BRENT A. COLES, Appellant,
CONNIE S. BISBEE, CHAIRMAN; THE NEVADA BOARD OF PAROLE COMMISSIONERS; THE NEVADA DEPARTMENT OF CORRECTIONS; AND THE STATE OF NEVADA, Respondents.
appeal from a district court order dismissing a petition for
declaratory relief. First Judicial District Court, Carson
City; James E. Wilson, Judge.
A. Coles in Pro Se.
Paul Laxalt, Attorney General, and Kathleen Brady, Deputy
Attorney General, Carson City, for Respondents.
PICKERING, GIBBONS and HARDESTY, JJ.
appeal, we address whether the Parole Board's use of the
Static-99R recidivism risk assessment complies with the
relevant statutory provisions governing parole review for
prisoners convicted of sexual offenses, as well as whether
changes to the statutory scheme regarding parole review
violate the Ex Post Facto Clause of the United States
Constitution. We conclude that the use of the Static-99R
assessment comports with NRS 213.1214's assessment
requirements and that changes to parole procedures do not
constitute an ex post facto violation unless they create a
significant risk of prolonging the inmate's
incarceration, which is not the case here. Further, we reject
appellant's argument that the use of the Static-99R
assessment violates an inmate's due process rights and
reaffirm that Nevada's parole statute does not create a
liberty interest to sustain a due process claim.
AND PROCEDURAL HISTORY
Brent A. Coles is currently incarcerated for a sexual offense
and eligible for parole. As part of his parole review,
Coles' recidivism risk was assessed with the Static-99R
risk assessment. The assessment scores ten characteristics of
an inmate's personal history and are "static"
in that they are based on objective facts about the inmate
and the offense and do not change, except as to the
inmate's age at release. The assessment classified Coles
as a high risk to recidivate, and the Parole Board denied
filed a petition for declaratory judgment, arguing that (1)
the Static-99R assessment does not constitute a
"currently accepted standard of assessment" for
purposes of NRS 213.1214(1); (2) assessing the risk of
recidivism is relevant only where an inmate is to be paroled
into the community, not here where Coles would be paroled to
serve a consecutive sentence, and the assessment should
accordingly not be considered in this instance; (3) he has a
due process right to be provided with a copy of the risk
assessment; (4) changes to the parole statutes enacted after
Coles was initially convicted violate the constitutional
prohibition against ex post facto punishments; and (5) he
should receive a new risk assessment that includes
"dynamic" as well as "static" factors.
The State moved to dismiss under NRCP 12(b)(5) for failure to
state a claim on which relief could be granted, and the
district court granted the State's motion. Coles appealed
to this court, renewing his arguments that the Static-99R
does not comply with NRS 213.1214(1) and that the parole
review procedures subjected him to an unconstitutional ex
post facto law and violated his due process rights.
court will not review challenges to the evidence supporting
Parole Board decisions, but will consider whether the Board
has properly complied with the applicable statutes and
regulations. See Anselmo v. Bisbee, 133 Nev., Adv.
Op. 45, 396 P.3d 848, 851, 853 (2017). As Coles' claims
do not support a declaratory judgment, we affirm. See
Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224,
228, 181 P.3d 670, 672 (2008) (reviewing de novo an order
granting a motion to dismiss under NRCP 12(b)(5)); Kress
v. Corey, 65 Nev. 1, 26, 189 P.2d 352, 364 (1948)
(providing that, to obtain declaratory relief, a plaintiff
must show (1) a justiciable controversy, (2) between persons
with adverse interests, (3) where the party seeking
declaratory relief has a legal interest in the controversy,
and (4) the issue is ripe for judicial determination).
first argues that the Static-99R assessment was not formally
adopted as or determined to be a "currently accepted
standard of assessment" for use in his parole hearing.
