Grimm v. Nooth

Filing 30

OPINION AND ORDER: The Court DENIES the Petition for Writ of Habeas Corpus 2 and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c) (2). (See 9 page opinion for more information) Signed on 4/7/15 by Judge Anna J. Brown. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON J, GRIMM,
Civil No. 2:14-cv-00392-BR
Petitioner,
OPINION AND ORDER

v.
MARK NOOTH,
Respondent.
ANTHONY D. BORNSTEIN
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
NICK M. KALLSTROM
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent

1 - OPINION AND ORDER -

BROWN, Judge.
Petitioner,
Institution,
U.S.C.

§

an

inmate

brings

2254.

this

at

habeas

the

Snake

corpus

River

Correctional

action pursuant

to

28

For the reasons that follow, the Court DENIES the

Petition for Writ of Habeas Corpus (#2) .
BACKGROUND

On

June

26,

2000,

Petitioner

was

County for Arson in the First Degree.
Petitioner was a

convicted

in Multnomah

The trial judge determined

Dangerous Offender under Oregon statutes and

imposed an indeterminate sentence of 30 years of imprisonment
(with

a

48-month

modification

by

determinate

the

Oregon

term),

Board

of

subject

to

review

Parole

and

and

Post-Prison

Supervision (the ''Board'').
Petitioner was released to post-prison supervision in 2007,
and re-incarcerated in 2008 upon violating the conditions of his
post-prison supervision release.

After the

revocation of his

post-prison supervision release, the Board appointed psychologists
to evaluate Petitioner.

A psychologist who evaluated Petitioner

in 2008 found he had a severe antisocial personality disorder and
was not amenable to community-based supervision.
evaluated again in 2009.

Petitioner was

The psychologist who conducted the 2009

evaluation diagnosed Petitioner with an antisocial personality
disorder

and

a

history

2 - OPINION AND ORDER -

of

attention

deficit

hyperactivity

disorder, and concluded Petitioner would remain a danger to the
community if released.
On January 6,

2010,

the

Board issued an Order deferring

Petitioner's parole consideration date for 48 months.
103, pp. 161-63.

Resp. Exh.

The Board based its decision upon a finding that

[T]he
[Petitioner]
has
a
mental
or
emotional
disturbance,
deficiency,
condition,
or
disorder
predisposing [Petitioner] to the commission of any crime
to a degree rendering [Petitioner] a danger to the
health or safety of others; therefore, the condition
which made [Petitioner] dangerous is not in remission
and [Petitioner] does continue to remain a danger.
Resp. Exh. 103, p. 162.
Petitioner sought administrative review,
Board

denied

disturbance"

parole
and that

Disabilities Act

"solely

upon

the denial

("ADA") .

Resp.

my

arguing that the

mental

or

emotional

violated the Americans
Exh.

103,

p.

166.

with

The Board

denied relief, explaining part:
[T]he Board finds your allegation contains a mistaken
premise:
the Board's finding was that your mental or
emotional
disturbance,
deficiency,
condition,
or
disorder predisposes you to the commission of any crime
to a degree rendering you a danger to the health or
safety of others.
The deferral of your parole
consideration date was based on your dangerousness, not
on your condition or disorder.
Resp. Exh. 103, pp. 180-81.
Petitioner then
Court of Appeals.

sought

judicial

Resp. Exh. 102.

review before the Oregon

Pe ti ti oner ass·erted that the

Board's order deferring his parole consideration date violated

3 - OPINION AND ORDER -

both state law and the ADA

11

[b) ecause an equally dangerous yet

non-disabled offender would be released on parole while petitioner
would not be released because of his disabling mental illness[.)"
Resp. Exh. 104, p. 28.

In a written opinion, the Oregon Court of

Appeals rejected Petitioner's discrimination claim under state law
and the ADA, explaining as follows:
We briefly turn to petitioner's argument that deferring
parole consideration based on a disability violates his
rights under the Americans with Disabilities Act (ADA),
42 USC sections 12101 to 12213, and ORS 659A.142 (5) (1),
both of which make it unlawful for government programs
to discriminate against a person on the basis of
disability.
In the present proceeding, the board
rejected petitioner's contentions, indicating that its
"deferral of [petitioner's) parole consideration date
was based on [his) dangerousness, not on [his) condition
or disorder."
That reasoning is consistent with our
conclusion in McCline v. Board of Parole, 205 Or. App.
144, 148, 133 P.3d 349, rev. den., 342 Or. 46, 148 P.3d
915 (2006), that the board's deferral of parole release
based on a finding that an inmate had a severe emotional
disturbance and that he posed a threat to the health or
safety
of
the
community
did
not
violate
the
Rehabilitation Act of 1973, because it was based on both
his
"severe
emotional
disturbance
and
his
dangerousness. 11
(Emphasis in original,)
Pe ti ti oner
points to nothing in either the ADA, ORS 659A.142, or
case interpreting those statutes, that would suggest
that the board is obliged to release a dangerous inmate
into the community simply because the dangerousness is
related to, or the result of, a disability.

Grimm v. Board of Parole and Post-Prison Supervision, 258 Or. App.
595, 596-98, 310 P.3d 736 (2013)

(footnote omitted).

Petitioner

filed a petition for review with the Oregon Supreme Court, which
was denied.

Grimm v. Board of Parole and Post-Prison Supervision,

354 Or. 699 319 P.3d 696 (2014).
4 - OPINION AND ORDER -

On March 14, 2014, Petitioner filed his Petition for Writ of
Habeas

Corpus

Pursuant

to

28

U.S.C.

§

2254

in

this

Court.

