreme Court did not make this statement as a command to the Commission or Department of
Correction to release prisoners upon completion of the determinate periods of their sentences.
Rather, it made the statement with respect to the Court’s own lack of jurisdiction to decide
sentencing matters at that stage and in recognition of the discretion the Commission holds in
determining whether to grant or deny parole during the indeterminate period of confinement.




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                                                  III.
                                         CONCLUSION
       The State did not violate Parks’ due process rights when it proceeded on the felony
criminal charge by way of information. Likewise, Parks has failed to show that there was any
constitutional violation when the Commission denied Parks parole. These conclusions dispose
of all other issues presented by Parks on appeal. Therefore, we affirm the district court’s denial
of Parks’ petition for a writ of habeas corpus.
       Judge LANSING and Judge MELANSON CONCUR.




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