Smith v. Myrick
Filing
42
OPINION AND ORDER: The Court DENIES the Amended Petition for Writ of Habeas Corpus 83 in Case No. 3:05-cv-01900-BR and the Petition for Writ of Habeas Corpus 1 in Case No. 3:15-cv-00738-BR, and DISMISSES these actions. (See 36 page opinion for more information.) Signed on 9/12/17 by Judge Anna J. Brown. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ARLEN PORTER SMITH,
Civil No. 3:05-cv-01900-BR
Petitioner,
OPINION AND ORDER
v.
JEAN HILL,
Respondent.
ARLEN PORTER SMITH,
Civil No. 2:15-cv-00738-BR
Petitioner,
OPINION AND ORDER
v.
JOHN MYRICK,
Respondent,
TONI L. MORO
19 S. Orange Street
Medford, OR 97501
Attorney for Petitioner
1 - OPINION AND ORDER -
ELLEN F. ROSENBLUM
Attorney General
KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondents
BROWN, Judge.
Petitioner,
Institution,
an
inmate
at
the
Snake
River
Correctional
brings these habeas corpus proceedings challenging
decisions of the Oregon Board of Parole and Post-Prison Supervision
(the ''Board'').
Because the cases are procedurally intertwined and
share common background facts, the Court addresses both cases in a
single Opinion and Order to be filed separately in each case.
the reasons that follow,
Corpus (ECF No. 83)
For
the Amended Petition for Writ of Habeas
in Case No. 3:05-cv-01900-BR and the Petition
for Writ of Habeas Corpus (ECF No. 1) in Case No. 2:15-cv-00738-BR
are DENIED.
BACKGROUND
I.
Proceedings Before the Board and the State Courts
A.
The Board's Decision to Deny Restoration of Good Time
Credits for the 1991 Jackson County Sentence
In August 1981, a Jackson County judge sentenced Petitioner on
convictions for three counts of Burglary in the First Degree to an
indeterminate term of 20 years in prison, with a 90-month minimum.'
1
In October 1991, a Polk County judge sentenced Petitioner to
a 20-year indeterminate term for Burglary in the First Degree. The
2 - OPINION AND ORDER -
On January 19, 1984,
Petitioner was released on parole from his
1981 Jackson County sentence.
On February 10, 1984, Petitioner was
arrested in Marion County on new criminal charges.
1984,
On March 6,
the Board revoked Petitioner's parole on the 1981 Jackson
County
sentence
based
on
his
new criminal
activity
in Marion
County.
Petitioner was ultimately convicted on December 10, 1984, of
the 1984 Marion County offenses.
In particular,
Petitioner was
convicted of two counts of Robbery in the First Degree and one
count each of Unauthorized Use of a Vehicle, Kidnaping in the First
Degree, and Attempted Kidnaping in the First Degree.
The Marion
County trial judge sentenced Petitioner as a dangerous offender to
an additional 105 years in prison, to run consecutive to the 1981
Jackson County sentence.
At the time Petitioner's parole on the 1981 Jackson County
sentence was revoked on March 6,
1984,
Oregon law provided as
follows:
(2) When a paroled inmate violates any conditions of
parole, no deduction from the term of sentence, as
provided in subsection (1) of this section [providing for
the deduction of time from an inmate's sentence for good
time], shall be made for service by such inmate in the
penal or correctional institution prior to acceptance and
Polk County
proceedings.
sentence,
however,
3 - OPINION AND ORDER -
is
not
pertinent
to
these
release on parole, except when authorized by the State
Board of Parole upon recommendation of the superintendent
thereof.
Or. Rev. Stat. § 421.120(2)
(1983)
(emphasis added).
The relevant administrative rules then in effect gave the
Board unfettered discretion whether or not to restore forfeited
good time credit based on the recommendation of the superintendent.
Or.
R.
Admin.
P.
291-100-018
(effective
11-4-83)
provided,
pertinent part:
3.
Credit to Parole Violator
Prior to Parole Release
for
Good
Time
Earned
a.
Upon return from parole, designated staff in
the Corrections Division facility to which the
parolee is returned, will as quickly as
possible
prepare
a
report
for
the
superintendent's signature which will be
forwarded by the superintendent to the Parole
Board Chairperson with a recommendation for
restoration or non-restoration of Good Time
credits accrued by the inmate prior to his/her
release from parole.
b.