Petitioner alleges two grounds for relief:
Ground One:
The Board violated a dangerous offender's
rights under the ADA and ORS 659A.142 (5) (a) by deferring
parole consideration on the grounds that petitioner
suffers from "a mental or emotional disturbance,
deficiency, condition, or disorder predisposing him to
the commission of any crime to a degree rendering him a
danger to the health and safety of others,'' the board
has effectively denied petitioner the right to a
government program (parole) and discriminated against
him based on a mental disability.
Ground Two:
No Police reports found to support the
violation that petitioner received.
Respondent argues the state court decision denying relief on
the claim alleged in Ground One is entitled to deference, and that
Petitioner procedurally defaulted the claim alleged in Ground Two.
In his counseled Brief in Support of Petition for Writ of Habeas
Corpus, Petitioner addresses only the claim alleged in Ground One.
DISCUSSION
I.

Ground One - Alleged ADA Violation'
If a

state court

has

ruled on the merits

of a

claim,

a

federal court may not grant habeas corpus relief under § 2254

1

To the extent Petitioner's Ground One also alleges the Board
violated state law, such a claim is not cognizable in a federal
habeas corpus proceeding under§ 2254. See Estelle v. McGuire, 502
U.S. 62, 67 (1991) ("federal habeas corpus relief does not lie for
errors of state law"); Mendez v. Small, 298 F.3d 1154, 1158 (9th
Cir. 2002("[a) state court has the last work on the interpretation
of state law") .
5 - OPINION AND ORDER -

unless the state adjudication "resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States," or was based on an unreasonable determination of
the facts.

28 U.S.C.

§

2254(d); Harrington v. Richter, 562 U.S.

86, 131 S.Ct. 770, 785-86 (2011).

When applying these standards,

the federal court should review the "last reasoned decision" by a
state court that addressed the issue.

Robinson v.

360

Ignacio,

F.3d 1044, 1055 (9th Cir. 2004).
Title

II

of

the

ADA

prohibits

a

public

discriminating against a qualified individual on
disability.
cert.

denied,

Yeskey,

from

the basis of

Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002),

538 U.S.

921

(2003).

prisons and parole decisions.
v.

entity

524 U.S.

206,

The ADA applies

to state

Pennsylvania Dept. of Corrections

208-13

(1998);

Thompson,

295 F.3d.

at

8 96-99.
The ADA
board

does not, however, "categorically bar a state parole

from making

an

individualized assessment

of

the

future

dangerousness of an inmate by taking into account the inmate's
disability."

Thompson,

295 F.3d at 898 n: 4.

Thus, a "person's

disability that leads one to a propensity to commit crime may
certainly be

relevant

in

qualified for parole."

Id.

6 - OPINION AND ORDER -

assessing

whether

the

individual

is

Accordingly, this Court has held that

the denial of parole on grounds identical to those identified by
Petitioner does not violate the ADA.

See, e.g., Roberts v. Nooth,

2012 WL 5036475 at *3 (D. Or., Oct. 17, 2012); Cheever v. Nooth,
2012 WL 1114306 at

*3-4

(D.

Or.

Feb.

1,

2012),

findings

and

recommendation adopted by 2012 WL 1114117 (D. Or., April 3, 2012).

The

Board

emotional

denied parole

disturbance,

predisposes

[him)

because

deficiency,

Petitioner's
condition,

"mental

or

disorder

to the commission of any crime to a degree

rendering [him) a danger to the health or safety of others."
103, p. 162.
Board

did

or

Exh.

As the Oregon Court of Appeals correctly noted, the

not

deny

disability per se,

Petitioner's

parole

based

on

his

mental

but instead based on a conclusion that the

mental disability renders him a danger to the community.

The

Board reached this conclusion based upon the 2009 psychological
evaluation, which was permissible under the ADA.

See Thompson,

295 F.3d at 898, n. 4 ("[a) person's disability that leads one to
a

propensity

to

commit

crime

may

certainly

be

relevant

in

assessing whether that individual is qualified for parole").
The Oregon courts' rejection of Petitioner's ADA claim was
not

contrary

to

or

an

established federal law.

unreasonable

7 - OPINION AND ORDER -

of

clearly

Accordingly, Petitioner is not entitled

to habeas corpus relief under §
Ground One.

application

2254 on the claim alleged in

II.

Ground Two - Alleged Lack of Police Reports
As noted,

Petitioner does not address the claim alleged in

Ground Two in his Brief in Support.

A petitioner seeking federal

habeas relief bears the burden of showing the court he is entitled
to relief.

Woodford v. Visciotti,

v. Woodford,

545

U.S.

384 F.3d 628,

1165

(2005).

638

537 U.S. 19, 24

(9th Cir.

Pursuant

to

28

(2002); Davis

2004),

cert. dismissed

U.S.C.

§

2248,

"[t]he

allegations of a return to the writ of habeas corpus or of an
answer to an order to show cause in a habeas corpus proceeding, if
not traversed, shall be accepted as true except to the extent that
the judge finds from the evidence that they are not true.•
The Court has reviewed the record and finds Petitioner has
not met his burden of showing he is entitled to relief on the
claim alleged in Ground Two which is not argued in his memorandum.
The

Court's

review

of

the

state

proceedings

confirms

that

Petitioner procedurally defaulted this claim, and the Court finds
no evidence of cause and prejudice or a fundamental miscarriage of
justice to excuse the procedural default.
CONCLUSION
For these reasons, the Court DENIES the Petition for Writ of
Habeas Corpus

(#2) and DISMISSES this action.

8 - OPINION AND ORDER -

The Court DENIES a certificate of appealability as Petitioner
has

not

made

a

substantial

constitutional right.

showing

of

the

denial

See 28 U.S.C. § 2253(c) (2).

IT IS SO ORDERED.
DATED this

day of April, 2015.

~

United States District Judge

9 - OPINION AND ORDER -

of

a