1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37785

KEVIN BROWN , Petitioner-Appellant ,

v.

IDAHO PAROLE COMMISSION , Respondent

. ) ) ) ) ) ) ) ) ) ) 2011 Unpublished O pinion No. 417

Filed: March 28, 2011
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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Hurlbutt , District Judge.

Order s dismissing petition for writ of habeas corpus
, denying appointment of counsel, and denying motion to reconsider denial of counsel
, affirmed

. Kevin Brown, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; William M. Loomis, Deputy Attorney General, Boise, for respondent.

________________________________________________ LANSING, Judge Kevin Brown, an inmate, appeals pro se from the district court’s orders dismissing his petition for a writ of habeas corpus, denying his motion for appointment of counsel, and denying
his motion to reconsider denia l of appointment of counsel.
I.
FACTS AND PROCEDURAL BACKGROUND On February 19, 2010, Brown filed a pro se petition for a writ of habeas corpus. The petition alleged that Brown was entitled to credit against his sentence for 459 days that he served

on pa role prior to revocation of his parole. The petition asserted that a provision of Idaho Code § 20

- 228 calling for forfeiture of time spent on parole unless the Commission of Pardons and Parole, in its discretion, grants credit against the sentence, violat es constitutional provisions relating to double jeopardy, equal protection, and due process. Brown also moved for appointment of counsel. The district court denied Brown’s motion for appointment of counsel2 on March 1, 2010. On March 23, 2010, the Commis sion filed a motion to dismiss Brown’s petition. Brown was given thirty days to respond to the Commission’s motion to dismiss, but he filed no response . On May 10, 2010, the district court entered an order dismissing Brown’s habeas corpus petition, concl uding that all of Brown’s claims failed as a matter of law. After receiving from the district court a copy of the court’s register of actions for this

case on May, 7, 2010, 1 Brown filed a motion and affidavit for reconsideration of appointment of
counsel on May 13, 2010. Brown’s May 13, 2010, motion for reconsideration was identical to his original motion for appointment of counsel except for the addition of one line generally indicating that he was having problems receiving his legal mail and his attach ment of an Idaho Department of Correction ( IDOC ) concern form and a May 7, 2010, mail log. On the IDOC concern form, Brown indicated he had not received any legal mail since January 25, 2010. Brown’s mail log lists two items of received mail, one from th e district court on January 25, 2010, and one from the Parole Commission on April 1, 2010. After ruling that Brown had not shown any extraordinary circumstances necessitating the appointment of counsel, the district
court denied Brown’s motion for reconsi deration on May 24, 2010. On appeal, Brown argues that several constitutional rights were violated when the Commission refused to grant him credit for time served on parole. He also contends that the district court erred by denying his motion for appoin tment of counsel and by denying his motion for reconsideration of his request for counsel because of the particular complexities of his case
and because of prison officials’ interference with Brown’s legal mail

. II.
ANALYSIS
A

. Constitutional Claims in Habeas Corpus Petition A writ of habeas corpus is a proper mechanism for challenging an unlawful confinement
and is a constitutionally

- provided remedy

. See I DAHO C ONST . art. I , § 5 ; Idaho Code § 19

- 4201,
et seq .; Mahaffey v. State , 87 Idaho 228, 231, 392 P.2d 279, 280 (1964); Dopp v. Idaho Comm’n of Pardons & Parole , 144 Idaho 402, 404, 162 P.3d 781, 783 (Ct. App. 2007); Drennon v.
Fisher , 141 Idaho 942, 944, 120 P.3d 1146, 1148 (Ct. App. 2005) . As habeas corpus proceedings are civil in nature, the Idaho Rules of Civil Procedure generally apply. Idaho Code

1 The register of a ctions dated May 7, 2010
, may have been sent to Brown as a result of an April 26, 2010
, letter he sent to the court asking the status of his case

.3 § 19

- 4208; Quinlan v. Idaho Comm’n for Pardons & Parole
, 138 Idaho 726, 729, 69 P.3d 146,
149 (2003) ; Hoots v. Craven , 146 Idaho 271, 275, 192 P.3d 1095, 1099 (Ct. App. 2008); Lopez v.
State , 128 Idaho 826, 827, 919 P.2d 355, 356 (Ct. App. 1996). An appellate court will affirm a trial court’s grant of an I.R.C.P. 12(b)(6) motion to dismiss a habeas corpus petition where the
record demonstrates that no genuine issues of material fact exist and the case w as decided as a
matter of law. Coghlan v. Beta Theta Pi Fraternity , 133 Idaho 388, 398, 987 P.2d 300, 310 (1999) ; Gibson v. Bennett , 141 Idaho 270, 273, 10 8 P.3d 417, 420 (Ct. App. 2005) . When reviewing a dismissal pursuant to Rule 12(b)(6), the nonmovin g party is entitled to have all inferences from the record and pleadings view ed in his or her favor