A favorable recommendation will be made if a
review of the inmate's file reflects he/she
would more than likely have been credited with
the Good Time had the individual not been
paroled.
c.
It is the prerogative of the Parole Board to
approve or disapprove all recommendations.
(Emphasis added.)
(2)
Under Or. R. Admin. P. 255-75-085 (1979):
At the future disposition hearing,
(a)
the Board may:
Set a new parole release date according to the
guidelines in rule 255-75-085 and choose not
to give credit for statutory good time earned
until suspension of parole; or
4 - OPINION AND ORDER -
in
(b)
Deny further parole consideration, according
to the guidelines in rule 255-75-090, and
return all or part of the statutory good time
to which the prisoner is entitled.
(Emphasis added) .
In
July
hearing"
1984,
and,
the
Board
based upon a
conducted
a
"future
disposition
finding of new criminal conduct
in
Marion County in February 1984, the Board ordered that Petitioner
be re-paroled on his 1981 Jackson County sentence on February 1,
1985, at which time the 1984 Marion County sentence would commence.
The Board's order did not address Petitioner's good time credits.
Shortly after
Pe ti ti oner's
return
to
prison
in
1984,
the
institution superintendent recommended restoration of 334 days of
previously earned good time credit toward Petitioner's 1981 Jackson
County sentence.
It appears from the record that the Board was not
aware of this recommendation and, in any event, the Board did not
act on it for some years.
In
January
2001,
before
he
was
aware
of
the
1984
recommendation for restoration of good time credit for the 1981
Jackson
County
alternative
requiring
conviction,
writ
the
of mandamus
Petitioner
in
superintendent to
state
filed
court
perform the
a
petition
seeking
an
for
order
statutory duty of
making a recommendation to the Board on the restoration of good
time credits.
The trial court dismissed the mandamus proceeding on
the state's motion.
Appeals
Petitioner appealed, but the Oregon Court of
affirmed without
opinion and the
5 - OPINION AND ORDER -
Oregon Supreme
Court
Smith
denied review.
v.
Hill,
195 Or.
App.
546,
99 P. 3d 1239
(2004), rev. denied, 338 Or. 583, 114 P.3d 504 (2005).
While the appeal from the dismissal of the mandamus petition
was pending,
the superintendent in 2003 issued a
recommendation that
new,
contrary
Petitioner's good time credits on his 1981
Jackson County conviction not be restored.
On June 16, 2003, the
Board denied the restoration of good time credits in Board Action
Form ("BAF") #7.
Petitioner sought administrative review, but on
December 19, 2006, the Board issued Administrative Review Response
("ARR") #3 denying Petitioner's request.
Petitioner sought judicial review of the Board's decision set
forth in BAF #7.
As a result of the judical review of BAF #7 and
the discovery of the 1984 DOC memorandum recommending reinstatement
of
Petitioner's
good
time
credits,
the
Oregon
appellate
commissioner granted a Board motion to establish a new due date for
a new board order to address the 1984 DOC memorandum.
The Board
scheduled an administrative review hearing for December 10, 2008,
to consider the 1984 memorandum recommending restoration, and to
decide whether Petitioner was entitled to the restoration of good
time credits.
The Board described the purpose of the hearing in
BAF #14:
The purpose of the hearing is to allow offender to
present any information that he feels is relevant to
whether the Board should return all or part of his
statutory good time credits and to give the Board the
opportunity to deliberate based on a complete record.
6 - OPINION AND ORDER -
After the hearing, the Board will issue a new BAF
regarding restoration of offender's good time credits,
which will be subject to administrative and judicial
review in the normal course.
For convenience, the board sets out the applicable
standard in this order:
(2)
At the future disposition hearing, the Board
may:
(a)
Set a new parole release date according
to the guidelines in the rule 255-75-085 and
choose not to give credit for statutory good
time earned until suspension of parole; or
(b)
Deny further parole consideration,
according to the guidelines in rule 255-75090, and return all or part of the statutory
good time to which the prisoner is entitled.
To recapitulate, the AR hearing is solely for the Board
to consider the 1984 memorandum, as clarified by OISC,
and to apply the standard set out [in] OAR 255-75-085
(permanent effective February 1, 1979) [sic].
Resp. Exh. 128, pp. 62-63.
