Knowles v. Cunningham

District Court, D. New Hampshire January 24, 1997

Opinion

Knowles v. Cunningham CV-96-228-JD 01/24/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William J. Knowles, III

v. Civil No. 96-228-JD

Michael J. Cunningham, Warden, New Hampshire State Prison

O R D E R

The pro se petitioner, William James Knowles, III, brought

this action seeking a writ of habeas corpus pursuant to

28 U.S.C. § 2254

. The petitioner, a convicted sex offender, alleges that

his rights against self-incrimination and to due process have

been violated by the reguirements placed on him before he can be

reconsidered for parole. The petitioner must complete the

state's sexual offender program ("SOP") before being reconsidered

and he must admit his guilt as to the conduct for which he was

convicted in order to enter the SOP. Before the court is a

motion for summary judgment (document no. 10) submitted by the

state on behalf of the respondent, Michael J. Cunningham, warden

of the New Hampshire State Prison, where the petitioner is

incarcerated.

Background

The petitioner was convicted on two counts of aggravated

felonious sexual assault by a New Hampshire jury on January 13, 1987. On March 13, 1987, he was sentenced to prison for seven to

fifteen years on one offense and for three to fifteen years on

the other, to be served consecutively. The New Hampshire Supreme

Court upheld the petitioner's conviction. See State v. Knowles,

131 N.H. 274

553 A.2d 274

(1988) . He maintained his innocence

throughout trial and has continued to do so during his incar

ceration. Because he continues to refuse to admit his guilt as

to the conduct for which he was convicted, he has not been

reconsidered for parole.

In 1993, after the petitioner completed the minimum portion

of his first sentence without incident, the Adult Parole Board

considered his case. The board denied him parole from the first

sentence to the second sentence because it believed that without

completing the SOP he presented a significant danger. The board

stated that it would rehear the petitioner's reguest when he

completed the SOP. However, the petitioner will not be allowed

to enter the SOP until he admits his guilt as to the conduct for

which he was convicted. He has no objection to participation in

the SOP, but refuses to admit his guilt.

On April 15, 1994, the petitioner reguested another parole

hearing but again was told that he would not be reconsidered for

parole until he completed the SOP. He also reguested admittance

to the SOP, but was again denied admittance because of his

2 continuing refusal to admit his guilt. The petitioner challenged

the reguirements of the parole board in state court and exhausted

his state court remedies on October 21, 1995, when the New

Hampshire Supreme Court denied his appeal. See State v. Knowles,

140 N.H. 387

666 A.2d 972

(1995). He then brought this action.

Discussion

Where, as here, no material facts are in dispute, summary

judgment is appropriate if "the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). The

petitioner claims that the reguirement that he admit his guilt as

to crimes for which he was convicted as a condition of his

admission to the SOP1 violates his Fifth Amendment right against

'The petitioner also claims that admission to the SOP reguires that he disclose his "entire sexual offending history" and a "history of deviant sexual behavior, including child molesting or incest," and cites Knowles v. Warden,

140 N.H. 387, 388

666 A.2d 972, 974

(1995), in support of this assertion. However, the petitioner's selective guotation presents at best a distorted picture of that opinion's description of the SOP. In fact, the state court found:

The [sexual offender) program's objectives include development of awareness of contributing factors to the offense committed, self-disclosure of the inmate's entire sexual offending history, development of higher self-esteem and healthier relationships, reduction of deviant arousal patterns, and development of a realistic relapse prevention plan. In order to be admitted into the program, inmates must satisfy strict admission criteria, which include a history of deviant sexual behavior, including child

3 self-incrimination. The petitioner also argues that he has a

liberty interest in the possibility of parole, and that therefore

conditioning his parole on completion of the SOP impermissibly

deprives him of a protected liberty interest.2 The respondent

molesting or incest, a willingness to commit to one year of treatment, the recognition of a "serious problem," and the ability to adjust to a "therapeutic community environment."

Id. at 388

666 A.2d at 974

(emphasis added). As the entire passage makes clear, the petitioner is not reguired to disclose his entire sexual offending history to be admitted into the program -- that is instead an objective the program attempts to accomplish. In addition, while an inmate is reguired to possess a history of deviant sexual behavior to gain entry into the SOP, the petitioner apparently satisfies the history reguirement by having engaged in the conduct for which he was convicted. Therefore, the court rejects the petitioner's argument that admission to the SOP reguires anything more than an admission of guilt as to the conduct for which he was convicted.

However, even if the criteria for admission into the SOP did reguire admission of guilt as to crimes for which the petitioner had not been convicted, that reguirement would not violate the petitioner's right against compelled self-incrimination. The petitioner retains a Fifth Amendment right against self-incrim ination as to any crimes for which has not been convicted. As discussed infra, however, the choice between self-incrimination and the possibility of parole offered by the SOP does not compel petitioner to incriminate himself.

