1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41226
TERRENCE MATTHEWS,
Petitioner-Appellant ,

v.
OLIVIA CRAVEN, et al. , Respondents

. ) ) ) ) ) ) ) ) ) ) 2014 Unpublished Opinion No. 664

Filed: August 13, 2014
Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Daniel C. H urlbutt , District Judge.
Order denying petition for writ of habeas corpus, affirmed

. Terrence Matthews, Emmett, pro se appellant.
Respondent did not participate on appeal.

________________________________________________ GUTIERREZ, Chief Judge
Terrence Ma tthews appeals from the district court ’ s order denying his petition for a writ of habeas corpus. Matthews ’ petition sought to overturn the revocation of his parole by the Idaho Commission of Pardons and Parole (Commission) for alleged due process violatio ns in the
Commission ’ s proceedings

. For reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE We summarized the underlying facts in our decision affirming the dismissal of Matthews ’ first petition for writ of habeas corpus: In 1991, Matthews was co nvicted of two counts of lewd conduct with a child under sixteen and two counts of sexual abuse of a child under sixteen. He received four concurrent unified sentences of fifteen years , with five years determinate. See State v. Matthews , 124 Idaho 806, 864 P.2d 644 (Ct. App. 1993). In 1996, Matthews was paroled, but his parol e was revoked in February 2002. In May 20 02, Matthews was again paroled. On July 29, 20 05, he was arrested on an agent ’ s warrant for again violating term s and conditions of his pa role. A preliminary hearing on the alleged violations was conducted on August2 16, 2005, after tw ice being continued at Matthews ’ request. On October 21, 2005, an evidentiary parole violation hearing was held before a hearing officer, after also be ing twi ce continued at Matthews ’ request. Matthews was represented by counsel and was allowed to cross

- examine adv erse witnesses at this hearing. On January 3, 2006, the hearing officer issued a written decision finding that Matthews had committed numerous viol ations, including numerous unauthorized contacts with minor children, frequenting places where minors congregate, using the Internet without permission, failing to inform an employer of his criminal convictions, leaving the state and the supervising distri ct without permission, frequenting bars, failing to comply with sex offender treatment, changing residences without permission, and failing to submit monthly reports to his parole officer. On these findings, the hearing of ficer recommended that Matthews ’ parole be revoked. Matthews was given a copy of the hearing officer ’ s decision on January 25, 2006. The hearing officer ’ s decision was forwarded to the Commission, and a final dispositional hearing was scheduled before the Commission for February 1, 200 6 [,] to determine whether Matthe ws ’ parole would be revoked. That he aring was continued at Matthews ’ request to March 15, 2006 [,] to en able his counsel to be present. The March 15 hearing began, but could not be finished beca use Matthews became hysterica l. On April 13, 2006, the disposition al hearing was completed. Matthews ’ counse l was present at both hearings. The minutes of the March and April hearings indicate that two witnesses testified adversely to Matthews, but imply that Matthews was not allow ed to cross

- examine them. In a written decision, the Commission adopted the factual findings of the hearing officer concerning the parole violations and elected to revoke Matthews ’ parole. The Commission ’ s decision states that “ the reasons of the Commiss ion for revoking and denying parole are based solely on the findings of the hearing officer, not on testimony from any witnesses at this revocation hearing. ” Matthews filed a verified petition for a writ of habeas corpus seeking to overtur n the revocation of his parole. The petition alleged, among ot her things, that the Commission ’ s hearing officer violated a governing statute when she did not issue her decision within twenty days after the October 21, 2005 [,] hearing and that t he Commission violated Matt hews ’ right to d ue process by disallowing

cross

- examination of the witnesses at the dispositional hearings. The respondents moved for summary judgment, and the magistrate granted the motion. The magistrat e held that certain of Matthews ’ claims of error by the Commission and the hearing officer failed as a matter of law and that Matthews was not entitled to relief on other alleged errors. Matthews appealed to the district court, which affirmed the magistrate in all respects.