Petitioner appeared at the "administrative review" hearing on
December 10, 2008, accompanied by counsel.
Following the hearing,
the Board denied restoration of the previously forfeited good time
credits in BAF #15, stating:
As explained more fully in Board Action Form (BAF) #14,
dated September 15, 2008, the Board scheduled this
administrative review (AR) hearing to make a decision on
the recently received 1984 memorandum regarding the
restoration of offender's good time credit (with the
added clarification that 369 days are available for
restoration) .
After reviewing the entire record, which includes a
positive recommendation of forfeited goodtime credits
from 1984,
and applying OAR 255-75-085 {permanent
effective February 1, 197 9) as well as all applicable
rules and laws, the Board unanimously denies restoration
of forfeited good time credits.
7 - OPINION AND ORDER -
Resp. Exh. 128, p. 491.
Petitioner sought judicial review of BAF
#15, but the Oregon Court of Appeals affirmed without opinion and
the Oregon Supreme Court denied review.
Smith v.
245 Or.
Hill,
App. 504, 260 P.3d 856 (2011), rev. denied, 352 Or. 107, 284 P.3d
485
(2012).
As a result,
Petitioner did not receive additional
good time credit against his 1981 Jackson County sentence.
B.
The 2001 Board Decision Deferring Release on the 1984
Marion County Sentence - Casa No. 3:05-cv-1900-BR
Meanwhile,
following
Petitioner's
conviction
on
the
1984
Marion County convictions, the Board held an initial prison term
hearing setting a parole consideration date for that sentence of
September
5,
2001.
In preparation
for
that
hearing,
Robert
Stuckey, Ph.D., prepared a Parole Board Psychological Evaluation on
Petitioner
dated
May
9,
2001,
and
Frank
P.
Colistro,
Ed.D.,
completed a psychological evaluation of Petitioner dated June 7,
2001.
On
October
16,
2001,
the
Board
conducted
a
parole
consideration hearing at which Petitioner appeared and testified.
At the conclusion of the hearing, the Board issued BAF #6, which
deferred for 24 months parole consideration for the 1984 Marion
County convictions.
The Board explained the decision as follows:
The Board, applying the rules in effect at the time of
the commitment offense (s), finds the offender has a
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, the condition
which made inmate dangerous is not in remission and
8 - OPINION AND ORDER -
inmate does continue to remain a danger. The Board would
reach the same result under the current rules.
Resp. Exh. 103, p.
Petitioner
4.
sought
administrative
review,
denied in a written decision in ARR #2.
which
the
Board
Petitioner then sought
judicial review, but the Oregon Court of Appeals affirmed without
opinion and the Oregon Supreme Court denied review.
of Parole, 199 Or. App. 270, 111 P. 3d 248,
Smith v. Board
rev. denied,
339 Or.
450, 24 P. 3d 609 (2005).
C.
The 2007 Board Decision Deferring Release on Parole from
the 1984 Marion County Sentence - Case No. 2: 15-cv-00738BR
Petitioner appeared before the Board regarding his 1984 Marion
County convictions on July 18,
hearing. 2
for a parole consideration
Resp. Exh. 102.
Following that hearing,
("BAF")
2007,
#13
deferring
the Board issued Board Action Form
for
24
months
consideration date for these convictions.
Pe ti ti oner
sought
administrative
review,
Petitioner's
parole
Resp. Exh. 102, pp. 4-7.
but
the
Board
denied
relief on June 15, 2009, in Administrative Review Response ("ARR")
#10.
Resp.
Exh.
102, pp.
6-7.
Petitioner filed a petition for
judicial review, but the Oregon Court of Appeals affirmed without
opinion and the Oregon Supreme Court denied review.
Smith v. Board
'Petitioner also appeared before the Board in 2003 and 2005 as
to these convictions, but the Board decisions following those
hearing are not at issue here.
9 - OPINION AND ORDER -
of Parole, 245 Or. App. 300, 260 P.3d 201 (2011), rev. denied, 352
Or.
170, 285 P.3d 720
December 4, 2012.
D.
(2012).
The appellate judgment issued on
Resp. Exh. 103.
The 2009 Board Decision Deferring Release on Parole on
the 1984 Marion County Conviction - Case No. 2: 15-cv00738-BR
On July 8, 2009,
Petitioner again appeared before the Board
for another parole consideration hearing related to the 1984 Marion
County
convictions.
