Evans v. Frakes , 293 Neb. 253 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/01/2016 09:05 AM CDT
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EVANS v. FRAKES
Cite as 293 Neb. 253
Thomas Evans, appellant, v. Scott R. Frakes, director,
Nebraska Department of Correctional
Services, et al., appellees.
___ N.W.2d ___
Filed April 1, 2016. No. S-15-453.
1. Habeas Corpus: Appeal and Error. On appeal of a habeas petition, an
appellate court reviews the trial court’s factual findings for clear error
and its conclusions of law de novo.
2. Habeas Corpus. The habeas corpus writ provides illegally detained
prisoners with a mechanism for challenging the legality of a person’s
detention, imprisonment, or custodial deprivation of liberty.
3. Habeas Corpus: Probation and Parole. A parolee is in custody under
sentence and may seek relief through Nebraska’s habeas corpus statute.
4. Habeas Corpus: Proof. To secure habeas corpus relief, the prisoner
must show that he or she is being illegally detained and is entitled to the
benefits of the writ.
5. Habeas Corpus. In a petition for writ of habeas corpus, if the plaintiff
sets forth facts which, if true, would entitle him or her to discharge, then
the writ is a matter of right, the plaintiff should be produced, and a hear-
ing should be held thereon to determine questions of fact presented. If
the plaintiff fails to show by the facts alleged in the petition that he or
she is entitled to relief, then the relief is denied.
6. Habeas Corpus: Jurisdiction. A writ of habeas corpus will not lie to
discharge a person from a sentence of penal servitude where the court
imposing the sentence had jurisdiction of the offense and the person of
the defendant, and the sentence was within the power of the court to
impose, unless the sentence has been fully served and the prisoner is
being illegally held.
7. Courts: Jurisdiction. A court that has jurisdiction to make a decision
also has the power to enforce it by making such orders as are necessary
to carry its judgment or decree into effect.
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8. Habeas Corpus. A writ of habeas corpus is a proper remedy only upon
a showing that the judgment, sentence, and commitment are void.
9. ____. To release a person from a sentence of imprisonment by habeas
corpus, it must appear that the sentence was absolutely void.
10. Due Process. Applying the Due Process Clause to the facts of any given
case is an uncertain enterprise which must discover what fundamental
fairness consists of in a particular situation by first considering any
relevant precedents and then by assessing the several interests that are
at stake.
11. ____. Consideration of what procedures due process may require under
any given set of circumstances must begin with a determination of the
precise nature of the government function involved as well as of the
private interest that has been affected by governmental action.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Gerald L. Soucie for appellant.
Douglas J. Peterson, Attorney General, and George R. Love
for appellees.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Wright, J.
NATURE OF CASE
This is an appeal from the denial of a petition for a writ of
habeas corpus. The petitioner, Thomas Evans, was found to be
a habitual criminal and was sentenced to a mandatory mini-
mum of from 10 to 15 years’ imprisonment.
Evans was erroneously discharged before serving the
required sentence. Upon discovery of the error, the State
sought an arrest and commitment warrant for the return of
Evans to the Nebraska Department of Correctional Services
(Department).
The district court ordered Evans recommitted to serve the
remainder of his sentence. Evans filed an amended petition for
writ of habeas corpus, which was dismissed with prejudice.
Evans appeals. We affirm.
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EVANS v. FRAKES
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BACKGROUND
Evans was convicted of burglary and determined to be a
habitual criminal. His sentence carried a mandatory mini-
mum of 10 years’ imprisonment due to the habitual criminal
enhancement.1 He was sentenced to 10 to 15 years’ imprison-
ment with 269 days’ credit for time served.
On November 19, 2013, Evans was erroneously discharged
by the Department prior to completing his lawful sentence. At
the time of discharge, he had served the 10-year mandatory
minimum sentence, but still had 21⁄2 years remaining before he
would be eligible for mandatory discharge.
Upon discovery of the error in June 2014, the State sought
an arrest and commitment warrant for the return of Evans to
the Department to serve the remainder of his sentence. The
State’s motion was supported by the affidavit of Michael
Kenney, the then director of the Department, which affidavit
stated that the Department “erroneously released [Evans] from
custody prior to his mandatory discharge date by erroneously
deducting good time credit from [Evans’] mandatory minimum
sentence.” The district court issued an arrest and commitment
warrant on June 26, 2014, and Evans was taken back into cus-
tody on June 29. He has since been paroled and is projected to
be released from parole on May 19, 2016.
Evans petitioned for a writ of habeas corpus in the dis-
trict court for Lancaster County, Nebraska, challenging the
Department’s continuing exercise of custody. During the
hearing on the writ, Evans offered numerous exhibits that
had been disclosed during the Nebraska Legislature’s special
investigative committee hearings on this matter, including a
memorandum written by a Department official regarding the
Department’s policy for calculating an inmate’s discharge date
involving a mandatory minimum term. It states, in part:
If the court-imposed maximum term is the same as the
statutory mandatory minimum term, the inmate must
1
See Neb. Rev. Stat. § 29-2221 (Reissue 2008).
