1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40019

JASON E. WAIDELICH

,

Petitioner-Appellant

,

v.

TIM WENGLER, Warden, Idaho

Correctional Center; MELODY

ARMFIELD, Disciplinary Hearing Officer;

SHANNON CLUNEY, Deputy Warden

Virtual Prisons,

Respo ndents. )

)

)

)

)

)

)

)

)

)

)

)

)

) 2013 Unpublished Opinion No. 711

Filed: October 16, 2013

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THIS IS AN UNPUBLISHED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. Hurlb utt , District Judge.

Judgment denying petition for writ of habeas corpus, affirmed

.

Jason E. Waidelich, Boise, pro se appellant.

James R. Stoll of Naylor & Hales, P.C., Boise, for respondents Tim Wengler and

Melody Armfield.

Hon. Lawrence G. Wasden, Attorney General; Colleen D. Zahn , Deputy Attorney

General, Boise, for respondent Shannon Cluney.

________________________________________________

GUTIERREZ, Chief Judge

J ason E. Waidelich appeals from the district court ’s judgment denying Waidelich’s

petition for a writ of habeas corpus i n favor of respondents Timothy Wengler, Melody Armfield,

and Shannon Cluney (collective ly , the respondents)

. For the reasons that follow, we affirm.

I.

FACTS AND PROCEDURE

At relevant times, Waidelich was a prisoner under the jurisdiction of the Idaho

Department of Correction and housed at the Idaho Correctional Center beginning in 2010. Af ter

entering the Correctional Center, Waid elich joined the therapeutic community. Waidelich was2 informed that if he successfully graduated from the therapeutic community, a tentative par ole

date would be established for mid

- January 2011. However, after Waidelich was found to have

violated a prison rule by providing an adulterated urine sample , the tentative parole date was

cancelled, and Waidelich fil ed a petition for a writ of habeas corpus.

The record indicates that u pon entering the Correction al Center

, Waidelich signed off on

having received the Inmate Handbook and agreeing to read and abide by the rules listed in the

Inmate Handbook. One of the rules in the handbook provides that members of the therapeutic

community are subject to random drug testing. Another rule in the handbook lists a series of

disciplinary offenses. One offense is “ Refusal to Participate in Drug Test in a Secure Facility,”

and it has the following description : “ Refusing to provide or adulterating a urine sample or

refusing to cooperate with any drug/alcohol testing procedure in a medium or close custody

facility.” Although not published in the Inmate Handbook, an Idaho Department of Correction

policy addresses at least one indicator of an adulterated urine sample and provides that “ a

creatinine level less than 20 mg/dl is very unlikely in a normal hydrated individual with normal

kidney function and would indicate some degree of dilution.”

As a member of the therapeutic community, Waidelich was selected for a ra ndom drug

test in December 2010. Waidelich provided a urine sample, and t he urine sample was sent to an

independent lab for testing. Days later, but before the drug test results were returned, Waidelich

was informed that he had graduated from the therapeutic community and his parole was

tentatively scheduled for mid

- January 2011. At the end of December, the drug test results were

returned and indicated that Waidelich had a creatinine level of 10.5 mg/dl , a level indicative of

an adulterated urine sample according to the Department of Correction policy. Waidelich was

served with a disciplinary offense report for providing an adulterated urine sample, and a hearing

was held a few days later

, but before hi s tentative parole date

. At the hearing, Waidelich asserted

he did not violate the rule and contended he had consumed large amounts of water because of his

exercise routine within the therapeutic community. Hearing O fficer Armfield determined that

Waidelich violated the rule and imposed penalties. Waidelich asserts that during the hearing,

Hearing Officer Armfield stated that if a second urine analysis provided by Waidelich was clean,

she would dismiss the disciplinary offense.

Waidelich appealed the hearing officer’s determination and penalties to the Correctional

Center Warden

, Wengler. Warden Wengler affirmed

, and Waidelich then appealed to the3 Department of Correction Deputy Warden of Virtual Prisons, Cluney. Deputy Warden Cluney

also affirmed

. In the time between the disciplinary hearing and Deputy Warden Cluney’s

affirmance

, the Idaho Parole Commission informed Waidelich that his tentative parole date had

been cancelled due to the disciplinary finding

, which had been reported to the Parole

Commission

. Waidelich asserts his next parole hearing was pushed back two years

. Waidelich

also alleges that days after his tentative parole date, he learned his second urine sample had come

back clean, but Hearing Officer Armfield refused to dism iss the disciplinary offense

.