Matthews v . Jones , 147 Idaho 224, 226

- 27, 207 P.3d 200, 202

- 03 (Ct. App. 2009) . Matthews appealed to this Court and we affirmed the grant of summary judgment dismissing Matthews ’ petition. Id . at 231, 207 P.3d at 207.3 In October 2011, Matthews filed another peti tion for writ of habeas corpus regarding a polygraph examination he apparently failed, which, he contended, led to revocation of his parole
in 2006. He alleged that i n June 2010, he submitted a video recording of the polygraph
examination that showed he d id not fail the examination to the Idaho Commission of Pardons and Parole at a hearing on a self

- initiated progress report. As a result, he asserted, the Commission granted him a tentative release date. However, the Idaho Department of Correction
conditi oned his release on completion of a sex

- offender treatment program, which Matthews argued was in contravention of its duty to release him on parole in the same position as if he was
never arrested for a violation

. The distri ct court dismissed the petitio n after determining it failed to allege any proper grounds for habeas corpus relief. This Court affirmed the dismissal.
Matthews v. Gebhart , Docket No. 39666 (Ct. App. Aug. 1, 2012) (unpublished)

. Matthews filed the petition for writ of habeas corpus at issue in this case in March 2013.
He raised several issues pertaining to the revocation of his parole, which he asserted were presented in his initial habeas petition but were not “ preserved or presented ” by counsel: (1) he was denied the right to cross

- examine and confront any adverse witness at any revocation proceedings; (2) his parole should not have been revoked because he was “ already sanctioned on every violation in the parole agent ’ s Report of Violations ” and t hus was subjected to double jeopardy for the same offenses in violation of the Fifth Amendment; (3) the Commission did not make a decision regarding his “ guilt or innocence . . . within the statutory 20 day period ” ; (4) the
commission failed to record the hearing “ so allegations can be checked against the record ” ; and (5) the June 2010 video of the administration of the polygraph test that he was “ arrested for failing ” showed that “ he passed the polygraph ” and had not committed the alleged parole
violations

. The district court issued an order of dismissal prior to service of the petition on the

r espondents, citing res judicata and noting that Matthews “ either did raise or could have raised these claims in his previous habeas action attacking this parole re vocation. ” Matthews filed a motion to reconsider, contending he had yet to have a full and fair opportunity to litigate the claims because his retained counsel failed to pursue the claims in his initial habeas action . The
district court denied the motion to reconsider. Matthews filed a second motion to reconsider
, pointing to asserted “ newly discovered ” evidence of his “‘ actual innocence ’” of the parole4 violations and contending res judicata did not apply. The district court denied this motion to

recons ider, stating : I t is simply not clear to the court that the petitioner can utilize habeas proceedings to repeatedly challenge a parole revocation that occurred nearly a decade ago and where the Idaho Court of A ppeals has already review his assertions, asse rted again here, that he did not receive due process in relation to the parole revocation.
In regard to Matthews ’ “ actual innocence ” claim, the court surmised that “ such a claim does not appear to be cognizable in a habeas proceeding, particularly in a parole revocation context. ” Matthews now appeals the dismissal of his petition for writ of habeas corpus.
II.
ANALYSIS The writ of habeas corpus is a constitutionally

- mandated mechanism to effect the discharge of an individual from unlawful confinement. See I DAHO C ONST

. art. I, § 6; Idaho Code § 19

- 4201, et seq .; Mahaffey v. State
, 87 Idaho 228, 231, 392 P.2d 279, 280 (1964); Matthews
, 147 Idaho at 227, 207 P.3d at 203

. 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. Matthews , 147 Idaho at 227, 207 P.3d at 203. The writ is an avenue by which relief can be sought where
de tention of an individual is in violation of a fundamental right. Id

. It may be used to challenge the revocation of parol e or the violation of a parolee ’ s constitutional rights during the course of parole revocation proceedings. I.C. §§ 19