This argument goes beyond what the statute requires and does
not provide a basis for reversal. NRS 213.1214(1) requires
the Department of Corrections to "assess each prisoner
who has been convicted of a sexual offense to determine the
prisoner's risk to reoffend in a sexual manner using a
currently accepted standard of assessment." The
assessment must determine the risk that a prisoner would
reoffend in a sexual manner and be provided to the Parole
Board before the prisoner's hearing. Id. The
legislative history shows that the Static-99R assessment was
considered as an accepted standard of assessment in enacting
a parole statute that more accurately assessed recidivism
risk. Hearing on S.B. 104 Before the Assembly Judiciary
Comm., 77th Leg. (Nev., April 29, 2013); Hearing on S.B. 104
Before the Senate Judiciary Comm., 77th Leg. (Nev., April 10,
2013). The statute does not require that any entity must
designate a currently accepted standard of assessment or that
it be otherwise certified for the use of the Static-99R to
comply with NRS 213.1214. To the extent that Coles argues
that his risk assessment should have been processed
differently because the convictions for his sex crimes had
expired, he is mistaken because the assessment is considered
if an inmate "has ever been convicted of a sexual
offense." NAC 213.514(3). We decline to consider
Coles' further arguments against the wisdom of applying
this particular assessment tool. See NRS 213.1214(3)
(providing that no cause of action regarding parole
assessments may be raised if the actions comply with the
statutory provisions). The district court therefore did not
err in denying this claim. See Williams v. Nev. Dep't
of Corr., 133 Nev., Adv. Op. 75, 402 P.3d 1260, 1262
(2017)(reviewing issues of statutory interpretation de novo).
next argues that changes to the parole statute enacted after
his conviction rendered parole more difficult to obtain and
thus constituted impermissible ex post facto punishment. This
argument likewise does not provide a basis for reversal
because Coles has not shown that the changes created a risk
of prolonged imprisonment. An ex post facto law is one that
retroactively changes the definition of a crime or increases
the applicable punishment. Cal. Dep't of Corr. v.
Morales, 514 U.S. 499, 504 (1995). Retroactive changes
in laws regarding parole procedures may violate the Ex Post
Facto Clause when they create a significant risk of
prolonging the inmate's incarceration. Garner v.
Jones, 529 U.S. 244, 250-51 (2000). To the extent that
Coles challenges the application of NRS 213.1214 to him as an
ex post facto violation, this claim fails. See Moor v.
Palmer, 603 F.3d 658, 664-66 (9th Cir. 2010) (rejecting
ex post facto challenge to NRS 213.1214, adopted after the
inmate's conviction, because the statute did not pose a
significant risk of extended incarceration). To the extent
that Coles challenges the elimination of the Psychological
Review Panel after Moor was decided, the legislative
history shows that the Panel was eliminated in part because
it rated inmates as too high a risk to reoffend, Hearing on
S.B. 104 Before the Senate Judiciary Comm., 77th Leg. (Nev.,
March 5, 2013), and thus the risk posed by the Panel's
elimination favored inmates. And even assuming the accuracy
of Coles' representation that he was classified as a
lower risk to recidivate under a prior metric, by his own
admission that classification occurred before he violated his
parole and received another felony conviction, such that he
has failed to show that any change in regulation brought
about his purported change in risk classification. See
Moor, 603 F.3d at 665 (observing that the risk of
prolonging incarceration was less likely where the inmate had
previously violated his parole). The district court therefore
did not err in denying this claim. See Flemming v. Or.
Bd. of Parole, 998 F.2d 721, 723 (9th Cir. 1993)
(reviewing ex post facto claims de novo).
Coles argues that the use of the Static-99R violates his due
process rights because he has not been permitted to review
the results for errors and contest them. Nevada's parole
statute does not create a liberty interest to sustain a due
process claim. Anselmo, 133 Nev., Adv. Op. 45, 396
P.3d at 850-51. Moreover, NRS 213.1075 specifically provides
that the information gathered by the Board in executing its
duties is privileged and may not be disclosed except in
limited circumstances that Coles has not presented. Insofar
as Coles asserts a right to challenge the assessment, the
Legislature has foreclosed such a right. NRS ...