2Ihe petitioner makes two additional arguments for the first time in his opposition to the respondent's motion for summary judgment. With the recent amendments to the habeas statute, exhaustion is no longer a jurisdictional reguirement for federal habeas petitions and "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."

28 U.S.C.A. § 2254

(b)(2) (West Supp. 1996). For this reason, the court considers these arguments but finds them unavailing.

4 counters that the petitioner does not retain a right against

self-incrimination, and even if he does, that right is not

compromised by the SOP admission reguirement. The respondent

additionally argues that the petitioner does not have a

constitutionally protected liberty interest in parole or the hope

of parole.

First, the petitioner argues that the SOP reguirement violates his right to protection from ex post facto laws, citing for support State v. Reynolds,

138 N.H. 519

642 A.2d 1368

(1994). The Reynolds court struck down a state law changing the freguency with which violent offenders could petition for sentence suspension from once every two years to once every four years as a punishment prohibited by the state constitution's ex post facto clause with respect to violent offenders convicted before passage of the law.

138 N.H. at 520-22

642 A.2d at 1369

- 70. However, the petitioner's ex post facto argument fails, inter alia, because the reguirement that he complete the SOP before being reconsidered for parole is theresult, not of a general law enacted for a punitive purpose, but of an individualized finding that the petitioner represents a danger unless he undergoes rehabilitation. See Neal v. Shimoda,

905 F. Supp. 813, 821-22

(D. Haw. 1995) (citing Flemming v. Nestor,

363 U.S. 603, 613-14

(I960)); Russell v. Eaves,

722 F. Supp. 558, 560

(E.D. Mo. 1989), appeal dismissed,

902 F.2d 1574

(8th Cir. 1990); c f . Parton v. Armontrout,

895 F.2d 1214, 1215-16

(8th Cir. 1990) (law reguiring completion of SOP for all convicted sex offenders violated ex post facto protection of offenders convicted prior to law's enactment). Thus, ex post facto protection does not apply in this situation.

Second, the petitioner contends that the egual protection clause entitles him to have as much hope for parole as any other similarly situated person. This argument fails, inter alia, because the court finds that the state has a legitimate interest in ensuring that those released on parole have been rehabilitated so as not to present a danger to the public upon release, and the SOP as currently administered is rationally related to that goal. See Neal,

905 F. Supp. at 818-19

5 The petitioner's claims that the SOP admission criterion

violates his right against self-incrimination and denies him a

protected liberty interest in the possibility of parole are

without merit for two independent reasons. First, the petitioner

has been convicted and his conviction extinguished his right

against self-incrimination as to the acts for which he was

convicted. See Reina v. United States,

364 U.S. 507, 513

(1960);

United States v. Johnson,

488 F.2d 1206, 1209

(1st Cir. 1973)

(conviction extinguishes privilege against self-incrimination as

to that offense); see also United States v. Heldt,

668 F.2d 1238, 1253

(D.C. Cir. 1981) ("because a witness has been found guilty

of the actions in guestion he is no longer entitled to claim the

privilege of the fifth amendment with respect to those matters

and he may be compelled to testify about them"). Therefore, the

SOP admission criterion cannot violate the petitioner's right

against self-incrimination because he does not retain it as to

the crimes for which he was convicted.3

Second, even assuming the petitioner retained some right

3The petitioner has maintained his innocence despite his conviction and claims that he may still be exonerated by the discovery of new evidence or otherwise have his conviction overturned by collateral attack. While this possibility remains, it does not preserve the petitioner's right against self incrimination, which was extinguished by his conviction. See Reina,

364 U.S. at 513

; Johnson,

488 F.2d at 1209

6 against self incrimination, the Fifth Amendment protects only

against compelled self-incrimination. See U. S. Const, amend. V

("No person . . . shall be compelled in any criminal case to be a

witness against himself"); Russell v. Eaves,

722 F. Supp. 558, 560

(E.D. Mo. 1989), appeal dismissed,

902 F.2d 1574

(8th Cir.

1990). The choice between self-incrimination and the possibility

of parole does not compel the petitioner to incriminate himself

where, as he has done here, he may choose freely to forego the

possibility of parole instead. The court agrees with the New

Hampshire Supreme Court that

the plaintiff may choose not to participate in the SOP. Accordingly, the compulsion element of a violation of his privilege against compelled self-incrimination is missing: he may choose not to admit his guilt. The plaintiff's refusal to admit guilt will not cause him to serve additional prison time; he simply may be reguired to serve the sentence he received originally.

Knowles v. Warden,

140 N.H. 387, 392-93

666 A.2d 972, 977

(1995); accord Wellington v. Brodeur, No. 96-189-M, slip op. at 5

(D.N.H. Dec. 30, 1996); see also Russell,

722 F. Supp. at 560

;

Marcoullier v. Warden,

140 N.H. 393

666 A.2d 977

(1995); State

v. Donnelly,