Smith v. Belleque

Filing 26

Opinion and Order: Petitioner's Motion for leave to file Pro se addendum to Petitioner's Response 25 is GRANTED. The court has considered the attachment thereto, but for the reasons identified above (see formal opinion and order), the Pe tition for Writ of Habeas Corpus 1 is DENIED. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Ordered by Judge Owen M. Panner. (dkj)

FILED'09DEC 1110:56uSDC-ORN

I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON ROLAND LEE SMITH, C i v i l No. 09-300-PA Petitioner,
v.

BRIAN BELLEQUE, O P I N I O N AND ORDER Respondent. Roland Lee Smith #5540051 Oregon State Penitentiary 2605 State Street S a l e m , OR 9 7 3 1 0 Petitioner, Pro Se J o h n R. K r o g e r Attorney General L e s t e r R. H u n t s i n g e r Assistant Attorney General Department of Justice 1 1 6 2 C o u r t S t r e e t NE Salem, Oregon 97310 Attorneys for Respondent

1 - O P I N I O N AND ORDER

PANNER, D i s t r i c t J u d g e . Peti tioner U.S.C.
§

brings

this

habeas

corpus

case

pursuant

to

28

2254 in which he seeks to challenge the l e g a l i t y of his incarceration by the following Board the of deferral Parole of and his parole

continued release

date

Oregon

Post-Prison

Supervision.

For the reasons which follow, the Petition for Writ

of Habeas Corpus (#1) i s denied.
BACKGROUND

In two separate indictments from 1986,

the

Douglas County

Grand Jury indicted p e t i t i o n e r for At tempted Rape in the F i r s t Degree, Assault in the Second Degree, and Sodomy i n the First

D e g r e e f o r c r i m e s c o m m i t t e d a g a i n s t t w o women i n 1 9 8 3 a n d 1 9 8 5 , respectively. Respondent's Exhibit 101. Petitioner ultimately

entered g u i l t y p l e a s t o Sodomy i n the F i r s t Degree, Attempted Rape in the First Degree, and Assault in the Second Degree and the t r i a l court r e f e r r e d p e t i t i o n e r to the Oregon S t a t e Hospital where he was diagnosed as having "a severe personality disorder; namely a mixed personality disorder with antisocial and passive-aggressive Respondent's

features, which renters future criminal acts likely." Exhibit 110, p. 8.

The t r i a l court sentenced p e t i t i o n e r as a dangerous offender and a sexually dangerous person to consecutive indeterminate prison t e r m s t o t a l i n g 60 y e a r s w i t h a m i n i m u m s e n t e n c e o f 3 0 y e a r s .

2 - OPINION AND ORDER

Respondent's E x h i b i t 1 0 1 . sentence on d i r e c t review. The ("Board") 2000. Oregon Board

The Oregon Court of Appeals affirmed the
S t a t e v . S m i t h , 84 O r . A p p . 4 8 7 ( 1 9 8 7 ) .

of

Parole

and

Post-Prison

Supervision

initially set a parole consideration hearing date for

Following the 2000 hearing, the Board deferred p e t i t i o n e r ' s At the subsequent 2002 hearing, the Board I t appears t h a t the 2000 Board's determination,

r e l e a s e f o r 24 months.

again d e f e r r e d h i s r e l e a s e f o r 24 months. and 2002 deferrals were based on the

following psychological reviews,

that p l a i n t i f f had a mental or

emotional disturbance rendering him a danger to the community i f released. Respondent's Exhibits 115, 116. a third psychological evaluation, the Board

Following

concluded a t i t s 2004 hearing t h a t p e t i t i o n e r suffered from "mental or emotional disturbance, deficiency, condition, or disorder

predisposing offender to the commission of any crime to a degree rendering the offender a danger to the health or safety of others; therefore
remission

the
and

condition which made
inmate does

inmate
to

dangerous
remain a

is

not

in

continue

danger."

Respondent's Exhibit 108, p. 2. deferred petitioner's

As a r e s u l t , t h e B o a r d o n c e a g a i n another 24 months. Although

release for

p e t i t i o n e r requested administrative review, r e l i e f was denied. Ordinarily, an inmate in p e t i t i o n e r ' s position would appeal

t h e B o a r d ' s d e c i s i o n t o t h e O r e g o n C o u r t o f A p p e a l s p u r s u a n t t o ORS 144.335. Peti t i o n e r did not do so, and instead filed a state

3 - OPINION AND ORDER

habeas c o r p u s p e t i t i o n i n U m a t i l l a C o u n t y o n M a r c h 1 6 , 2 0 0 5 .