After his tentative parole date was cancelled, Waidelich filed a pro se petition for a writ

of habeas corpus in the district court. In the petition, Waidelich argued his due process and equal

protection rights were violated because: (1) he lacked notice of the rule he was found to have

violated; (2) he was treated differently than another similarly situated prisoner ; (3) he was

subjected to sanctions as a result of the rule violation; and (4) he lost his parole date as a re sult of

the rule violation. Waidelich also moved the court to appoint counsel for him. In an interim

order, the district court, on its own accord, dismissed Waidelich’s cla i ms that Waidelich’s due

process and equal protection rights were violated by the imposition of sanctions for the rule

violation and the resulting loss of his parole date . However, the district court ordered the

respondents to provide additional briefing regarding notice of the rule and the alleged disparity in

treatment. The district court, also in the interim order, declined to appoint counsel for

Waidelich.

Following the interim order, the respondents moved for summary judgment. Warden

Wengler and Hearing Officer Armfield argued that Waidelich had sufficient notice of the rule,

that the Idaho Parole Commission could consider a myriad of considerations in deciding to

cancel a tentative parole date, and that Waidelich failed to prove the second inmate was similarly

situated or treated differently than Waidelich. Deputy Warde n Cluney argued that there was no

constitutional right to parole, that Waidelich had sufficient notice of the urine

- sample rule, and

that Waidelich failed to show he was a member of a protected, equal

- protection class. Waidelich

opposed the motion and rai sed the issue of the constitutionality of Idaho Code § 19

- 4205,

although he did not amend his petition to include this issue. The respondents replied in support

of their position, and following a hearing, the district court granted the respondents’ motion for

summary judgment. The district court then entered a judgment denying the petition for a writ of

habeas corpus. Waidelich appeals.4 II.

STANDARD OF REVIEW

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, § 5; I.C.

§§ 19

- 4201 to 19

- 4226; Mahaffey v. State , 87 Idaho 228, 231, 392 P.2d 279, 280 (1964); Gawron

v. Roberts , 113 Idaho 330, 333, 743 P.2d 983, 986 (Ct. App. 1987). The essence of ha beas

corpus is an attack upon the legality of a person’s detention for the purpose of securing release

where custody is illegal and is an avenue by which relief can be sought where detention of an

individual is in violation of a fundamental right. In re R obinson , 107 Idaho 1055, 1057, 695 P.2d

440, 442 (Ct. App. 1985). An in

- state prisoner may file a petition for a writ of habeas corpus to

request that a court inquire into state or federal constitutional questions concerning conditions of

confinement, the revocation of parole, miscalculation of a sentence, loss of good time credits, or

detainers lodged against the prisoner. I.C. § 19

- 4203(2)(a)

- (e). Habeas corpus may not be used

as a substitute for, or in addition to, a direct appeal of a criminal convic tion or proceeding under

Idaho Criminal Rule 35 or the Uniform Post

- Conviction Procedures Act. I.C. § 19

- 4203(4).

The decision to issue a writ of habeas corpus is a matter within the discretion of the court.

Johnson v. State , 85 Idaho 123, 127, 376 P.2d 704, 706 (1962); Brennan v. State , 122 Idaho 911,

914, 841 P.2d 441, 444 (Ct. App. 1992). When we review an exercise of discretion in a habeas

corpus proceeding, we conduct a three

- tiered inquiry to determine whether the lower court

rightly perceived the issue as one of discretion, acted within the boundaries of such discretion,

and reached its decision by an exercise of reason. Brennan , 122 Idaho at 914, 841 P.2d at 444;

Sivak v. Ada C nty

. , 115 Idaho 762, 763, 769 P.2d 1134, 1135 (Ct. App. 1989). If a p etitioner is

not entitled to relief on a petition for a writ of habeas corpus, the decision by the petitioned court

to dismiss the petition without an evidentiary hearing will be upheld. Brennan , 122 Idaho at 917,

841 P.2d at 447. When a court considers matters outside the pleadings on an I daho Rule of Civil

Procedure 12(b)(6) motion to dismiss, such motion must be treated as a motion for summary

judgment. Hellickson v. Jenkins , 118 Idaho 273, 276, 796 P.2d 150, 153 (Ct. App. 1990).