. Gibson , 141 Idaho at 273,
108 P.3d at 420 . The issue is not whether the petitioner will ultimately prevail, but whether the party is entitled to offer ev idence to support the claims. Orthman v. Idaho Power Co. , 126 Idaho
960 , 962, 895 P.2d 561, 563 (1995). Brown’s habeas corpus claims turn upon the application in his case of the provision in I.C. § 20

- 228 that following revocation of parole, the prisone r “must serve out the sentence, and the time during which such prisoner was out on parole shall not be deemed a part thereof; unless the Commission, in its discretion, shall determine otherwise . . . .” We consider first Brown’s
contention that the Commis sion ’s refusal to credit to his se ntence 459 days he spent on parole subjected him to multiple punishments for the same offense. Whether a defendant’s prosecution or punishment complies with the constitutional protection against double jeopardy is a quest ion
of law over which we exercise free review. State v. Santana , 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000). The Double Jeopardy Clause of the United States Constitution provides that no person
shall “ be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. C ONST

. amend. V. This guarantee includes protection against multiple criminal punishments for the
same offense. Schiro v. Farley , 510 U.S. 222, 229 (1994); State v. McKeeth , 136 Idaho 619, 622, 38 P.3d 1275, 1278 ( Ct. App. 2001). In Gibson
, t his Court rejected the same double jeopardy argument now advanced by Brown. W e explained: [R]evocation of probation does not impose an additional punishment for the originating crime because it involves only the enforcement of conditions already imposed. The revocation of Gibson’s parole constituted enforcement of a statutorily authorized condition of parole

- - that the time spent on parole would not count towards the completion of the judicially imposed sentences. See I.C. § 20

- 228.4 Similar to probation revocation, the reincarceration resulting from the violation of the terms of parole is not a separate punishment for Gibson’s underlying criminal offenses. Accordingly, Gibson’s double jeopardy claim fails as a matter of law

.
Id. at 276, 108 P.3d at 423 ( citations omitted ). For the same reasons , the district court correctly concluded that Brown’s double jeopardy claim fails as a matter of law. Brown’s argument that he was denied equal protection of the law as a result of the Commission’s forfeiture of his time served while he was on parole also fails because Brown has not shown that he was treated any differently than any other similarly situated parolee subject to
forfeiture of time served under I.C. § 20

- 228. The Equal Protection Clause is designed to assure that those persons similarly situated with respect to governmental action are treated similarly. City of Cleburne, Tex. v . Cleburne Living Ctr ., 473 U.S. 432, 439 (1985); State v. Missamore , 119 Idaho 27, 33, 803 P. 2d 528, 534 (1990); State v. Hayes , 108 Idaho 556, 560, 700 P.2d 959, 963 (Ct. App. 1985). S ee also Aeschliman v. State , 132 Idaho 397, 401, 973 P.2d 749, 753 (Ct. App. 1999) (holding that equal protection requires that persons in similar circumstances re ceive the same benefits and burdens of the law). Selective or discriminatory enforcement or application of a statute may amount to an equal protection violation under the Idaho or United
States Constitution if the challenger shows a deliberate plan of dis crimination based on some unjustifiable classification. Anderson v. Spa lding , 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); Hayes , 108 Idaho at 560, 700 P.2d at 963. Altern atively, a “class of one” may state an equal protection claim if he or she was intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment. Village of Willowbrook v.
Olech , 528 U.S. 562, 564 (2000); Viking Const ., Inc. v. Hayden Lake Irr. Dist. , 149 Idaho 187,
198

- 99, 233 P.3d 118, 129

- 30 ( 2010 ); Anderson , 137 Idaho at 514, 50 P.3d at 1009. Brown has

not alleged facts to demonstrate that in applying I.C. § 20

- 228, the Commission trea ted him differently than any other similarly situated parolee or effectuated any deliberate plan of
discrimination based on an arbitrary or unjustified classification

. Thus, the district court was correct in concluding that Brown’s equal protection claim fails as a matter of law.5 Br own’s final challenge to I.C. § 20

- 228 is that it violates due process 2 by allowing the
Commission to forfeit 459 days he spent on parole rather than credit this time against his

sentence

. According to Brown, he possessed a l iberty interest in receiving such credit against his

se ntence that was not protected during the Parole Commission’s proceedings. Like the district court, we find this assertion to be without merit.
A n inmate has a limited liberty interest in continuing parole, and is therefore entitled to due proces s before parole may be revoked. Morrissey v. Brewer , 408 U.S. 471 , 482