The

Umatilla County Circuit Court denied r e l i e f on the p e t i t i o n because " P l a i n t i f f had timely remedy in the form of judicial review under ORS 144.225. Habeas corpus relief cannot be pursued."

Respondent's Exhibit 132.

The Oregon Court of Appeals summarily

affirmed the lower c o u r t ' s decision, and the Oregon Supreme Court denied review. Respondent's Exhibits 135, 137, 138. but

After the Circuit Court denied r e l i e f on his p e t i t i o n , before filing his Appellant's Brief in that matter ,

petitioner

f i l e d a second habeas corpus action in Umatilla County on or about September 19, 2005. The State moved to dismiss the second p e t i t i o n and the Circuit Court granted the

for failure to state a claim,

motion following a hearing during which i t concluded that "[t]here is no basis for habeas 202, corpus. p. 12. It will be dismissed." of Appeals

Respondent's

Exhibit

The Oregon Court

granted the S t a t e ' s motion for summary affirmance, and the Oregon Supreme Court denied review. Respondent's Exhibits 207, 208.
§

P e t i t i o n e r f i l e d t h i s 28 U.S.C. 17, 2009.

2254 habeas case on March

At the heart of p e t i t i o n e r ' s case i s his complaint that

the Board deferred his parole release date based on a psychological condition for which i t refuses to provide treatment despite being s t a t u t o r i l y obligated to do so. relief on this claim because Respondent asks the court to deny it was not fairly presented to

Oregon's state courts, and because i t lacks merit.

4 - OPINION AND ORDER

DISCUSSION A habeas petitioner must exhaust his claims by fairly

presenting them to the

state's highest court,

either through a federal court

direct appeal or collateral proceedings, will consider the merits of those claims. 509, 519 (1982). "As a general r u l e ,

before a

Rose v. Lundy, 455 U.S.

a petitioner satisfies the

exhaustion requirement by f a i r l y presenting the federal claim to the appropriate state courts. state courts, thereby . in the manner required by the state courts a meaningful Casey v.

'affording the

opportuni ty to consider allegations of legal error.'" Moore, 386 F.3d 896, Hillery, 915-916 (9th Cir. 2004) (1986)).

(quoting Vasquez v.

474 U.S. 254, 257,

If a habeas litigant failed

to present his claims to the state courts in a procedural context ln which the merits of the claims were actually considered, the

claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. v. Peoples, 489 U.S. 346, 351 (1989). A p e t i t i o n e r i s deemed to have "procedurally defaulted" his claim i f he failed to comply with a state procedural rule, or Castille

failed to raise the claim at the state level at all.

Edwards v.

Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a a federal court will not review the claim

claim in state court,

unless the p e t i t i o n e r shows "cause and prejudice" for the f a i l u r e 5 - O P I N I O N AND ORDER

to p r e s e n t t h e c o n s t i t u t i o n a l i s s u e t o t h e s t a t e c o u r t , o r m a k e s a colorable showing of actual innocence. Gray v. Netherland, 518

u.s.

152, 162 (1996); Sawyer v. Whitley, 505 477 U.S. 478, 485 (1986).

u.s.

333, 337 (1992);

Murray v. Carrier,

As n o t e d i n t h e B a c k g r o u n d o f t h i s O p i n i o n , p e t i t i o n e r f i l e d a s t a t e habeas corpus action which was dismissed by the t r i a l court based on the f a c t t h a t habeas corpus was not a proper remedy. In

this respect, the claims petitioner sought to present during that habeas corpus proceeding were not presented in a procedural context in which the merits were actually considered. Because the Circuit

Court determined as a matter of state law that the claims were not properly raised, they were not preserved for appeal and could not have been " f a i r l y presented" to the Oregon Supreme Court. 5.45(1) S e e ORAP

(only claims properly preserved in the t r i a l court will be ORAP 9 . 2 0 ( 2 ) (only claims which were properly

heard on appeal);

before the Oregon Court of Appeals are eligible for review by the Oregon Supreme Court) . While p e t i t i o n e r may d i s a g r e e with the s t a t e habeas c o u r t ' s interpretation of state law as i t pertains to which kinds of claims may be r a i s e d i n a s t a t e habeas p e t i t i o n i n Oregon, federalism decision. prevent this court from interfering comity and such a

with

See Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000)

("a federal court i s bound by the state court's interpretations of s t a t e law. ") ( c i t i n g Wainwright v. Goode, 464

u.s.

7 8 , 84 ( 1 9 8 3 ) ) ;

6 - OPINION AND ORDER

see a l s o P e l t i e r v . W r i g h t , 1 5 F . 3 d 8 6 0 , 8 6 2 ( 9 t h C i r . 1 9 9 4 )

(state
v.

courts
McGuire,

are 502

the

ultimate 62,

expositors (1991)

of

state

law);

Estelle

u.s.