Habeas corpus proceedings are civil in nature

, and generally, the rules of civil procedure

apply. I.C. § 19

- 4208 ; Quinlan v. Idaho Comm’n for Pardons & Parole , 138 Idaho 726, 729, 69

P.3d 146, 149 (2003); Lopez v. State , 128 Idaho 826, 827, 919 P.2d 355, 356 (Ct. App. 1996).

Therefore, on appeal from a summary judgment in such an action, we adhere to the standard of5 review applicable to summary judgments generally. Lopez , 128 Idaho at 827, 919 P.2d at 356. We

first note that summary judgment under Idaho Rule of Civil Procedure 56(c) is proper only when

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter

of law. On appeal, we exercise free review in determining whether a genuine issue of material

fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v.

Conchemco

, Inc. , 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When assessing a

motion for summary judgment, all controverted facts are to be liberally construed in favor of the

nonmoving party. Furthermore, the trial court must draw all reasonable inferences in favor of

the party resisting the motion. G & M Farms v. Funk Irrigation Co. , 119 Idaho 514, 517, 808

P.2d 851, 854 (1991); Sanders v. Kuna Joint Sch. Dist. , 125 I daho 872, 874, 876 P.2d 154, 156

(Ct. App. 1994).

The party moving for summary judgment initially carries the burden to establish that

there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of

law. Eliopulos v. Knox , 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burden

may be met by establishing the absence of evidence on an element that the nonmoving party will

be required to prove at trial. Dunnick v. Elder , 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App.

1994). Such an absence of evidence may be established either by an affirmative showing with

the moving party’s own evidence or by a review of all the nonmoving party’s evidence and the

contention that such proof of an element is lacking. Heath v. Honker’s Mini

- Mart, Inc. , 134

Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been

established, the burden then shifts to the party opposing the motion to show, via further

depositions, discovery responses or aff idavits, that there is indeed a genuine issue for trial or to

offer a valid justification for the failure to do so under Idaho Rule of Civil Procedure 56(f).

Sanders , 125 Idaho at 874, 876 P.2d at 156.

The United States Supreme Court, in interpreting Fe deral Rule of Civil Procedure 56(c),

which is identical in all relevant aspects to Idaho Rule of Civil Procedure 56(c), stated:

In our view, the plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who

fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof

at trial. In such a situation, there can be “ no genuine issue as to any material

fact,” since a complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial. The6 moving party is “ entitled to judgment as a matter of law” because the nonmoving

par ty has failed to make a sufficient showing on an essential element of her case

with respect to which she has the burden of proof . . . .

Celotex Corp. v. Catrett , 477 U.S. 317, 322

- 23 (1986) (citations omitted). The language and

reasoning of Celotex has been adopted in Idaho. Dunnick , 126 Idaho at 312, 882 P.2d at 479.

II I

.

ANALYSIS

On appeal, Waidelich contends : (1) Idaho Code §§ 19

- 4205 and 19

- 4209 are facially

unconstitutional; (2) the district court erred by granting summary judgment because W aidelich

was deprived of due process of the law when he was found to have violated the urine

- sample

rule ; (3) the district court erred by granting summary judgment because Waidelich was denied

equal protection of the law when he was found to have violated the urine

- sample rule ; and (4) the

district court erred by declining to appoint counsel for Waidelich

. We address these in turn.

A. Constitutionality of Idaho Code §§ 19

- 4205 and 19

- 4209

Waidelich , for the first time on appeal, argues Idaho Code §§ 19

- 4205 and 19

- 4209 are

unconstitutional on their face. Waidelich’s petition before the district court did not raise this

issue

. Generally, issues not raised below may not be considered for the first time on appeal.

Sanchez v. Arave , 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Thus, we decline to

consider this issue

.

