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Appleby’s lawsuit against Corrections and parole board dismissed without prejudice

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SUPERIOR Court Presiding Judge Roberto C. Naraja on Monday  dismissed the lawsuit of Shawn C. Appleby against the officials of the Department of Corrections and the Board of Parole without prejudice, saying his application for a writ of habeas corpus is moot.

Judge Naraja said the court lacks subject matter jurisdiction. But “dismissed without prejudice” means the lawsuit can be refiled.

On Nov. 11, 1996, Appleby was convicted of committing first degree murder and was sentenced to 40 years of imprisonment, with a minimum  term of 10 years to be served.

While serving his  jail term, Appleby escaped from prison, but was apprehended and convicted of a new offense. He was sentenced to three years’ imprisonment  with two years suspended and the sentence was to run consecutively to the 40 years sentence in his murder case.

He was granted parole in Feb. 2011, but it was revoked in Dec. 2012 after he violated its conditions.

Appleby was again paroled on Sept. 9, 2019, but was arrested on March 25, 2020 on a parole  violation warrant. 

The parole board said Appleby “engaged in criminal conduct by committing the crimes of assault and battery and disturbing the peace by hitting a parolee…three times on her side while in the house and then chasing her down the street and pushing her to the ground.”

Appleby then exercised his right to a preliminary hearing to determine probable cause. On April 13, 2020, a hearing officer determined that there was probable cause.

On June 15, 2020, the parole board issued a notice of final revocation hearing and scheduled a hearing for July 10 at the Gov. Pedro P. Tenorio Multi-Purpose Center.

On June 19, 2020, Appleby, represented by Assistant Public Defender Jean Pierre Nogues, filed a complaint in Superior Court naming Department of Corrections Commissioner Wally Villagomez and CNMI Board of Parole Chairman Ramon B. Camacho as defendants.

Appleby wanted the court to stop the revocation hearing  scheduled for July 10, 2020. Appleby also filed a petition for a writ of habeas corpus.

In his ruling, Judge Naraja said when the petition for a writ of habeas corpus was filed, the final revocation hearing had not taken place.

The final revocation order was issued on July 17, 2020.

“If a person suffers a legal wrong because of agency action or adversely affected or aggrieved by agency action, the person is entitled to judicial review of the action within 30 days in the CNMI Superior Court,” the judge said.

“Here, the parole board  agency actions Appleby alleges in his writ are preliminary and not final. In this case the final agency action would be the final revocation order. The actions alleged in this case can only be reviewed, according to 1 CMC §9112(d) when the final revocation order is reviewed.”

Judge Naraja said the final revocation order is not under review in this case and thus, without it, the court lacks subject matter jurisdiction in the case.

The judge said he has no choice but to dismiss without prejudice the current action.

He added, however, that Appleby is free to assert the same allegations regarding the preliminary hearing if he chooses to appeal the final revocation order.

 

 

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