- 4205(2)(b), 19

- 4213. Whether to issue a writ of habeas corpus is a matter within the discretion of the trial

court. Johnson v. State , 85 Idaho 123, 127, 376 P.2d 704, 706 (1962); Dopp v. Idaho Comm ’ n of
Pardons & Parole , 139 Idaho 657, 659, 84 P.3d 593, 595 (Ct. App. 2004). When reviewing an exercise of discretion in a habeas corpus proceeding, the appellate court conducts a multi

- tiered inquiry to determine: (1) whether the lower court rightly perceived the issue as o ne of discretion; (2) whether the court acted within the outer boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason. Duvalt v. Sonne n , 137 Idaho 548, 552, 50 P.3d 1043, 1047 (Ct. App. 2002). If a petitioner is not entitled to relief on an application for a writ of habeas corpus, the decision by the petitioned court to dismiss the application without an evidentiary hearing will be uphe ld. Dopp , 139 Idaho at 660, 84 P.3d at 596. When appealing from the denial of a petition5 for writ of habeas corpus, the petitioner has the burden of establishing error. Hoots v. Craven , 146 Idaho 271, 274, 192 P.3d 1095, 1098 (Ct. App. 2008).
As indicat ed above, t he district court initially dismissed Matthews ’ petition upon citing the principles of res judicata and noting that Matthews either did raise, or could have raised, the claims in his previous habeas action. In habeas corpus proceedings, res jud icata applies to issues actually brought and heard b y a petitioner in a prior case. Starkey v. State , 91 Idaho 74 , 76, 415 P.2d 717, 719 (1966). If a petitioner can present some new issue of fact or law upon which the petitioner has not had a hearing , th e petitioner may be entitled to a subs equent writ

. Coffelt v.
State , 92 Idaho 235, 237, 440 P.2d 355, 357 (1968)

. Here, i t is not entirely clear to what extent
the dis trict court dismissed Matthews ’ petition based on the court ’ s belief that claims may no t be raised in a subsequent habeas petition which were, or could have been , raised or on the basis that Matthews had, in fact, previously raised all of the claims and had them heard in the prior case.
Neither Matthews ’ prior habeas petition s , nor any corresponding documents from those proceedings are contained in the record for this appeal. It is clear, however, f rom our decision
affir ming the dismissal of Matthews ’ first habeas petition that two of the issues raised by Matthews in this petition were raised before this Court in his first petition : whether Matthews was denied his right to confront witnesses at his revocation hearing and whether he was denied due process when the hearing officer failed to issue a decision within twenty days. See
Matthe ws , 147 Idaho at 228

- 31, 207 P.3d at 204

- 07. It is also clear from our unpublished decision affirming the dismissal of Matthews ’ October 2011 petition for habeas corpus that he previously raised the issue concerning the videotape of his polygraph examinat ion

. See
Matthews v. Gebhart , Docket No. 39666 (Ct. App. Aug. 1, 2012) (unpublished)

. Thus, we may easily conclude that Matthews is precluded by res judicata from raising these issues again in h is

current petition. T he district court ’ s dismissal of thes e claims is affirmed.
What is not apparent from the record in this case is whether the remaining t wo issues raised by Matthews in this habeas action were actually raised and adjudicated in his previous
habeas action s and are therefore also barred from being raised again. In addition to the previous habeas petition s and their corresponding documents not being in the record before us, in
Matthews , 147 Idaho at 228, 207 P.3d at 204, we explicitly declined to address cer tain (unspecified) issues on appeal either because they were not raised before the magistrate court or because they were not presented on the intermedia te appeal to the district court. This does not6 preclud e the possibility that Matthews previously raised the t wo claims at issue here as they may have been raised before the magistrate, but not the district court. Absent an adequate record, we will not presume that a district court erred. Acheson v. Klauser , 139 Idaho 156, 160, 75 P.3d 210, 214 (Ct. App. 2 003). However, even assuming the remaining t wo claims are not precluded by res judicata and may be addressed by this Court on appeal, the dismissal of these claims was warranted because they do not state a valid basis for habeas relief. We address each of these claims in turn. Although somewhat di fficult to ascertain, Matthews ’ argument regarding double jeopardy appears to be that because he was previously “ sanctioned on every violation in the parole agent ’ s Report of Violations, ” these vi olations could not also form the basis of the revocation of his parole. The Double Jeopardy Clause of the United States Constitution protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense afte r conviction, and multiple punishments for the same offense. State v. Osweiler , 140 Idaho 824,
825

