IN THE COURT OF APPEALS OF IOWA

No. 3-1133 / 12-1361

Filed February 19, 2014

JOSE RUESGA,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Lee (North) County, John G. Linn, 

Judge. 

Ruesga appeals from the district court order dismissing his application for 

postconviction relief. AFFIRMED.

Jose Ruesgo, Fort Madison, pro se appellant.

Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant 

Attorney General, for appellee.

Considered by Doyle, P.J., Bower, J., and Miller, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 
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MILLER, S.J.

Jose Ruesga is an inmate at the Iowa State Penitentiary at Fort Madison. 

In 2012 he was charged with violating an institutional rule. In a prison 

disciplinary proceeding, Ruesga was found to have violated the rule and received 

fifteen days of disciplinary detention as the only sanction imposed. His appeal 

and supplemental appeal to the warden were denied. Ruesga then filed an 

application for postconviction relief with the district court. In his application 

Ruesga raised as grounds for relief claims that the “report” against him had been 

brought in retaliation for him “giving a statement against an officer being 

investigated,” and that the conduct he had been accused of did not in fact 

constitute a violation of the institutional rule in question. His request for relief 

included a request for “dismissal of report and expunge[ment] from file.”

The State filed a motion to dismiss, pointing out that the only sanction 

imposed had been fifteen days of disciplinary detention and Ruesga had not lost 

any “earned time.” The State asserted that the sanction thus involved no 

substantial deprivation of a liberty or property interest and that under such 

circumstances Ruesga’s application did not state a claim cognizable in an action 

for postconviction relief. 

On July 5, 2012, Ruesga filed a response to the State’s motion. He 

alleged he was serving a life sentence and argued that his having been found to 

have violated an institutional rule would “impact my application for commutation.” 

Ruesga cited the June 25, 2012 decision in Miller v. Alabama, 567 U.S. ___, ___, 

132 S. Ct. 2455, 2464, 183 L. Ed. 2d 407, 424 (2012), for the proposition that 
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mandatory life imprisonment without parole for persons who were under the age 

of eighteen at the time of their crimes constituted unconstitutional cruel and 

unusual punishment. He asserted he had been incarcerated for twenty years, 

and had not had but was entitled to “a hearing to consider mitigating 

circumstances” concerning his “possibility of rehabilitation versus life 

imprisonment” and a possible commutation of his sentence. Ruesga argued that 

the erroneous finding he had violated an institutional rule would have an impact 

at such a hearing. Although Ruesga does not expressly so state, we read these 

statements in his response as an assertion that he was sentenced to a 

mandatory term of life imprisonment without possibility of parole for a crime 

committed while he was under eighteen years of age. 

The district court sustained the State’s motion to dismiss. It noted that

Ruesga had lost no “earned time.” It concluded that the sanction of fifteen days 

disciplinary detention did not result in any substantial deprivation of a liberty or 

property interest. In support of its conclusion the court cited Iowa Code section

822.2(1)(f) (2011); Tabor v. State, 519 N.W.2d 378, 380 (Iowa 1994); and Ragan 

v. Lynch, 113 F.3d 875, 876 (8th Cir. 1997).

Ruesga appeals. He asserts he was less than eighteen years of age at 

the time of the crime for which he was sentenced to a mandatory term of life 

imprisonment without the possibility of parole—an unconstitutional sentence 

under Miller v. Alabama—and he is thus entitled to a “mitigating circumstances 

hearing” as defined in that case. See Miller, 567 U.S. at ___, 132 S. Ct. at 2474, 

183 L. Ed. 2d at 430. He contends that the finding he violated an institutional 
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rule results in a substantial deprivation of a liberty interest because it will have an 

impact at such a hearing. This contention implicitly relies on the underlying 

contention, expressly made in his application for postconviction relief, that the 

finding of a rule violation was erroneous. 

As a preliminary matter, we note that in his brief Ruesga asserts that his 

July 5, 2012 resistance to the State’s motion to dismiss was “never ruled on.” If 

this were true, Ruesga has arguably failed to preserve error, as the issue he 

raises on appeal is essentially the same as an issue not expressly stated in his 

application for postconviction relief but made clear in his response to the State’s 

motion to dismiss. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) 

(noting that when a district court fails to rule on an issue properly raised by a 

party, the party who raised the issue must file a motion requesting a ruling in 

order to preserve error for appeal). We do note, however, that in its order the 

district court expressly mentioned that Ruesga had “filed a response to the 

motion on July 5, 2012.” It thus seems clear that the court was aware of and 

considered Ruesga’s resistance in sustaining the State’s motion. See id. at 864 

(“If the court’s ruling indicates that the court considered the issue and necessarily 

ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue has 

been preserved.”).