67-68

("[W]e reemphasize that i t i s

not the province of a federal habeas court to reexamine state-court determinations on s t a t e - l a w questions. " ) ; Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) ("A s t a t e c o u r t has the l a s t word on the ( c i t i n g McSherry v. Block, 880 F.2d

interpretation of state law.") 1049, 1052 (9th Cir. 1989)).

It is therefore clear that petitioner

failed to f a i r l y present any claims to the Oregon Supreme Court for a merits review during his f i r s t state habeas case. With respect to p e t i t i o n e r ' s second state habeas proceedings in Umatilla County, the Umatilla County Circuit Court granted the S t a t e ' s motion seeking to dismiss the p e t i t i o n on the basis that habeas corpus was not petitioner's proper remedy. As noted

previously, the Circuit Court concluded t h a t " [ t ] h e r e i s no basis for habeas corpus.
II

Respondent's

Exhibit

202,

p.

12.

When

p e t i t i o n e r appealed t h i s decision, h i s a p p e l l a t e documents make i t clear that he, their merits. too, f e l t that his claims were not considered on he argued that the Oregon Supreme

Specifically,

Court should "correct the t r i a l court error in dismissing this petition" and argued that the Oregon Court of Appeals, by granting summary affirmance,
II

incorrectly failed

[to]

allow plaintiff to

pursue habeas relief to review the unlawfulness of his sentence

7 - OPINION AND ORDER

under t h e E i g h t h A m e n d m e n t . maintained that Oregon filed. Supreme "habeas Court
Id at 2.

,,1

Respondent's Exhibit, pp. 2-3. the correct process" a habeas

He

is to

and urged the to be

"permit

petition

"

I t i s clear from this procedural history

that the Oregon s t a t e courts did not pass upon the merits of his Eighth Amendment claim. Put another way, had p e t i t i o n e r prevailed

at any state appellate level, the Oregon Court of Appeals or the Oregon Supreme Court would have directed the Circuit Court to allow the habeas action to go forward on i t s merits. As a r e s u l t , t h e r e

are no claims e l i g i b l e for federal habeas corpus review. Even assuming p e t i t i o n e r had presented h i s Eighth Amendment claim to the Oregon Supreme Court in a procedural context in which i t s merits were a c t u a l l y considered (such as i n a mandamus action pursuant to ORS 34.110), petitioner would nevertheless not be

entitled to relief.

In order to prevail in a federal habeas corpus

action, a petitioner must demonstrate that a state court decision was: (1) " c o n t r a r y t o , or involved an unreasonable a p p l i c a t i o n o f ,

clearly established Federal law, as determined by the Supreme Court of the United States;" or
(2)

"based

on

an

unreasonable

determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.
§

2254 (d).

This is a

s t r i c t requirement which c a l l s for a Supreme Court decision which

1 Following his habeas corpus proceedings in the t r i a l court, petitioner limited his claim to that of cruel and unusual punishment, and dropped his due process claim.

8 - OPINION AND ORDER

squarely a d d r e s s e s t h e i s s u e p r e s e n t e d . 742, 754-55 (9th Cir. 2009).

Moses v.

Payne,

555 F.3d

The court i s unaware of any u . s .

Supreme Court precedent which would clearly advise a s t a t e court that an Eighth Amendment violation occurs where, despite an

otherwise valid sentence,

an inmate i s not paroled prior to his

sentence expiration where he i s not provided with programming to enable him to perform more favorably on psychological examinations. In fact, in the due process context, the Supreme Court has clearly held t h a t there i s no c o n s t i t u t i o n a l r i g h t to parole before the expiration
Inmates,

of

a u.S.

valid
1,

sentence. (1979).

Greenholz

v.

Nebraska

Penal

442

7

For a l l of the aforementioned

reasons, r e l i e f on the Petition i s denied.
CONCLUSION

Peti tioner' s

Motion

for

Leave

to

File

Pro

Se Addendum t o

P e t i t i o n e r ' s R e s p o n s e ( # 2 5 ) i s GRANTED.

The court has considered

the attachment thereto, but for the reasons identified above, the Petition for Writ of Habeas Corpus (#1) is DENIED. The court

declines to issue a C e r t i f i c a t e of Appealability on the basis t h a t

p e t i t i o n e r has not made a s u b s t a n t i a l showing of the denial of a c o n s t i t u t i o n a l r i g h t pursuant t o 28 U.S.C. I T I S SO ORDERED. DATED t h i s
§

2253 (c) (2).

~

day

Owen M. P a n n e r United States District Judge 9 - OPINION AND ORDER