B. Due Process of Law

Waidelich next argues the district court erred by granting summary judgment on

Waidelich’s claim that his due process rights were violated. Waidelich contends he was

deprived of due process of the law because he lacked sufficient notice of the rule he was

disciplined under and because the rule violation led to the cancellation of his upcoming parole

date. T he Due Process Clause of the Fourteenth Amendment has been interpreted by the United

States Supreme Court to provide two distinct guarantees: substantive due process and procedural

due process. Nelson v. Hayden

, 138 Idaho 619

, 622

, 67 P.3d 98, 101 (Ct. App. 2003). The

Idaho Constitution

, in article I

, section 13

, provides a similar protection, and we analyze the

rights afforded under each concurrently. See Idaho Dairymen’s Ass’n v. Gooding Cnty.

, 148

Idaho 653

, 661

, 227 P.3d 907, 915 (2010 ); s ee also Schevers v. State , 129 Idaho 573, 5 77

- 78,

930 P.2d 603, 6 07

- 08 (1996) (applying the standard used under the Fourteenth Amendment to7 art icle I, section 13 of the Idaho Constitution for determining whether a prison disciplinary

action infringes a liberty interest)

. The notice arg ument is properly characterized as a challenge

to substantive due process, Nelson

, 138 Idaho at 622

, 67 P.3d at 101

, and the loss of a tentative

parole date is properly characterized as a challenge to procedural due process

, c f. State v.

Scraggins , 1 53 Idaho 867, 870, 292 P.3d 258, 261 (2012) (citing Morrissey v. Brewer

, 408 U.S.

471, 481

- 85 (1972)) (revocation of parole invokes procedural due process protections )

. Below,

the district court granted summary judgment because it determined Waidelich had sufficient

notice of the rule and, ergo, the respondents were entitled to judgment as a matter of law.

1. Substantive d ue p rocess

Waidelich makes two arguments of substantive due process , one of notice and one of

specificity. Wai delich initially asserts he lacked proper notice of the rule he was found to have

violated

. Waidelich makes the second argument in the form of a question: “ How many glasses

of water may I drink over what period of time before I am guilty of violating this rule ? ”

Substantive due process generally protects a person from state action that is arbitrary and

capricious. Nelson

, 138 Idaho at 622

, 67 P.3d at 101. Under the void

- for

- vagueness doctrine, a

penal statute must “ define the criminal offense with sufficient definiteness that ordinary people

can understand what conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement. ” Id. (quoting Kolender v. Lawson

, 46 1 U.S. 352, 357 (1983)). As

this C ourt stated in Nelson

, “ A lthough all aspects of the vagueness doctrine concerning criminal

statutes may not be applicable to prison rules, it is established that, even with regard to prison

regulations, due process requires fair notice that the conduct is prohibited before a sanction can

be imposed. ” Id. (citing Newell v. Sauser

, 79 F.3d 115, 117

- 18 (9th Cir. 1996); Rios v. Lane

,

812 F.2d 1032, 1038

- 39 (7th Cir. 1987); Adams v. Gunnell

, 729 F.2d 362, 368

- 70 (5th Cir.

1984) )

.

Waidelich argues that t he policy used to establish his guilt is not available to the public or

inmates

, nor was it ever provided to him during the course of the proceedings. Deputy Warden

Cluney responds that Waidelich was provided fair notice of the conduct that was prohibited, and

that “ [t]he concept of fair notice does not require that prison officials spell out every

circumstance that could constitute an adulterated sample or refusing to cooperate.” Similarly,

Warden Wengler and Hearing Officer Armfield argue that the rules available to Wai delich

provided Waidelich fair notice of the general conduct that was prohibited and that a person of8 ordinary intelligence could foresee that submitting a watered

- down urine sample violates the rule

against providing an adulterated urine sample.

The first issue is whether Waidelich had sufficient notice that providing an adulterated

urine sample was a violation of the rule contained in the Inmate Handbook

. Here, the record

before us indicates that Waidelich receive d a copy of the Inmate Handbook. P rior to the incident

at issue, Waidelich signed a handbook receipt that required Waidelich to read the Inmate

Handbook

. A rule in the handbook provides that random drug testing may occur upon those

prisoner s in the therapeutic community, of which Waidelic h was a part. In addition, the Inmate

Handbook list s a s a disciplinary offense : “ R efusing to provide or adulterating a urine sample

, or

refusing to cooperate with any drug/alcohol testing procedure in a medium or close custody

facility.” What Waidelich was not made aware of prior to the drug tes t was how the Correctional

Center determined if a sample had indicators of adulteration . I t is enough in this case that

Waidelich received a copy of the I nmate H andbook that enumerated the drug testing policy and

the consequences of failing to provide or providing an adulterated urine sample. “ A regulation

provides adequate warning and is sufficiently explicit if reasonable persons can understand what

conduct is prohibited.” Nelson

, 138 Idaho at 623

, 67 P.3d at 102. We are persuaded that

Waidelich was provided with fair notice that if a prisoner provided an adulterated urine sample

,

by whatever means

, a violation would result

.

