Kevin Lee Davis VS James LeBlanc, Steve Radar, State of Louisiana, Department of Public Safety & Corrections
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCU T NO 2012 CA 0748 KEV1N LEE DAVIS VERSUS JAMES LEBLANC STEVE RADER STATE OF LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTiONS nent Judg Rendered December 21 2012 r x Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 596 633 The Honorable R Michael Caldwell Judge Presiding C C4 kJt Kevin Lee Davis Appellant Plaintiff Jackson Louisiana Pro Se Jonathan R Counsel for Defendant Appellee Baton James M Leblanc State of Vining Rouge Louisiana Louisiana Department of Public Safety and Corrections x t BEFORE CARTER C GUIDRY AND GAIDRY JJ J GAIDRY J This is an appeal of the judicial review by the Nineteenth Judicial District Court of a claim by Appellant Kevin L Davis an inmate of the Louisiana Department of Corrections DOC for being held beyond his time good release date while awaiting approval of his residence plan as a sex offender as required by Louisiana Revised Statutes S 4 574 15 For the following reasons we affirm the court decision to dismiss the Appellant s s petition with prejudice FACTS AND PROCEDURAL HISTORY On December 15 1998 Mr Davis pled guilty to four 4 counts of aggravated oral sexual battery and four 4 counts of molestation of a juvenile for which he was sentenced to a total of twenty 22 years at two hard labor The sentence was made pursuant to the guidelines of La R S 542 15 which required him to register as a sex offender upon his release Mr Davis was then remanded to DOC On December 18 2000 Mr Davis was approved to become eligible for good computation of his sentence time at the rate of thirty 30 days for every thirty 30 days spent in actual custody On or about May 23 2010 Mr Davis filed a request for administrative remedy at Dixon Correctional Institute where he was housed In the request Mr Davis alleged to be held beyond his good release time date which he claimed was October 22 2009 in violation of his constitutional rights and La R 15 S 571 4which governs the forfeiture of diminution of sentence His request for relief was to be released in accordance to the law DOC first step response to his request was a s denial on July 1 2010 the given reason being that as a sex offender he could This Subsection was redesignated as Louisiana Revised Statutes 241 of 2010 Acts 2 E 3 4 574 15 by Act not be released until he had an approved residence plan Mr Davis then applied for a step response his reason being that DOC was second applying La R 15 which did not exist at the time of his S 574 S 4 sentencing DOC second step response was also a denial for the same s but included Kozlowicz reason Corrections Dept of Public Safety v 1806 2008 La App 1 Cir 39 So 1000 to support the contenrion 09 27 3d that Mr Davis extended detention was not illegal s After exhausting all his administrative remedies Mr Davis filed a petition for judicial review with the 19 JDC on November 15 2010 Commissioner Rachel Margan filed a report on June 22 2011 recommending dismissal of Mr Davis spetition stating that the issue of the petition has already been addressed and determined by Kozlowicz The court adopted the reasons of the Commissioner sreport and dismissed Mr s Davis petition with prejudice on September 7 201 L Mr Davis filed the instant pro se appeal on September 23 2011 DISCUSSION The court is correct that the Kozlowicz case deals squarely with the issue raised by Mr Davis and we find no reason to divert from its reasoning We therefore adopt the following language We note the crux of petitioner challenge of La s S R S 4 574 15 is dependent on a property and liberty interest created by the eaming of good time credit The petitioner s allegations of unconstitutionality are based on this belief that he has a constitutionally protected interest in good time that he earned and that due process requires that he be afforded a hearing before the Department can deprive him of it In considering petitioner claims of unconstitutionaliry s we begin with the well principle that all statutory settled enactments are presumed to be constitutional The party challenging the constitutionality of a statute bears the burden of proving the statute to be unconstitutional Statutes are presumed valid and their constitutionality should be upheld whenever possible 3 We recognize that the petitioner was not released on the date that the Department smaster record indicated he could have been discharged pursuant to diminution of sentence However this was not due to an action or omission by the Department resulting in a violation of due process because it was a deprivation without a hearing As has already been established the reason petitioner was not released on his good time discharge date is because he did not have an approved residence plan as required by La R 15 The fact S 574 S 4 that he has a constitutionally protected interest in good time does not deprive the legislature of the right to enact legislation that possibly has the effect of impacting the statutorily created interest Further the fact that the Deparhnent may not deprive a prisoner of good time without a hearing does not have any legal relevance to the situation here because the Department did nothing to deprive the prisoner of his good time Rather the Department was prohibited by statute from releasing the prisoner Kozlowicz 9 So3d at 1005 citations omitted 1006 Using the aforesaid rationale we affirm the 19 JDC judgment and s dismiss Mr s Davis petition with prejudice assessed to the Appellant Kevin Davis AFFIRMED 4 Costs of this appeal are
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