Tice v. State of New Mexico

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 26, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JERRY TICE,
Plaintiff-Appellant, No. 04-2060
v. District of New Mexico
STATE OF NEW MEXICO; (D.C. No. CIV 02-1579 RB/LFG)
DEPARTMENT OF CORRECTIONS,
Defendants,
and
KAY AUBREY; PROBATION AND
PAROLE, Director,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
In 1997, Jerry Tice pleaded guilty to state charges of aggravated battery and
aggravated burglary in New Mexico. The trial judge sentenced Mr. Tice to a total
of nine years’ imprisonment. Part of the judgment provided that:
FIVE (5) YEARS of the sentence shall be suspended if and only if the
Defendant is accepted into and completes a TWO (2) YEAR residential
treatment program, in which case he shall be placed on probation for the
balance of the sentence. R. Doc. 18, Ex.2.
In custody, Mr. Tice sought acceptance into various treatment centers but
was denied. On March 22, 1999, the Parole Board authorized parole for Mr. Tice,
effective August 6, 1999. The Certificate of Parole stated that Mr. Tice was to be
paroled to Artesia, New Mexico, and he was ordered to report to Officer Leann
Martin of the Artesia Police Department. Officer Martin approved of the plan,
but noted in a memo to the Chairman of the Parole Board that, according to the
condition of judgment, if Mr. Tice were paroled without having already been
accepted into a treatment program, he would be in violation of his probation upon
release. Officer Martin therefore recommended that, if paroled, Mr. Tice be
allowed 30-60 days to find a treatment program and enter into it.
Mr. Tice sought to have the judgment amended to give him time upon his
release to find a treatment program. His motion was denied. Mr. Tice was
released on parole August 6, 1999. When Mr. Tice reported to his probation
officer two days later, he was arrested for failure to pay previous traffic violation
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fines and violating the terms of his release. Mr. Tice was released after this
arrest, apparently due to his efforts to find a treatment program and his family’s
willingness to supervise him. Nevertheless, the probation officer filed a
probation violation report and Mr. Tice was again arrested on August 16, 1999,
after the sentencing judge issued a bench warrant for probation violation.
Following a probation revocation hearing before the same judge who
originally sentenced Mr. Tice, probation was revoked. During the course of the
hearing, the judge indicated that he had wanted Mr. Tice to parole directly into a
treatment center due to concerns about the danger Mr. Tice might pose to the
community. The judge told Mr. Tice, “[Y]ou’re one of the more dangerous
individuals I’ve had in my court . . . I specifically wrote the judgment and
sentence [so that] you aren’t going anywhere except directly to an [Residential
Treatment Center].” R. Doc. 18, Ex. 14, at 10; R&R, at 7. The judge also said
that he “had no clue why the Department of Corrections released you.” Id.
Mr. Tice appealed his conviction for probation violation and the New
Mexico Court of Appeals reversed the order revoking probation on the grounds
that he did not receive a fair warning that immediate entry into a treatment
program was a condition of his probation and that his violation was not wilful.
The court noted, however, that the remedy was not to release Mr. Tice since he
should not have been released in the first place. The court merely “erase[d] from
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[the] Defendant’s record any order stating that he violated the conditions of
probation . . .” R. Doc. 18, Ex. 15, at 6. Mr. Tice was accepted into a treatment
center five months later and paroled directly to that center.
Mr. Tice filed a pro se prisoner civil rights appeal pursuant to 42 U.S.C. §
1983 against the State of New Mexico (“State”), the New Mexico Department of
Corrections (“DOC”), the Director of the Probation and Parole Board, and Kay
Aubrey, his probation officer. After dismissing the State and DOC from the case,
the district court granted summary judgment to the remaining defendants,
adopting the report and recommendation of the magistrate judge. Mr. Tice
appeals that ruling and asks this court to reverse the district court. We review a
district court’s decision to grant summary judgment de novo. Casper v. Comm’r
of Internal Revenue, 805 F.2d 902, 904 (10th Cir. 1986). Generally, issues not
raised before the district court will not be considered on appeal. Trierweiler v.
Croxton and Trench Holding Corp., 90 F.3d 1523, 1538 (10th Cir. 1996).
Mr. Tice is proceeding pro se, and we accordingly construe his brief
liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). Mr. Tice has
stretched our capacity to construe pro se briefs liberally to its fullest extent.
However, we believe that Mr. Tice is making substantially the same argument that
he made to the district court, i.e., that his due process rights were violated when
his probation was revoked and that because of the faulty revocation, he was
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improperly incarcerated for five months. Mr. Tice’s allegation that he was
illegally imprisoned for the 5 months between his arrest on August 16, 1999, and
his entry into a treatment center is without support in the record. Although the
New Mexico Court of Appeals overturned the order revoking probation, the
mistake that court sought to correct was not the revocation of probation but the
release from prison in the first place. Mr. Tice’s argument that he was illegally in
prison during those five months is also undermined by Mr. Tice’s statements at
the probation revocation hearing that “he had tried to prevent his release since he
had not met the necessary conditions.” R. Doc. 18, Ex. 13, at 3-6, Ex. 14, at 2-3,
11-12. Therefore, the revocation of probation did not result in additional prison
time for Mr. Tice; rather, his mistaken release allowed him a few days of
unauthorized freedom which the state trial court magnanimously counted toward
his sentence anyway.
Mr. Tice raises many arguments on appeal that were not raised to the
district court. “Certainly there are circumstances in which a federal appellate
court is justified in resolving an issue not passed on below, as where the proper
resolution is beyond any doubt or where injustice might otherwise result.”
Singleton v. Wulff, 428 U.S. 106, 121 (1976) (internal quotation marks and
citations omitted). However, we find no reason to consider Mr. Tice’s newly-
raised issues.
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The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Mr. Tice’s motion for additional time to file a supplemental reply brief is
DENIED. Mr. Tice’s motion to correct the record is GRANTED. Mr. Tice’s
motion to proceed in forma pauperis is GRANTED. He is reminded that he is
obligated to continue making partial payments toward the balance of his assessed
fees and costs until they are paid in full. All other motions are DENIED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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