The State asserts that Ruesga has failed to preserve error on the issue he 

presents on appeal. It points out he did not raise his present contention—that his 

erroneous prison discipline will affect his sentence because it will have an impact 

at his resentencing hearing—in the administrative proceeding. It further asserts 
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the issue was not “cited in his application for postconviction relief.” The State 

cites and quotes Miller v. Iowa District Court, 603 N.W.2d 86, 88 (Iowa 1999),

and cites other cases, for the proposition that “[b]efore seeking postconviction 

relief concerning action taken by a prison disciplinary committee, the prisoner 

must first exhaust his administrative remedies by raising the basis for the 

requested relief in the administrative process.” The next question is how to apply 

this well-established principle to the particular facts of this case. 

The warden’s response to Ruesga’s appeal, attached to and a part of 

Ruesga’s application for postconviction relief, praises “the positive progress 

you’ve demonstrated during your incarceration.” It acknowledges that Ruesga 

“[d]isagree[s] with the decision” and states that the warden does not “accept 

[Ruesga’s] contention” that Ruesga’s conduct did not violate the rule in question. 

The warden’s response to Ruesga’s supplemental appeal, similarly attached to 

and a part of Ruesga’s application, indicates that Ruesga “[d]en[ies] the 

violations,” “disagree[s] with the decision,” and contends his conduct did not 

violate the rule. The response states that the warden “disagrees with [Ruesga’s] 

interpretation” of the rule, and the warden concludes Ruesga’s conduct did 

“indeed meet the criteria of the charge.” We therefore conclude that Ruesga did 

exhaust administrative remedies concerning his underlying claim that he was 

erroneously found to have violated an institutional rule. 

In his application for postconviction relief, however, and on appeal, 

Ruesga goes somewhat further than merely contending his conduct did not 

violate the institutional rule. He contends that the allegedly erroneous finding of 
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a rule violation implicates a liberty interest because it will have an impact on the 

outcome of the resentencing hearing to which he is entitled to consider 

“mitigating circumstances.” The State’s claim that Ruesga has not preserved 

error must of necessity at least in part go to this further contention. 

If the administrative process had been resolved in Ruesga’s favor with a 

determination that his conduct did not violate the institutional rule in question, 

Ruesga would have had no grounds on which to file an application for 

postconviction relief raising this contention. Otherwise stated, his claim that the

erroneous administrative finding he violated an institutional rule will have an 

impact on his resentencing hearing was not ripe until the conclusion of the 

administrative process. We therefore do not agree with the State’s contention 

that Ruesga has failed to preserve error on the issue he presents. 

The State’s pre-answer motion to dismiss identifies the question it raises 

as whether Ruesga’s application for postconviction relief “states a claim when the 

only punishment is only 15 days of disciplinary detention.” The motion is thus 

one to dismiss for “[f]ailure to state a claim upon which any relief may be 

granted.” See Iowa R. Civ. P. 1.421(1)(f). 

A motion to dismiss [for failure to state a claim upon which 

any relief may be granted] is properly granted only if a plaintiff’s 

petition on its face shows no right of recovery under any state of 

facts. A motion to dismiss is properly granted only when there 

exists no conceivable set of facts entitling the non-moving party to 

relief. Under notice pleading, nearly every case will survive a 

motion to dismiss. The petition need not allege ultimate facts that 

support each element of the cause of action. The petition, 

however, must contain factual allegations that give the defendant 

fair notice of the claim asserted so the defendant can adequately 

respond to the petition. A petition complies with the fair notice 

requirement if it informs the defendant of the incident giving rise to 
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the claim and of the claim’s general nature. We view the plaintiff’s 

allegation in the light most favorable to the plaintiff with doubts 

resolved in that party’s failure. 

Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004). “A motion to 

dismiss admits the well-pleaded facts in the petition, but not the conclusions.” 

Kingsway Cathedral v. Dep’t of Transp., 711 N.W.2d 6, 8 (Iowa 2006). 

Our review of a district court ruling on a motion to dismiss for failure to 

state a claim upon which any relief may be granted is for correction of errors of 

law. Id. at 7. However, when violation of a constitutional right is raised, we make 

a de novo review of the evidence relevant to the constitutional issue. See, e.g., 

State v. Iowa Dist. Ct., 801 N.W.2d 513, 517 (Iowa 2011) (holding that although 

review of a certiorari action is for correction of errors at law, the evidence 

relevant to an allegation of aviolation of a constitutional right is reviewed de 

novo); Webster Cnty. Bd. of Supervisors v. Flattery, 268 N.W.2d 869, 872 (Iowa 

1978) (same). 