- 83 (1972);
State v. Rose , 144 Idaho 762, 766, 171 P.3d 253, 257 (2007). See also Mattoon v. Blades , 145
Idaho 634, 637, 181 P.3d 1242, 1245 (2008); Craig v. State , 123 Idaho 121, 124, 844 P.2d 1371, 1374 (Ct. App. 1992). Th is due process requirement for revocation of parole is satisfied by an informal hearing structured to assure that the finding of a parole violation will be based on

ve rified facts and that the Commission’s exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior. Morrissey , 408 U.S. at 484 ; Mattoon , 145 Idaho at 637,
181 P.3d at 1245. Because I.C. § 20

- 228 grants statutory authority t o the Commission to forfeit time spent on parole, the relevant question is whether the process whereby parole is revoked affords due process. As our Supreme Court has explained: I.C. § 20

- 228 does not implicate due process concerns. Mattoon is entitled t o only limited due process in the revocation of parole because of his limited liberty status. As such, the forfeiture of his parole pursuant to a valid parole revocation hearing satisfies due process requirements.

Mattoon , 145 Idaho at 638, 181 P.3d at 1 246

. Brown has not alleged that he was not afforded due process during his parole revocation hearing . The substance of Brown’s complaint is that his time served on parole should not be
forfeited at all

- - not that it was forfeited without the requisite proc edural protections. Therefore, the district court did not err in dismissing Brown’s due process/liberty interest claim.
B

. Request for Counsel Brown also argues that the district court erred by not appointing counsel to represent him. In a habeas corpus proceeding, the petitioner has no mandatory right to appointed counsel.

2 This Court has held that “the due process guarantees under the federal and state constitutions are substantially the same” and therefore arguments claiming violation of both federal and state due process protections will be addressed together. State v. Sh elton , 129 Idaho 877, 879, 934 P.2d 943, 945 (Ct. App. 1997).6 Dopp , 144 Idaho at 405, 162 P.3d at 784; Quinlan
, 138 Idaho at 730, 69 P.3d at 150. There is no statutory right to counsel u nder I.C. § 19

- 852 or § 19

- 4904, Dopp , 144 Idaho at 405
, 162 P.3d at
784 ; Quinlan , 138 Idaho a t 730, 69 P.3d at 150 ; and the Sixth Amendment right to counsel does
not attach because a habeas action is civil in nature. Dopp , 144 Idaho at 405, 162 P.3d at 784. Under extraordinary circumstances, there may be a du e process right to counsel, but these special
circumstances do not exist where th e case is not unusually complex

. Id

. Here, we have held that Brown’s underlying claims are unmeritorious on their face. He has made no showing of any potentially meritorio us claim at all, much less one of such complexity that due process might require appointment of counsel ; nor has he shown any other extraordinary circumstances necessitating the services of counsel. Thus, the district court did not err in denying Brown’s initial motion for appointment of counsel. Brown contends that the district court should have granted his motion for reconsideration of the denial of counsel because prison officials interfered with his mail, withheld his mail, and rerouted it, thereby pre venting him from making a timely reply to the Commission’s motion to dismiss his petition for a writ of habeas corpus. According to Brown’s briefing on appeal, he did not receive a copy of the State’s motion until after the district court had already ente red the order dismissing his petition. We find no error. First, Brown never laid out to the district court his present contention that he did not receive the State’s motion until after entry of the court’s dismissal order. Rather,
his motion to reconsid er appointment of counsel merely made the vague statement that “Petitioner is now having problems getting his legal mail so he may defend his petition,” and his supporting affidavit made a similarly vague statement that “I believe I am being retaliated

aga inst, for filing a claim against the Parole Commission, in way of not receiving my legal mail.” Thus, Brown never made it clear to the district court that he allegedly had not received the State’s motion to dismiss in time to respond to it. Second, even i f these alleged facts had been clearly stated to the district court, they did not present a circumstance requiring appointment of counsel since, as we have held above, Brown’s claims for a writ of habeas corpus are unmeritorious on their face. Had these a lleged facts been presented to the district court with a request for reconsideration of the dismissal order and an opportunity for Brown to respond to the dismissal motion, such relief would have been7 warranted, but Brown never requested that relief. Even on appeal, he has not presented any argument that would constitute a valid basis for denial of the Commission’s dismissal motion. Finally, if and to the extent that Brown is attempting to assert on appeal a claim that interference with his mail deprived him of his constitutional right of access to the court, we will
not address it because it was not raised below. 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,
1 062 (1991).
III.
CONCLUSION The district court’s orders denying Brown’s mo tion for appointment of counsel and his motion for reconsideration of his request for counsel , and the district court’s order dismissing Brown’s petition for a writ of habeas corpus are affirmed. Chief Judge GRATTON and Judge GUTIERREZ CONCUR.