- 26, 103 P.3d 437, 438

- 39 (2004) . Matthews is presumably invoking the latter protection . It is well settled, however, that the revocation of probation and parole does not constitute an additional punishment because revocation of probation or parole involves only the enforcement of conditions already imposed. See State v. Chapman , 111 Idaho 149, 155, 721 P.2d 1248, 1254 (1986); Gibson v. Bennett , 141 Idaho 270, 276, 108 P.3d 417, 423 (Ct. App. 2005) . Accordingly,
dismissal of this claim was not erroneous. Matthews also contends his constitutional rights were violated by the Commission ’ s failure to record the parole revocation proceedings. Even if we assume the proceedings were not actually recorded (a conclusion for which there is no relevant evidence in the record) and that failure amounted to a due process violation, dismissal of the c laim was still appropriate because
it would be harmless error. See Matthews , 147 Idaho at 231, 207 P.3d at 207. The mere failure to provide a transcript of an oral proceeding below does not automatically mandate reversal.
State v. Polson , 92 Idaho 615, 620

- 21, 448 P.2d 229, 234

- 35 (1968). Rather, the lack of a complete transcript must prejudice the defendant ’ s ability to pursue an appeal. Id . at 621, 448 P.2d at 235. Here, Matthews presents no evidence or argument outlining any specific error that7 occ urred at any hearing for which there is allegedly no transcript available. Accordingly,
dismissal of this claim was not erroneous. 1

III.
CONCLUSION
Matthews i s barred by res judicata from again raising issues in his habeas petition as to
whether he was denied the right to confront witnesses at his revocation hearing
, whether he was denied due process when the hearing officer failed to issue a decision within twenty days , and
the effect of the video recording of his polygraph examination . In addition, e ven assuming his remaining claims are not precluded by res judicata and may be properly addressed on appeal,
neither has merit: it is well settled that the revocation of parole does not implic ate double jeopardy protections and that the failure to record a parole hearing does not warrant reversal without a showing of prejudice. The district court ’ s order denying Mathews ’ petition for writ of habeas corpus is affirmed. Judge LANSING and Judge MELANSON CONCUR.

1 Matthews lists two other issues in his a ppellant’s brief:
(1) Did the district court dismiss this case without addressing the merits of this case? Now that the petitioner exhausted his claims per this court and the US District Court of Idaho. 14th Amendment Due Process Rights. (2) Did appellant’s retained counsel fail to pursue claims filed by the petitioner, to the state magistrate and district court of Idaho? 6th Amendment.
Although difficult to discern, the former issue is apparently in regard to whether Matthews has exhausted his state law remedies such that he may pursue a federal habeas action. Whether Matthews has satisfied the requirements to pursue a federal action is not for this Court to determine and we do not address the issue further

. In regard to the latter issue, we interpret it as merely a statement explaining why the issues raised in this second habeas action were (presumably) not raised below. Because we assumed the three issues raised by Matthews in his second habeas, which w ere not addressed by this Court in Matthews v. Jones , 147 Idaho 224, 207 P.3d 200 (Ct. App. 2009) , were properly before this Court and addressed the merits of these issues, we need not determine whether counsel’s alleged failure to raise these issues allow s Matthews to properly raise them on appeal.