We conclude that under our notice pleading, in ruling on the motion to 

dismiss, the district court was required to accept as fact that Ruesga was serving 

mandatory life imprisonment without parole for a crime committed under the age 

of eighteen (and was thus entitled to a resentencing hearing to consider 

“mitigating circumstances” and the possible commutation of his sentence), and 

that the prison officials erroneously interpreted and applied the rule he was 

charged with violating, resulting in an erroneous finding that he had violated the 

rule in question. The question that remains concerns Ruesga’s conclusion that a 
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liberty interest is implicated because the finding will necessarily have an impact 

on the outcome of his resentencing hearing. 

No person shall be deprived of liberty without due process of law. U.S. 

Const. amend. V; Iowa Const. art. I, § 9. In his resistance to the State’s motion 

to dismiss, Ruesga cited Tabor, 519 N.W.2d at 378. In that case Tabor, an 

inmate of the Iowa State Penitentiary, was disciplined for violating an institutional 

rule. Tabor, 519 N.W.2d at 379. The district court denied postconviction relief. 

Id. On appeal our supreme court identified two situations in which postconviction 

relief procedures established in Iowa Code chapter 822 may be utilized to review 

prison disciplinary proceedings. Id. at 380. Citing Iowa Code section 822.2(6) 

(1993), the court identified the first as “when ‘[t]he persons’ reduction of sentence 

pursuant to [statutes allowing an inmate to earn time toward early release] has 

been unlawfully forfeited.’” Id. Citing Davis v. State, 345 N.W.2d 97, 99 (Iowa 

1984), the court identified the second as the situation in which “the particular 

discipline imposed, although not resulting in forfeiture of a sentence reduction 

under those statutes, otherwise results in a substantial deprivation of the 

applicant’s liberty [or] property interest.” Id. The court affirmed the denial of 

relief, holding that the only discipline imposed, a reprimand, met neither of the 

two described situations. Id.

About seven months later the United States Supreme Court decided 

Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). 

Conner, an inmate serving thirty years to life in a Hawaii prison, was charged 

with “high misconduct” and was also charged with “low moderate misconduct” for 
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violating various institutional rules. Sandin, 515 U.S. at 474-75, 115 S. Ct. at 

2295-96, 132 L. Ed. 2d at 424. An institutional adjustment committee determined 

he was guilty of the charged misconduct, and Conner was disciplined by the 

imposition of thirty days of disciplinary segregation for the high misconduct and 

four hours of disciplinary segregation for each of the two other misconducts. Id.

at 475-76, 115 S. Ct. at 2296, 132 L. Ed. 2d at 424. Conner sought 

administrative review, resulting in a determination the high misconduct charge 

was unsupported and the expungement of his records as to that charge. Id. at 

476, 115 S. Ct. at 2296, 132 L. Ed. 2d at 424-25. Conner subsequently sued, 

claiming his rights to due process of law had been violated by the disciplinary 

committee denying his request to present witnesses at the disciplinary hearing. 

Id. at 476, 115 S. Ct. at 2296, 132 L. Ed. 2d at 425. 

In Sandin, the U.S. district court granted the prison officials summary 

judgment, the Court of Appeals for the Ninth Circuit reversed, and the Supreme 

Court granted certiorari. Id. at 476-77, 115 S. Ct. at 2297, 132 L. Ed. 2d at 425. 

The Supreme Court reversed the decision of the Ninth Circuit. Id. at 488, 115 S. 

Ct. at 2296-97, 132 L. Ed. 2d at 432. It identified two instances in which liberty 

interests of prisoners are implicated, “when a restraint imposes ‘atypical and 

significant hardship on the inmate in relation to the ordinary incidents of prison 

life,’” and “when a restraint ‘will inevitably affect the duration of [the inmate’s] 

sentence.’” See Reilly v. Iowa Dist. Ct., 783 N.W.2d 490, 494-95 (Iowa 2010) 

(citing and quoting Sandin, 515 U.S. at 484, 487, 115 S. Ct. 2300, 2302, 132 L. 