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serve the entire mandatory minimum term, minus any
credit for time served towards his mandatory discharge.
If the court imposed maximum term is longer than the
mandatory minimum term, the mandatory discharge date
with good time is compared to mandatory minimum with-
out good time. The mandatory discharge date will be the
longer of the two dates.
For example, if the court imposed a maximum term of
15 years for a habitual criminal conviction, the discharge
date would be changed to 10 years. If the court[-]imposed
. . . maximum term was 20 years or longer, then the dis-
charge date would be calculated in the normal manner.
This policy had been in existence since at least 1996, and
the Department had continued to calculate discharge dates in
this manner even after our decision in State v. Castillas.2 In
Castillas, we held that good time reductions did not apply to
mandatory minimum sentences and we set forth the specific
method for computing parole eligibility and mandatory dis-
charge dates for sentences involving a mandatory minimum.
Good time credit cannot be applied to the maximum portion
of the sentence before the mandatory minimum sentence has
been served.3 It applies only after the mandatory minimum has
been served.4
The district court dismissed Evans’ habeas petition with
prejudice. Evans appeals from that judgment.
ASSIGNMENTS OF ERROR
Evans assigns that the district court erred in denying his
petition for writ of habeas corpus. He asserts that the commit-
ment order entered on June 26, 2014, was void and unlawful
for the following reasons: (1) the unconditional discharge
of Evans was within the discretion of the Department and
2
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).
3
Id.
4
Id.
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consistent with the Department’s policy that had been in
existence since at least September 1996, (2) the affirmative
actions of the Department established a waiver such that Evans
could not be returned to custody, and (3) the procedures used
to obtain the arrest and commitment warrant were so lacking
in fundamental due process rights so as to be void and with-
out jurisdiction.
STANDARD OF REVIEW
[1] On appeal of a habeas petition, an appellate court
reviews the trial court’s factual findings for clear error and its
conclusions of law de novo.5
ANALYSIS
[2,3] Evans claims the commitment order directing his rein-
carceration was void and unlawful. The habeas corpus writ
provides illegally detained prisoners with a mechanism for
challenging the legality of a person’s detention, imprisonment,
or custodial deprivation of liberty.6 Although Evans has been
paroled, we have held that a parolee is “‘in custody under sen-
tence’” and may seek relief through our habeas corpus statute.7
It is Evans’ position that his sentence has been fully served and
that he is being held illegally.
[4,5] To secure habeas corpus relief, the prisoner must
show that he or she is being illegally detained and is entitled
to the benefits of the writ.8 In a petition for writ of habeas
corpus, if the plaintiff sets forth facts which, if true, would
entitle him or her to discharge, then the writ is a matter of
right, the plaintiff should be produced, and a hearing should
be held thereon to determine questions of fact presented.9 If
5
Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).
6
Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015).
7
Id. at 942, 869 N.W.2d at 914.
8
Anderson v. Houston, supra note 5.
9
Rehbein v. Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999).
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the plaintiff fails to show by the facts alleged in the petition
that he or she is entitled to relief, then the relief is denied.10
Jurisdiction
Evans argues that once an inmate has completed the man-
datory minimum sentence, the determination of discretionary
release on parole and/or unconditional discharge is within the
exclusive jurisdiction of the Department. He therefore asserts
the district court lacked jurisdiction to issue an arrest and
commitment warrant once the Department issued him a cer-
tificate of discharge. In support of this argument, Evans points
to Neb. Const. art. IV, § 19, which directs that the manage-
ment and control of all state penal institutions shall be vested
as determined by the Legislature. He argues that pursuant to
Neb. Rev. Stat. § 83-1,118 (Reissue 2014), the Legislature
vested the authority to determine an inmate’s release date with
the Department.
Evans’ argument is misplaced. Section 83-1,118(4) provides
that “[t]he [D]epartment shall discharge a committed offender
from the custody of the [D]epartment when the time served in
the facility equals the maximum term less good time.” Evans’
maximum term less good time was 121⁄2 years, but he was
discharged after serving only 10 years. The error was in the
computation of the amount of credit for good time. Because
Evans was not entitled to good time credit on the 10-year man-
datory minimum portion of his sentence, the Department had
no authority to credit him with good time for that portion of his
sentence. Therefore, the Department acted beyond its author-
ity in discharging Evans prior to the completion of his lawful
sentence. It had the authority to parole Evans after he served
the mandatory minimum term of 10 years, but it did not have
the authority to absolutely discharge him until he had served
121⁄2 years.
10
Id.