Moreover, we agree with the respondents that fair notice does not require that every

possible way of violating a rule be enumerated. In Nelson

, the prisoner ate breakfast with

prisoners in his work assignment before the work assignment released the prisoner to go to the

medical building. After visiting the medical building, instead of returning to his scheduled work

assignment

, the prisoner then ate a second breakfast with prisoners of his residential unit. The

prisoner was charged with violating a written prison rule that made the “ failure to comply with

designated or authorized boundaries and schedules of a living unit, work assignment or security

facility” a violation. Id . at 621, 67 P.3d at 100. Although the prisoner did not argue he lacked

notice of the rule, he did argue that the rule was “ insufficiently specific to notify him” that the

conduct of eating a second breakfast was prohibited. Id

. at 623, 67 P.3d at 102. We held that the

rule provide d fair notice because it provided that the prisoner had to comply with designated

schedules

. Id. We concluded that the prisoner was in violation of his designated work schedule

when he ate the second breakfast and , thus, was in violation of the rule

. Id

. Similarly i n9 Waidelich’s case

, the violation is defined with enough specificity

, and that violation occurs when

the prisoner fa ils to provide a sample or provides an adulterated sample. I t is of no concern that

the rule here does not enumerate possible violations of the rule, as much as the rule in Nelson

was not required to enumerate that eating a second breakfast was a violation.

Thus, Waidelich was provided with the required fair notice of the rule that he was

charged with violating. T he rule itself provides adequate warning and is sufficiently explicit.

Therefore, Waidelich has not shown a substantive due process vio lation . Waidelich has failed to

raise a genuine issue of material fact, and the respondents a re entitled to judgment as a matter of

law

.

2. Procedural d ue p rocess

Waidelich also asserts the rule violation impacts his parole date. This amounts to an

assertion of a violation of procedural due process, as guaranteed under bot h the Fourteenth

Amendment and a rticle I

, s ection 13 of the Idaho Constitution. Cf. Scraggins , 153 Idaho at 870,

292 P.3d at 261 (citing Morrissey , 408 U.S. at 481

- 85) (revocation of parole invokes procedural

due process protections). Generally, to determine whether an individual ’ s due process rights

under the Fourteenth Amendment have been violated, a court must engage in a two

- step analysis.

The court must first decide whether the individual ’ s threatened interest is a liberty or property

interest under the Fourteenth Amendment. Schevers

, 129 Idaho at 575

, 930 P.2d at 605 ; Smith v.

Meridian Joint Sch

. Dist. No. 2

, 128 Idaho 714, 722, 918 P.2d 583, 591 (1996)). It is only after a

liberty interest is found that the court needs to determine the extent of the procedural due process

protections. Schevers

, 129 Idaho at 575

, 930 P.2d at 605

.

In this case, Idaho case law answers the first step of the two

- step analysis in the negative.

Idaho case law recognizes no constitutionally protected liberty interest in receiving parole.

Hoots v. Craven

, 146 Idaho 271, 276

, 192 P.3d 1095, 1100 (Ct. App. 2008) ; see also Greenholtz

v. I nmates of Neb. Penal and Corr. Complex

, 442 U.S. 1 , 7 (1979) (no constitutionally protected

right of a convicted person to be released on parole before the expiration of a valid sentence)

.

Idaho statutes governing parole only provide for the possibility of parole, Izatt v. State

, 104

Idaho 597, 600, 661 P.2d 763, 766 (1983)

, and the Parole Commission has broad discretion in

making its parole decisions, Ybarra v. Dermitt

, 104 Idaho 150, 151, 657 P.2d 14, 15 (1983). As

part of its decisionmaking, t he Idaho Parole Commission consider s a myriad of considerations.