Ed. 2d 418, 430-31. 
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We view the second situation identified in Tabor, a situation in which “the 

particular discipline imposed, although not resulting in forfeiture of a sentence 

reduction under the statutes, otherwise results in a substantial deprivation of the 

applicant’s liberty . . . interest,” 519 N.W.2d at 380, as essentially the same as 

the first instance described in Sandin—“when a restraint imposes atypical and 

significant hardship on the inmate in relation to the ordinary incidents of prison 

life.” 515 U.S. at 487, 115 S. Ct. at 2302, 132 L. Ed. 2d at 430-31. Sandin

rejected the idea that thirty days of disciplinary segregation presented such a 

deprivation as might create a liberty interest under this test. Id. We similarly 

reject the idea that Ruesga’s fifteen days of disciplinary detention created a 

liberty interest subject to due process protection under this test. 

We view the second instance identified in Sandin—“when a restraint ‘will 

inevitably affect the duration of [the inmate’s] sentence’”—as encompassing the 

first situation identified in Tabor—“when ‘[t]he person’s reduction of sentence 

pursuant to [statutes allowing an inmate to earn time toward early release] has 

been unlawfully forfeited.’” See Sandin, 515 U.S. at 484, 487, 115 S. Ct. at 2300, 

2302, 132 L. Ed. 2d at 430-31; Tabor, 519 N.W.2d at 380. 

Iowa’s statutes providing for earned time credits toward early release 

create a liberty interest in any credits an inmate has accrued. Sanford v. 

Manternach, 601 N.W.2d 360, 364 (Iowa 1999). A liberty interest also exists in 

the right to accrue such credits. Holm v. Iowa Dist. Ct., 767 N.W.2d 409, 417-18 

(Iowa 2009). Minimal requirements of procedural due process must therefore be 

observed before an inmate may be deprived of either of these rights. See, e.g.,
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Sanford, 601 N.W.2d at 464 (citing and quoting cases holding that an inmate has 

a constitutionally protected liberty interest in earned credits, and that minimum 

requirements of procedural due process must be observed before earned time 

can be forfeited). The discipline imposed in Ruesga’s case did not, however, 

affect either earned credits or the right to accrue credits. We are left with the 

question of whether Ruesga’s conclusion that his discipline—fifteen days of 

disciplinary detention—will necessarily impact his application for resentencing in 

his anticipated resentencing hearing. Otherwise stated, in the terms expressed 

in Sandin, will that discipline “inevitably affect the duration of [Ruesga’s] 

sentence.” See Sandin, 515 U.S. at 484, 487, 115 S. Ct. at 2300, 2302, 132 L. 

Ed. 2d at 430-31. For the reasons that follow, we cannot reach such a 

conclusion under any set of facts provable under the facts alleged in Ruesga’s 

application. 

“Inevitable” means “incapable of being avoided or evaded,” Webster’s 

New Collegiate Dictionary 584 (1980), or “certain to happen” Webster’s New 

Universal Unabridged Dictionary 936 (Deluxe 2nd Ed. 1979). In Tabor, an 

inmate at the Iowa State Penitentiary received a reprimand for being at an 

improper location. 519 N.W.2d at 380. He asserted that the discipline would 

affect his right to discretionary reduction of a Wyoming sentence that he was also 

serving, resulting in a substantial deprivation of a liberty interest. Id. Our 

supreme court affirmed the denial of relief, holding that “deprivations for which 

postconviction relief may be cognizable . . . do not include the collateral 

consequences of sanctions imposed by Iowa authorities on prisoner’s sentences 
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in other states.” Id. Although Ruesga’s request for relief is somewhat different, 

in that it relates to an opportunity for reduction of an Iowa sentence rather than 

the sentence of another state, it is also somewhat similar in that it involves 

hypothetical “collateral consequences” of discipline rather than direct 

consequences of discipline. 

In Sandin, the Supreme Court held that inmate Conner’s situation did not 

present a case in which the State’s action in disciplining him would inevitably 

affect the duration of his sentence as state law did not “require[ ] the parole board 

to deny parole in the face of a misconduct record or to grant parole in its absence 

. . . even though misconduct is by regulation a relevant consideration.” 515 U.S.

at 487, 115 S. Ct. at 2302, 132 L. Ed. 2d at 431-32. This analysis may 

reasonably be viewed as indicating that when discretion is involved in imposing 

or modifying a sentence, factors such as a record of discipline that may play 

some small role but are not determinative do not implicate a liberty interest. 

Our district court has broad discretion in sentencing, provided any 

sentence imposed is within constitutional boundaries and statutory limits. State 

v. Null, 836 N.W.2d 41, 58 (Iowa 2013) (stating the supreme court has a 

constitutional obligation to ensure sentences remain within constitutional 

boundaries); State v. Dailey, 774 N.W.2d 316, 319 (Iowa Ct. App. 2009) (stating 

Iowa Code “section 901.5 vests the district court with broad discretion in 

imposing sentences within statutory limits”). 

