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Marcus Gene Arnett v. State of Alaska

IN THE COURT OF APPEALS OF THE STATE OF ALASKA


April 20, 2011

MARCUS GENE ARNETT,
APPELLANT,
v.
STATE OF ALASKA, AND JUDGMENT APPELLEE.

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Court of Appeals No. A-10602 Trial Court No. 3AN-09-5216 CI

The opinion of the court was delivered by: Bolger, Judge.

NOTICE

Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

Marcus Gene Arnett's parole was revoked because he failed to attend a sex offender assessment. Arnett argues that his parole should have terminated on the date stated in his original sentence, that the parole conditions requiring him to participate in sex offender treatment violated his privilege against self-incrimination, and that he was deprived of his right to cross-examine adverse witnesses during his parole revocation hearing. We conclude Arnett failed to raise any material factual issues supporting his confrontation claim and that his other claims are barred by collateral estoppel.

Background

In 1990, Arnett was convicted of three counts of first-degree sexual abuse of a minor for sexually abusing his stepdaughter and sentenced to sixteen years with one year suspended. Arnett was also convicted of failing to appear at his trial and was sentenced to two-and-a-half years with one year suspended. Arnett has previously been released on parole, and his release has been revoked on several previous occasions.*fn1

In November 2007, Arnett was again on parole release. Arnett sent an e- mail to his parole officers indicating he would not participate in a sex offender assessment. He was arrested two days later for failing to attend a previously scheduled assessment. The parole violation report indicated that the parole officers informed Arnett by e-mail and telephone about the date of the assessment and that they were notified when Arnett failed to attend.

Based on this violation, the Parole Board revoked Arnett's parole and imposed the remainder of his sentence. The order revoking Arnett's parole states that Arnett admitted the charged violation.

Arnett filed an application for post-conviction relief, alleging that his parole release date had been extended in violation of the guarantee against double jeopardy, that he was denied the right to cross-examine witnesses at his parole revocation hearing, and that he had a Fifth Amendment right to refuse to participate in sex offender treatment.

After the State filed its answer, Arnett filed a motion for summary disposition, arguing that there were no genuine issues of material fact and that he was entitled to post-conviction relief as a matter of law.*fn2 Superior Court Judge Michael Spaan concluded that Arnett's claim about his parole termination date had already been decided by this court in a 2007 decision.*fn3 Judge Spaan also concluded that this court had previously rejected Arnett's self-incrimination claim.*fn4

Judge Spaan also concluded that Arnett had failed to present any evidence supporting his claim that he was denied the right to cross-examine adverse witnesses at his parole revocation hearing. The judge warned Arnett that the court would summarily dismiss his application unless he filed evidence to support his claim.

Arnett did not provide any additional evidence supporting his confrontation claim. The court then dismissed Arnett's application for post-conviction relief, and Arnett now appeals.

Discussion

Judge Spaan granted summary disposition to the State. To review this order, we view the evidence in the light most favorable to Arnett and ask whether the State established that there were no material issues of fact and whether the State was entitled to dismissal as a matter of law.*fn5

Arnett's parole termination date

Arnett argues that his parole should have terminated on the date set in his original sentence. In response, the State contends that this claim is barred by our previous decision in Arnett's 2007 appeal. Under the doctrine of collateral estoppel, parties are prohibited "from re-litigating factual or legal issues that were essential to the decision of a previous lawsuit between the parties."*fn6

In our 2007 decision, we analyzed and rejected Arnett's argument that his parole supervision should have expired on the date originally calculated when he was first released from prison.*fn7 Arnett also argued that "even if his parole was properly revoked, the extension of his parole and probation expiration dates violates the guarantee against double jeopardy, in that it constitutes an increase in his sentence after the fact."*fn8 But we concluded that "a defendant's sentence is not increased for double jeopardy purposes when the defendant's parole is revoked, even though the defendant receives no credit against their sentence for the time spent on parole."*fn9

In the present case, Arnett again asserts that his parole supervision should have terminated on the date originally calculated and that the extension of his parole supervision violated double jeopardy. These issues are identical to the issues we decided in the 2007 decision. We conclude that Arnett's current claims are barred by the doctrine of collateral estoppel.

The self-incrimination claim

Arnett argues that the parole condition requiring him to obtain a sex offender assessment violated his privilege against self-incrimination because he could have been required to make statements about the crimes that he committed. Judge Spaan also concluded that this claim was resolved in our 2007 decision. In our 2007 decision, we noted that Arnett did not have a privilege to refuse to make statements about the offenses for which he has already been convicted because he no longer faced any realistic threat of prosecution.*fn10 Arnett's present claim is identical to the claim we resolved in this 2007 decision. The superior court correctly concluded that Arnett's self- incrimination claim was precluded because we previously ruled on this claim.

The cross-examination claim

Arnett also argues that his right to due process was denied since he did not have the opportunity to cross-examine the two parole officers that filed the parole violation report. He asserts that a third probation officer testified at the parole revocation hearing. In the superior court, Judge Spaan concluded that Arnett had "presented no evidence ... that the parole board deprived him of the opportunity to cross-examine ... witnesses."

A parolee has a due process right to a revocation hearing that includes the right to cross-examine adverse witnesses.*fn11 But the rules of evidence do not apply.*fn12

And there is no due process right to an adversarial hearing when there are no factual issues to resolve.*fn13

Arnett did not offer any evidence about what happened at the parole revocation hearing, except the board's final order of revocation. The order indicates that Arnett admitted the charged violations. This evidence is consistent with Arnett's stated refusal to follow the condition requiring him to participate in the sex offender assessment. Arnett failed to raise any factual dispute about the parole violation charge or the conduct of the hearing. Arnett has therefore not shown that the Parole Board denied his due process right to cross-examine adverse witnesses.

Miscellaneous claims

Arnett also argues that Judge Spaan was biased because he only addressed Arnett's confrontation claim and did not discuss the claims that were barred by collateral estoppel. Arnett alleges that Judge Spaan's decision was a "cover-up" of illegal actions, including various Department of Corrections decisions and our 2007 decision on his appeal. But Arnett did not raise this issue in the lower court.

"Even a pro se litigant waives a claim where she does not raise it in superior court."*fn14 We conclude that Arnett has waived his objection alleging that Judge Spaan was biased.

Arnett may be making other arguments in this appeal, but his briefing is inadequate to allow us to address them.*fn15

Conclusion

We AFFIRM the superior court's judgment dismissing the application for post-conviction relief.


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