This opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed.
Appeal fro 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.
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.[*]
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 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 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 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 ...