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[6,7] A writ of habeas corpus will not lie to discharge a per-
son from a sentence of penal servitude where the court impos-
ing the sentence had jurisdiction of the offense and the person
of the defendant, and the sentence was within the power of the
court to impose, unless the sentence has been fully served and
the prisoner is being illegally held.11 Here, it is not disputed
that the district court had jurisdiction of the offense and of
Evans’ person at the time of his conviction and sentencing in
2004, and the sentence was within the power of the district
court to impose. A court that has jurisdiction to make a deci-
sion also has the power to enforce it by making such orders as
are necessary to carry its judgment or decree into effect.12 The
court had jurisdiction to sentence Evans, and it had the power
to enforce its sentencing order.
Waiver Doctrine
Evans argues that the Department’s longstanding policy of
allowing credit for good time against mandatory minimum
sentences constituted a waiver of the requirement that those
inmates be returned to custody to serve the remainder of the
sentences imposed. Evans relies upon Shields v. Beto,13 in
which a Texas inmate was extradited to Louisiana and then
released on parole in Louisiana 10 years later, before hav-
ing completed his sentence in Texas. Eighteen years after
his release in Louisiana, the State of Texas sought to compel
the inmate to serve the remainder of his Texas sentence. The
Fifth Circuit held that Texas had demonstrated such a lack
of interest in the inmate as to waive jurisdiction over him.
A similar waiver theory was accepted by the Eighth Circuit
in a case involving the inaction of a U.S. marshal for 7
years before seeking to arrest the petitioner.14 These cases are
11
Berumen v. Casady, 245 Neb. 936, 515 N.W.2d 816 (1994).
12
State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994).
13
Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967).
14
See Shelton v. Ciccone, 578 F.2d 1241 (8th Cir. 1978).
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r­ eadily distinguishable, because they were based upon inaction
by state or government officials for such a length of time and
evidenced such a lack of interest in the defendant as to consti-
tute a waiver of jurisdiction over the defendant.
We reject Evans’ claim of waiver. We previously analyzed
waiver and other doctrines designed to grant relief to prema-
turely released prisoners in Anderson v. Houston.15 David J.
Anderson was an inmate at the Nebraska State Penitentiary. He
was serving a prison sentence of 3 to 5 years. The Department
mistakenly released Anderson after 3 months of his sentence.
When the Department discovered its mistake, it moved for
capias and notice of hearing. After the hearing, the court
ordered law enforcement to arrest Anderson. For reasons
unknown, the clerk did not issue the warrant for about 14
months. Subsequently, Anderson was arrested during a routine
traffic stop and was returned to the penitentiary. He then filed
a writ of habeas corpus in the district court. The court held an
evidentiary hearing to address the merits of Anderson’s habeas
claim and granted the writ. The Department appealed.
On appeal, Anderson argued that he was entitled to day-
for-day credit toward his sentence for the time he spent at
liberty due to his erroneous early release. He claimed that the
Department was obligated to release him no later than the date
his sentence was originally set to expire and that detaining him
beyond that date was illegal. The Department claimed that he
was not entitled to such credit and that the time spent at liberty
should be added to the sentence.
In Anderson, we discussed three distinct theories employed
by courts for granting relief to a prematurely released prison-
er.16 The first theory was based on the notions of due process
and was referred to as the “‘waiver of jurisdiction theory.’”17
15
Anderson v. Houston, supra note 5.
16
Id.
17
Id. at 925, 744 N.W.2d at 418 (quoting Schwichtenberg v. ADOC, 190
Ariz. 574, 951 P.2d 449 (1997)).
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This waiver was applied when the premature release resulted
from gross negligence by prison officials and lasted for a long
period of time.18 The government was said to have waived its
right to reincarcerate the prisoner, and the remedy was a com-
plete exoneration of the prisoner’s sentence.19
The second theory was known as the “‘estoppel theory.’”20
Under this theory, the government was estopped from rein-
carcerating the prisoner if (1) the government knew the facts
surrounding the release, (2) the government intended that the
prisoner would rely on the government’s actions or acted in a
manner that the prisoner had a right to rely on them, (3) the
prisoner was ignorant of the facts, and (4) the prisoner relied
on the government’s actions to his or her detriment.21
The third theory was to grant a prisoner day-for-day credit
for the time spent at liberty.22 In our analysis, we noted that
numerous federal appellate courts have held that the Due
Process Clause did not require credit for the time spent at
liberty.23 We stated that credit for time spent at liberty was a
common-law doctrine known as the “‘equitable doctrine.’”24
In Anderson, we declined to adopt the waiver of jurisdic-
tion or the estoppel theory. We concluded that a prematurely
released prisoner could be granted day-for-day credit for the
18
See In re Roach, 150 Wash. 2d 29, 74 P.3d 134 (2003). See, also,
Schwichtenberg v. ADOC, supra note 17.