Notwithstanding
Petitioner's
request
for
subpoenas for records and for personal appearances of witnesses at
the
hearing,
the
Board
ruled
that
such
subpoenas
were
not
authorized by law.
The Board memorialized this ruling in Board
Action E'orm ("BAE'")
#16.
Thereafter,
the Board issued BAE' #17
deferring for 24 months Petitioner's parole consideration date.
Petitioner sought administrative review of both of these actions,
but the Board denied relief in ARR #11 and ARR #12.
105, pp. 2-5.
Resp.
Exh.
Petitioner filed a petition for judicial review.
The Oregon Court of Appeals affirmed the Board's decision in a
written opinion.
P. 3d 245
(2015).
Smith v. Board of Parole, 268 Or. App. 457, 343
On July 9,
2015,
after Petitioner filed his
Petition for Writ of Habeas Corpus in Case No. 2:15-cv-00738-BR,
the Oregon Supreme Court denied review.
and Post-Prison Supervision, 357 Or. 550,
10 - OPINION AND ORDER -
Smith v. Board of Parole
357 P.3d 245 (2015).
II.
Federal Habeas Proceedings
On December 20, 2005, Petitioner filed a pro se Petition for
Writ of Habeas Corpus in Smith v. Hill, Case No. 3:05-cv-01900-BR
as to his challenges regarding restoration of good time credit from
his
1981
Jackson
County
''dangerous offender,''
convictions.
convictions,
and other parole
his
classification
issues
as
related to those
In it, Petitioner alleged five claims for relief:
Ground One:
Respondents
have
wrongfully
extended
petitioner's term of confinement through the ex post
facto application of laws.
Supporting Facts: Oregon state law in effect at the time
of petitioner's crime authorized the suspension of a
prisoner's previously earned good time credits upon a
prisoner's
release
on
parole
but,
also
required
respondent Hill recommend the full restoration of the
suspended good time credits upon a prisoner's return to
prison as an alleged parole violator if the prisoner
would have received the good time credit had he/she not
been paroled.
Under the prior Oregon law a prisoner's
good time credit would be fully restored if the prisoner
was not promptly reparoled. Petitioner has been returned
to prison as a parole violator and not reparoled.
Respondent Hill has refused to recommend the restoration
of and restore petitioner's previously earned good time
credits.
The basis for respondent's action is laws
enacted after the commission of petitioner's crime which
now require a prisoner save another person's life before
any good time credits will be restored.
Ground Two: Respondents and the State of Oregon have
wrongly denied petitioner Due Process of law under the
Fifth and Fourteenth Amendments.
Supporting Facts:
Both the actions
of suspending
petitioner's previously earned good time credits and the
decision to refuse to restore the suspended good time
credits occurred without notice and without a meaningful
opportunity to contest these actions.
Though ORS
421.120(1) (h)
requires
respondents
enact
uniform
administrative rules governing the granting, retracting,
and restoring of good time credits Oregon prison and
11 - OPINION AND ORDER -
a
parole officials have not enacted procedures providing
prisoners a meaningful opportunity to contest legal
errors in granting, retracting, and/or restoring good
time credits.
Ground
Three:
Respondents
have
wrongly
extended
petitioner's term of confinement through the ex post
facto application of laws.
Supporting Facts: Petitioner was sentenced to an enhanced
sentence under Oregon's ''Dangerous Offender'' statutes.
Under the laws in effect at the time of petitioner's
crime, a prisoner had to be released on parole on the
"parole consideration date" established by the board of
parole at the prisoner's initial prison term hearing if
when the parole consideration date came an independent
evaluation conducted by a psychiatrist in the employ of
the Oregon State Hospital indicated that the prisoner was
not a ''menace to the health or safety of others.''
Pe ti ti oner's established parole consideration date was in
July of 2001 but, respondents, through the application of
laws enacted after the commission of petitioner's crime,
have denied petitioner the independent evaluation
petitioner was entitled to under the laws annexed to
petitioner's crime and have usurped the authority to
determine petitioner's eligibili tv for release on parole.
Ground
Four:
Respondents
have
wrongly
extended
petitioner's term of confinement through the ex post
facto application of laws.