In Miller v. Alabama, the Supreme Court held that a sentence of 

mandatory life imprisonment without possibility of parole for a crime committed 
13

while a juvenile violates the prohibition of cruel and unusual punishment 

contained in the Eighth Amendment to the United States Constitution. 567 U.S. 

at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. Citing and quoting its previous 

cases that described numerous “gaps between juveniles and adults,” the court 

stated that “children are constitutionally different from adults for purposes of 

sentencing.” Id. at ____, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418. The court 

pointed out its previous insistence “that a sentencer had the ability to consider 

the ‘mitigating qualities of youth,’” and that mandatory life-without-parole 

sentences preclude sentencers “from taking account of an offender’s age and the 

wealth of characteristics and circumstances attendant to it.” Id. at ___, 132 S. Ct. 

at 2467, 183 L. Ed. 2d at 422. 

Recent Iowa cases are to the same effect. See, e.g., State v. Ragland, 

836 N.W.2d 107, 121 (Iowa 2013) (“In light of our increased understanding of the 

decision making of youths, the sentencing process must be tailored to account in 

a meaningful way for the attributes of juveniles that are distinct from adult 

conduct.”); State v. Pearson, 836 N.W.2d 88, 97 (Iowa 2013) (stating, in vacating 

a juvenile’s lengthy sentence and remanding, that “a juvenile’s culpability is 

lessened because the juvenile is cognitively underdeveloped relative to a fullydeveloped adult,” and holding that in resentencing Pearson such “lessened 

culpability is a mitigating factor that the district court must recognize and 

consider”); Null, 836 N.W.2d at 74 (stating, in vacating a juvenile’s lengthy 

sentence and remanding, that “the district court must recognize that because 

‘children are constitutionally different from adults,’ they ordinarily cannot be held 
14

to the same standard of culpability as adults in criminal sentencing,” and “[t]he 

constitutional difference arises from a juvenile’s lack of maturity, underdeveloped 

sense of responsibility, vulnerability to peer pressure, and the less fixed nature of 

the juvenile’s character”). 

Miller, and the Iowa cases cited above, thus strongly suggest that in 

sentencing or resentencing someone for a crime committed while a juvenile, 

while other factors may be considered the strong emphasis is to be placed on the 

age of the offender at the time of the crime and the characteristics and 

circumstances attending that age. 

Given the foregoing facts and law, can we accept Ruesga’s conclusion 

that his one incident of prison misconduct will necessarily affect the outcome of 

his anticipated resentencing hearing, and thus “inevitably affect the duration of 

[his] sentence”? In Sandin, in reversing the Ninth Circuit and thus reinstating the 

district court’s grant of summary judgment, the Supreme Court held that Conner’s 

situation did not “present a case where the State’s action will inevitably affect the 

duration of his sentence.” 515 U.S. at 487, 115 S. Ct. at 2302, 132 L. Ed. 2d at 

431. It noted that Hawaii law did not require the parole board to deny parole 

because of the misconduct or grant parole in its absence. Id. at 487, 115 S. Ct. 

at 2302, 132 L. Ed. 2d at 431-32. The court noted that parole decisions rest on 

many considerations, stated that “[t]he chance that a finding of misconduct will 

affect the balance is simply too attenuated to invoke the procedural guarantees 

of the Due Process Clause,” and held that Conner therefore did not have a 
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protected liberty interest that would entitle him to procedural protections such as 

the asserted right to present witnesses at the disciplinary hearing. 

Ruesga has apparently been incarcerated for twenty years and the 

warden praises his demonstrated progress. The misconduct and disciplinary 

proceeding is entirely collateral to Ruesga’s criminal case. At any resentencing 

that might occur, the district court would have broad discretion. The primary 

focus at any resentencing hearing will be the “mitigating qualities of youth,” and 

Ruesga’s age and attending characteristics and circumstances at the time of his 

crime. As noted above, “inevitable” means “certain to happen.” We conclude 

that under these facts and the applicable law, the chance Ruesga’s discipline 

would affect the result of any resentencing in such a manner as to “inevitably 

affect the duration of [Ruesga’s] sentence” is based on nothing but speculation 

and conjecture and is thus too attenuated to give rise to a due-process-protected 

liberty interest. We therefore affirm the district court’s dismissal of Ruesga’s 

application. 

AFFIRMED.