19
See id.
20
Anderson v. Houston, supra note 5, 274 Neb. at 925, 744 N.W.2d at 419
(quoting U.S. v. Martinez, 837 F.2d 861 (9th Cir. 1988)).
21
Id. (citing Green v. Christiansen, 732 F.2d 1397 (9th Cir. 1984)).
22
See In re Roach, supra note 18.
23
Anderson v. Houston, supra note 5. See, e.g., Vega v. U.S., 493 F.3d
310 (3d Cir. 2007); Thompson v. Cockrell, 263 F.3d 423 (5th Cir. 2001)
(superseded by statute as stated in Rhodes v. Thaler, 713 F.3d 264 (5th
Cir. 2013)); Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999); Dunne v.
Keohane, 14 F.3d 335 (7th Cir. 1994).
24
Anderson v. Houston, supra note 5, 274 Neb. at 926, 744 N.W.2d at 419
(quoting Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007)).
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time spent at liberty where equity demanded such application.
Such credit is unavailable to prisoners who are aware of the
error in their early release and do not inform the Department
of the error. Such credit would not be given if the individual
committed additional crimes while at liberty.
In the case at bar, the Department did not have the author-
ity to release Evans prior to the completion of his sentence
imposed by the court. The appropriate remedy would be to
credit Evans’ time spent at liberty to the remaining time on his
sentence provided Evans commits no crimes while at liberty.
The State does not contest the determination that Evans should
receive credit for his time spent at liberty.
Due Process
Evans claims he was denied due process in the manner in
which the State sought the arrest and commitment warrant
for his return to custody. He asserts that he was not afforded
notice, a hearing, the right to confrontation, or the right to
counsel before his rearrest and reincarceration. He argues due
process should have allowed him to contest the conclusory affi-
davit of then Director Kenney, have an evidentiary hearing, and
raise the jurisdictional claims now being raised on appeal. He
claims that the failure to provide any due process renders the
arrest and commitment warrant void and beyond the authority
and jurisdiction of the district court.
[8] Evans’ claims of denial of due process involving his
rearrest and recommitment do not challenge the validity of the
original judgment of conviction or sentence. A writ of habeas
corpus is a proper remedy only upon a showing that the judg-
ment, sentence, and commitment are void.25
[9] To release a person from a sentence of imprisonment
by habeas corpus, it must appear that the sentence was abso-
lutely void.26 Evans’ due process assertion is based upon his
25
Berumen v. Casady, supra note 11.
26
Piercy v. Parratt, 202 Neb. 102, 273 N.W.2d 689 (1979).
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claim that he had completed his sentence and was being held
illegally. Evans claims that he had a constitutionally protected
“liberty” interest in the June 26, 2014, proceedings wherein
the court ordered his rearrest and reincarceration.27
[10,11] Applying the Due Process Clause to the facts of any
given case is an “‘uncertain enterprise which must discover
what “fundamental fairness” consists of in a particular situation
by first considering any relevant precedents and then by assess-
ing the several interests that are at stake.’”28 Consideration
of what procedures due process may require under any given
set of circumstances must begin with a determination of the
precise nature of the government function involved as well as
of the private interest that has been affected by governmen-
tal action.29
The governmental function was the rearrest and reincar-
ceration of Evans who had been erroneously discharged 21⁄2
years before his mandatory release date. The private interest
affected was Evan’s liberty interest in being free from con-
finement. We conclude that the rearrest and reincarceration
of Evans did not offend due process because Evans had not
completed his sentence and did not yet have a right to be free
from confinement.
Evans was not given a hearing before he was rearrested. But
before an arrest and commitment warrant could be issued, the
Department was required to make a prima facie case before an
impartial judge that Evans had not fully served his sentence
and should not have been released from the Department’s
custody. The process did not end with Evans’ rearrest. He
was subsequently given an evidentiary hearing on his peti-
tion for a writ of habeas corpus. At that hearing, Evans was
27
Brief for appellant at 43.
28
State v. Shambley, 281 Neb. 317, 324, 795 N.W.2d 884, 891 (2011)
(quoting Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct.
2153, 68 L. Ed. 2d 640 (1981)).
29
State v. Shambley, supra note 28.
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given the opportunity to contest the actions taken by the State
and to have a determination of whether he had completed the
requirements of his sentence.
We agree with the district court’s conclusion that the prede-
tention procedures coupled with the postdetention hearing on
the petition satisfied due process.
CONCLUSION
Evans has not shown that he completed the terms of his sen-
tence and that he is being illegally detained. We conclude that
his petition for writ of habeas corpus should be dismissed with
prejudice as a matter of law.
We affirm the judgment of the district court that dismissed
with prejudice Evans’ amended petition for writ of habeas
corpus.
A ffirmed.