Schevers

, 129 Idaho at 577, 930 P.2d at 607. “ A ny host of administrative or disciplinary10 decisions made by prison authorities might somehow affect the timing of a prisoner’s release, but

such effects have never been held to confer a constitutionally protected liberty interest upon a

prisoner

. . . . ” Id. (quoting Luken v. Scott

, 71 F.3d 192, 19 3 (5th Cir. 1995)). Because

Waidelich has failed to establish a liberty interest in the tentative receipt of parole, he has not

established a procedural due process violation

. Waidelich failed to establish a genuine issue of

material fact, and the respondents a re entitled to judgment as a matter of law.

C. Equal Protection

Waidelich next argues the district court erred by granting summary judgment because

Waidelich was denied equal protection of the law, in violation of the Fourteenth Amendment and

the Idaho Constitution. We analyze the alleged violations concurrently. See , e.g.

, Northcutt v.

Sun Valley Co. , 117 Idaho 351, 357, 787 P.2d 1159 , 1165 (1990) (analyzing the federal and state

guarantees concurrently); Leliefeld v. Johnson , 104 Idaho 357, 372

- 75, 659 P.2d 111 , 126

- 29

(1983) (same); Standlee v. State , 96 Idaho 849, 853, 538 P.2d 778 , 7 82 (1975) (same).

The Equal Protection Clause of the Fourteenth Amendment is designed to assure that

those persons similarly situated with respect to governmental action are treated alike

. City of

Cleburne v. Cleburne Living Ctr.

, 473 U.S. 432, 439 (1985) . The same protection is afforded

under the Idaho Constitution. State v. Missamore

, 119 Idaho 27, 33, 803 P.2d 528, 534 (1990 )

.

Selective or discriminatory enforcement or application of a statute may amount to an equal

protection violation under the United States or Idaho Constitution if the challenger shows a

deliberate plan of discrimination based on some unjustifiable classification. Anderson v.

Spalding

, 137 Idaho 509, 514, 50 P.3d 1004, 1009 (2002); Henson v. Dep ’ t of Law Enforcement

,

107 Idaho 19, 23, 684 P.2d 996, 1000 (1984); State v. Hayes

, 108 Idaho 556, 560, 700 P.2d 959,

963 (Ct. App. 1985)

. A “ class of one ” may state an equal protection claim if he or she was

intentionally treated differently from others similarly situated and the difference in treatment

fails to satisfy the requisite level of scrutiny

. Vill age of Willowbrook v. Olech

, 528 U.S. 562, 564

(2000) (per curiam) ; Anderson

, 137 Idaho at 514, 50 P.3d at 1009. Different levels of scrutiny

apply to challenges under the Fourteenth Amendment ’ s Equal Protection Clause. Strict scrutiny

applies to fundamental rights and suspect classes, intermediate scrutiny 1 applies to classifications

1 Idaho utilizes means

- focus scrutiny instead of intermediate scrutiny. Means

- focus

scrutiny, unlike the federal intermediate scrutiny, is employed “ where the discriminatory

character of a challenged statutory classification is apparent on its face and wher e there is also a11 involving gender and illegitimacy, and rational basis scrutiny applies to all other c hallenges.

State v. Mowrey

, 134 Idaho 751, 754

- 55, 9 P.3d 1217, 1220

- 21 (2000). Under rational basis

review, the challenging party has the burden to prove that the state ’ s goal is not legitimate, the

challenged law is not rationally related to the legitimate government purpose, and there is not

any conceivable state of facts that will support it. Id. at 755, 9 P.3d at 1221.

Waidelich asserts that a second prisoner, also in the same therapeutic community

program as Waidelich

, produced a urine test l ow in creati ni ne. H e asserts that a disciplinary

offense report was lodged against the second prisoner for the same violation as Waidelich, yet

the second prisoner was released on parole. Deputy Warden C luney argues there is no equal

protection violation because there is no liberty interest in parole. Alternatively, Deputy Warden

Cluney argues Waidelich was not similar ly situated as the other prisoner

. Warden Wengler and

Hearing Officer Armfield also argue Waidelich is not similarly situated. T he respondents do not

dispute that a second prisoner in the same therapeutic community was issued a disciplinary

offense report with the same violation alleged as Waidelich

, but distinguish that the Parole

Commission was not notified of the disciplinary offense report

. T he respondents submit that the

second prisoner was issued the disciplinary offense report less than twenty

- four hours prior to his

parole. Furthermore, as a matter of policy

, the respondents submit that they hold hearing s on the

alleged violation within seven days of serving notice on the prisoner

, with no less than

twenty

- four hours’ notice

. That is, the respondents assert the other prisoner was set for parole

before the required hearing could, at its earliest, be held. Waidelich did not dispute these

assertions below, nor does he dispute them on appeal. The district court granted summary

judgment to the respondents because the court determined evidence supporting the equal

protection claim was lacking

.

