United States District Court, D. Minnesota
Edwin A. Elhers, Petitioner,
Patricia W. Smoot, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Leo I. Brisbois United States Magistrate Judge
matter came before the undersigned United States Magistrate
Judge pursuant to a referral for report and recommendation in
accordance with the provisions of 28 U.S.C. § 636 and
Local Rule 72.1, as well as, upon Petitioner Edwin A.
Elhers' (hereinafter “Petitioner”) Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
[Docket No. 1].
reasons set forth below, the Court recommends that the
Petition for Writ of Habeas Corpus, [Docket No. 1], be
DENIED without prejudice.
August 21, 2007, Petitioner-then a member of the United
States Marine Corps-was convicted of sodomy with a child
under the age of twelve years of age, assault consummated by
a battery upon a child under the age of sixteen years of age,
and indecent liberties with a child under the age of sixteen
years of age. (General Court Martial Order, [Docket No.
11-1], at 1-3). As a result of that conviction, Petitioner
was dishonorably discharged, sentenced to a period of
confinement of nineteen years, reduced in pay grade to E-1,
and required to forfeit all pay and allowances. (Id.
period of confinement began at Camp Pendleton, California;
however, he was later transferred to the United States Bureau
of Prisons' Federal Correctional Institution in
Sandstone, Minnesota. (See, Exhibit C [Docket No.
11-1]). At the time he filed the present Petition, Petitioner
was residing at a Residential Reentry Center (hereinafter
“RRC”) in Minneapolis, Minnesota. (Petition
[Docket No. 1]).
December 1, 2017, the United States Parole Commission, issued
a Notice of Action ordering that when Petitioner was released
to parole he would be subject to the mandatory Special Sex
Offender Aftercare Condition for the “mandatory
supervision term that will expire on” August 20, 2026.
(Exhibit C [Docket No. 11-1]). That Notice of Action further
informed Petitioner that the Special Sex Offender Aftercare
Condition required him to participate in a mental health
program. (Id.). As part of that program, Petitioner
was “expected to acknowledge [his] need for treatment .
. . .” (Id.).
January 10, 2018, the United States Parole Commission issued
a second Notice of Action ordering that Petitioner reside at
a Residential Reentry Center for no more than 120 days.
(Exhibit D [Docket No. 11-1]). The Notice of Action indicated
that the Commission had reached its decision based on a
request from Petitioner's case manager after Petitioner
was unable to secure a release plan satisfactory to the case
manager. (Id.). On February 6, 2018, Petitioner
appealed this January 10, 2018, decision. (Exhibit F [Docket
February 6, 2018, the Commission issued a third Notice of
Action imposing upon Petitioner an additional special
condition which prohibited Petitioner from “any contact
with any child under age 18, including [Petitioner's] own
children or step-children, except with the prior written
approval of [his] Probation Officer.” (Exhibit E
[Docket No. 11-1]). On February 22, 2018, Petitioner appealed
this third Notice of Action. (Exhibit G [Docket No. 11-1]).
February 22, 2018, the National Board of Appeals denied both
of Petitioner's appeals, and it affirmed the January 10,
2018, Notice of Action, as well as, the February 6, 2018,
Notice of Action. (Exhibit H [Docket No. 11-1]).
29, 2018, Petitioner filed the present Petition. (Petition
[Docket No.1]). In his Petition, Petitioner asserts two
grounds for relief. (See, Id.). First,
Petitioner avers that “[t]he use of sweeping
conditions, without individualized assessment, to deny”
him “parental rights creates a greater deprivation of
his liberty than reasonably necessary” and “[t]he
de facto termination of” Petitioner's
“parental rights, without due process, violated his
First, Fifth, and Eight[h] Amendment Rights.”
(Pet.'s Mem., [Docket No. 2], at 22-26). Next, Petitioner
asserts that “[s]ubjecting [him] to Aftercare treatment
conditions with an ‘Acknowledgment' Requirement, in
light of his continuing innocence claims, is unconstitutional
compulsion amounting to a violation of”
Petitioner's “Fifth and Sixth Amendment
rights.” (Id. at 26-27). Petitioner
specifically points out that he is not challenging his
conviction in this Court. (Petition [Docket No. 1]).
Order of this Court, [Docket No. 4], Respondents filed a
Response to the Petition on August 22, 2018, in which
Respondents argue that this Court lacks subject matter
jurisdiction over Petitioner's claims. (Response [Docket
No. 10]). Alternatively, Respondent argues that
Petitioner's challenge to his condition of release
requiring him to acknowledge his need for treatment is not
ripe for review, and Respondents further argue that the
Petition should be denied on the merits because Petitioner is
not entitled to review of his conditions of release.
September 19, 2018, Petitioner filed his Reply. [Docket No.
14]. In his Reply, Petitioner, acknowledging that the claim
was not ripe for review, withdrew the portion of his Petition
challenging the requirement that he acknowledge his need for
sex offender treatment. (Pet.'s Reply, [Docket No. 14],
at 1). Petitioner asserted that he continued to challenge
“the special release condition imposed by the U.S.
Parole Commission that restricts contact with his BIOLOGICAL
children . . . .” (Id.). Petitioner again
specifically noted that he “is not arguing his wrongful
conviction in this Court since its being argued in CAAF court
where his wrongful conviction can be vacated.”
(Id. at 2).
Petitioner for Writ of Habeas Corpus. ...