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Ehlers v. Smoot

United States District Court, D. Minnesota

January 22, 2019

Edwin A. Elhers, Petitioner,
v.
Patricia W. Smoot, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable Leo I. Brisbois United States Magistrate Judge

         This 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].

         For the reasons set forth below, the Court recommends that the Petition for Writ of Habeas Corpus, [Docket No. 1], be DENIED without prejudice.

         I. BACKGROUND

         On 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. at 3).[1]

         Petitioner's 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]).

         On 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.).

         On 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.).[2] On February 6, 2018, Petitioner appealed this January 10, 2018, decision. (Exhibit F [Docket No. 11-1]).

         On 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]).

         On 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]).

         On June 29, 2018, Petitioner filed the present Petition. (Petition [Docket No.1]).[3] 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]).

         Upon 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. (Id.).

         On 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).

         II. Petitioner for Writ of Habeas Corpus. ...


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