Initially

, we address Deputy Warden Cluney’ s assertion that no equal protection violation

occurred because there is no liberty interest. While Deputy Warden Cluney’s assertion is correct

in that due process requires a liberty interest, equal protection does not. State v. Reed

, 107 Idaho

162

, 167

- 68

, 686 P.2d 842

, 847

- 48 (Ct. App. 1984) ( “ Equal protection focuses not upon the

patent indication of a lack of relationship between the classification and the d eclared purpose of

the statute.” Coghlan v. Beta Theta Pi Fraternity , 133 Idaho 388 , 395, 987 P.2d 300 , 307 (1999)

(quoting Jones v. State Bd. of Med. , 97 Id aho 859, 871, 555 P.2d 399, 411 (1976)).12 broad impact of a statute on life, liberty or property but upon any classifica tion within the statute

which allocates this impact differently among the categories of persons affected.”) ; People v.

McKee

, 223 P.3d 566, 586 (Cal. 2010) (“ [ D ] ue process affords individuals a baseline of

substantive and procedural rights, whereas equal protection safeguards against the arbitrary

denial of benefits to a certain defined class of individuals, even when the due process clause does

not require that such benefits be offered. ”).

Waidelich argues that he was treated differently than another, similarly situated prisoner

who was given a disciplinary offense report

. In essence, Waidelich has raised a “ class of one”

argument. W aidelich has not alleged discrimination based on a suspect classification or age or

gender ; thus, rational basis review applies. Mowrey

, 134 Idaho at 755, 9 P.3d at 1221

. To lodge

a successful challenge under the Village of Wi ll owbrook standard, Waidelich must show that he

was intentionally treated differently from others similarly situated and there is no rational basis

for the difference in treatment. Village of Willowbrook , 528 U.S. at 564. See also Viking Const.,

Inc. v. Hayden Lake Irr igation Dist.

, 149 Idaho 187

, 198

- 199

, 233 P.3d 118, 129

- 30 (2010)

,

abrogated on other grounds by Verska v. Saint Alphonsus Regional Medical Center , 151 Idaho

889, 265 P.3d 502 (2011)

. We address the third prong, as it is dispositive of this issue. “ ‘ Equal

protection ’ . . . emphasizes disparity in treatment by a State between classes of individuals whose

situations are arguably indistinguishable .” Viking Const.

, 149 Idaho at 199, 233 P.3d at 130

(emphasis added) (quoting Ross v. Moffitt

, 417 U.S. 600, 609 (1974) )

. In Waidelich’s case, the

uncontroverted facts concerning the second prisoner’s situation distinguish the second prisoner ’s

situation from Waidelich ’s situation

. The second prisoner received a disciplinary offen se report,

but he was paroled before the Correctional Center could hold a disciplinary hearing

. T he lodging

of a disciplinary offense report does not equal the finding of a violation. A hearing officer

determined that Waidelich violated the rule; however, a hearing officer did not find the second

prisoner violated the rule because the Correctional Center could not hold a hearing before the

second prisoner was paroled. “ Under the equal protec tion clause, we do not inquire whether

persons are similarly situated for all purposes, but whether they are similarly situated for

p urposes of the law challenged

. ” People v. Hofsheier , 129 P.3d 29, 36 (Cal. 2006) (internal

quotation marks omitted). Hearing Officer Armfield states, “ To my knowledge, ICC does not

have the authority to hold an inmate from parole in order to conduct a DO R hearing. ” Waidelich13 offers no legal challenge to this statement. Thus, Waidelich and the second prisoner were

differently situated.

