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COA: Parole revocation not unconstitutional

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The Indiana Court of Appeals affirmed that the decision to revoke a defendant's parole because he refused to take a polygraph test wasn't based on an impermissible ex post facto application of state statute.

In Charles Receveur v. Edwin Buss, et al., No. 33A04-0907-CV-394, Charles Receveur filed a pro se petition for a writ of habeas corpus claiming he was being illegally detained and that he should be released from incarceration because his parole had been unlawfully revoked. He claimed his parole revocation was based on a constitutionally impermissible ex post facto law.

Receveur was sent to prison in 1993 and was released on parole in 2008. He signed and initialed a document on parole stipulations for sex offenders. One of the conditions required him to participate in periodic polygraph testing, but Receveur never took one. As a result of his failure to comply with parole stipulations, he was re-incarcerated and assessed the balance of his sentence.

The trial court twice denied Receveur's request for release.

Receveur should have filed a petition for post-conviction relief instead of a writ of habeas corpus, the Court of Appeals noted. Receveur didn't claim he was entitled to be released because his sentence fully expired, but that his parole was improperly revoked. As such, his petition should have been treated as one for post-conviction relief, wrote Judge Paul Mathias.

"But regardless of how his petition was styled, we agree with the trial court that the underlying ex post facto claim in Receveur's petition is meritless," he noted.

Receveur claimed the parole stipulations he signed are authorized or required by Indiana Code Section 11-13-3-4(g), which was passed after Receveur had committed his crimes and been convicted. But there's a problem with his argument: Section 4(g) doesn't mention polygraph tests, so his parole couldn't have been revoked based on an impermissible ex post fact application of that section, wrote Judge Mathias.

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