Waidelich further argues , in part, that the application of the disciplinary offense system

results in an unfair situation: that is, the disciplinary offense system allowed for the release of

one prisoner on parole while Waidelich was not. It is well established that an equal protection

violation can be established “ when a plaintiff shows by his or her well

- pleaded facts that she was

treated differently from ‘ others similar ly situated

. . . based on impermissible considerations such

as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or

bad faith intent to injur e a person.’” Clark v. Boscher , 514 F.3d 107, 114 (1st Cir. 2008) (q uoting

Aponte

- To rres v. Univ. of P

. R

. , 445 F.3d 50, 57 (1st Cir. 2006)). Here, there are no

impermissible considerations asserted against the respondents. As a consequence, Waidelich has

not prevailed on his equal protection claim. Waidelich failed to r aise a genuine issue of material

fact, and the respondents are entitled to judgment as a matter of law.

D. Denial of Motion to Appoint Counsel

Finally, Waidelich argues the district court erred by denying Waidelich’s request for

appointment of counsel. Specifically, Waidelich argues the district court applied the incorrect

legal standards

. Below, Waidelich argued counsel should have been appointed because : (1) this

was a matter of public interest; (2) the policy Waidelich challenged was unavailable to him;

(3) there was no notice of the rule that Waidelich violated ; and (4) the release of the second

prisoner demonstrated an inequity.

I n Ida ho, there is no mandatory right to counsel associated with petitions for a writ of

habeas corpus. Quinlan

, 138 Idaho at 730, 69 P.3d at 150

. Although Waidelich argues that the

district court should have applied the factors for app ointing counsel announced in Swader v.

State

, 143 Idaho 651, 653, 152 P.2d 12 , 14 (2007) , the factors in Swader apply to post

- conviction

relief, under the Uniform Post

- Conviction Procedures Act, Idaho Code §§ 19

- 4901 to 19

- 4911.

To the extent that cases previous to Quinlan , such as Banks v. State , 128 Idaho 886, 889, 920

P.2d 905, 908 (1996), indicated that a court had discretion to appoint counsel in a habeas corpus

action pursuant to provisions of the Uniform Post

- Conviction Procedures Act contained in Idaho

Code § 19

- 4904, they are effectively overruled by Quinlan , which held that the U n iform

Post

- Conviction Procedure s Act is not applicable. Quinlan , 138 Idaho at 730, 69 P.3d at 150

(“ Habeas corpus is governed by its own statutory framework set forth in I.C. §§ 19

- 4201

- 4236,14 in which there is no requirement for mandatory appointment of counsel in habeas proceedings. ”).

There is some suggestion in Wilbanks v. State , 91 Idaho 608, 611, 428 P.2d 527, 530 (1967) , and

Freeman v. State

, 87 Idaho 170, 180, 392 P.2d 542, 548 (1964) , that in special circumstances the

Due Process Clause could require appointment of counsel. See also Knaubert v. Goldsmith , 791

F.2d 722, 728 (9th Cir. 1986) (questioning whether denial of the federal habeas petitioner ’ s

motion for appointment of counsel amounted to a denial of due process). However, n o such

extraordinary circumstances are prese nt here. The district court did not err in denying

Waidelich’s request for appointed counsel.

I V

.

CONCLUSION

We need not address the issue of the constitutionality of Idaho Code §§ 19

- 4205 and

19

- 4209 because Waidelich did not raise this argument in his petition before the district court

and, generally, we do not address issues on appeal that were not raised below

. As to the alleged

due process and equal protection violations, w e are persuaded that there were no genuine issues

of material fact

, and we co nclude the district court properly granted summary judgment.

Waidelich was sufficiently notified that providing an adulterated urine sample would result in a

violation of the prison rules, and therefore, there was no substantive due process violation.

Wa idelich has no liberty interest in a tentative parole date, and therefore, there was no procedural

due process violation. Further, Waidelich’s equal protection argument does not stand because

Waidelich was not similarly situated and because Waidelich has not shown that any

impermissible considerations were used in cancelling his tentative parole date. Lastly, th e

district court did not err by declining to appoint counsel for Waidelich because there is no

statutory basis for the appointment of counsel in h abeas proceedings and our review of the record

does not indicate that a special circumstance exists that would necessitate the appointment of

counsel under the Due Process Clause

. Therefore, Waidelich is not entitled to habeas relief.

Accordingly

, we affirm the judgment of the district court denying Waidelich’s petition for a writ

of habeas corpus

.

Judge GRATTON and Judge MELANSON CONCUR.