Supporting Facts: Petitioner realleges the facts set
forth in the Supporting FACTS section of Ground Three
above. Petitioner further asserts that respondents have
also applied a more onerous criteria than that annexed to
petitioner's crimes to deny petitioner parole. Under the
laws annexed to petitioner's crimes, an independent
determination had to be made as to whether the prisoner
was a "menace to the heal th or safety of others."
Respondents have applied a potentially ''dangerous''
statutory criteria enacted after the commission of
petitioner's crime premised on an evaluation prepared by
an employee of the board of parole.
Ground Five: Respondents and the State of Oregon have
wrongly denied petitioner Due Process of law under the
Fifth and Fourteenth Amendments.
Supporting Facts: Petitioner realleges the facts set
forth in the Supporting FACTS section of Ground Three and
four above.
Petitioner further asserts that during
12 - OPINION AND ORDER -
petitioner's criminal trial proceedings petitioner moved
pursuant to the provisions of ORS 137.079 for an order
striking
portions
of
the
prepared
presentence
investigation. The trial court subsequently found that
substantial portions of the presentence investigation
contained information that was false and granted
petitioner's motion. The provisions of ORS 137.079 ban
release of information stricken from a presentence
investigation to the state board of parole and the state
department of corrections. Notwithstanding the grant of
petitioner's motion, those portions of petitioner's
presentence
investigation
ordered
stricken
and/or
disregarded were forwarded to, and became part of the
files and records of, the board of parole.
In response
to litigation associated with petitioner's initial prison
term hearing the board of parole purged its files of the
information ordered stricken. Though the board of parole
subsequently purged its files and records of this
infomiation the department of corrections did not.
In
producing the evaluation of petitioner upon which the
board
denied
petitioner
release
on
parole
the
psychologist
in
the
board's
employ
relied
upon
information previously determined to be false in state
court proceedings. At petitioner's hearings, the board
has denied petitioner all opportunity to cross-examine or
otherwise submit questions to the person producing the
evaluations used as the sole basis for the denial of
parole to petitioner.
Respondents have used an
evaluation they know to be based on false information to
deny petitioner release on parole with out allowing a
meaningful opportunity to challenge the content of the
evaluation.
The Court appointed counsel to represent Petitioner and, on
July 25, 2008, the Court granted petitioner's motion to stay the
proceedings in Case No. 3:05-cv-01900-BR pending the exhaustion of
state remedies related to the 2003 Board decision memorialized in
BAF
#7,
discussed
above.
As
noted,
BAF
#7
superseded by BAF #15 following the December 10,
before
the
Board,
and
the
Oregon
13 - OPINION AND ORDER -
appellate
was
ultimately
2008,
courts
hearing
upheld
the
Board's decision in BAF #15.
The appellate judgment issued on
August 16, 2012.
On June 14, 2013, Petitioner filed a motion seeking to lift
the administrative stay in Case No. 3:05-cv-01900-BR and seeking
leave to file an amended petition alleging the five claims from the
original petition plus an additional eight claims.
Four of the
proposed new claims pertained to the
2008,
December 10,
Board
decision denying restoration of Petitioner's good time credits, and
the other four pertained to the Board's decisions to deny release
on parole in 2007 and 2009.
case
again,
this
time
Petitioner also sought to stay the
pending
the
conclusion
of
state
court
proceedings related to the 2009 Board decision.
The Court noted a split of authority in the Ninth Circuit as
to whether the Rules Governing § 2254 cases permit a petitioner to
challenge
in
one
federal
habeas
petition
two
separate
parole
decisions related to one judgment of conviction and sentence.
The
Court also noted that allowing challenges to multiple Parole Board
decisions in a single habeas proceeding would present inherent,
"mixed petition" problems when the Board issues new decisions while
the Petitioner is still in the process of exhausting state remedies
as
to
the
earlier
Board decision(s).
Accordingly,
the
Court
granted Petitioner's motion to lift the stay and the motion for
leave to amend the petition to allege the claims pertaining to the
restoration of good time credits, but denied the motion to amend
14 - OPINION AND ORDER -
the petition to allege claims pertaining to the 2007 and 2009 Board
decisions.
On April 10, 2015, Petitioner filed a First Amended Petition
for Writ of Habeas Corpus in Case No. 3:05-cv-1900-BR incorporating
the five claim for relief alleged in the original pro se Petition.
As noted above, the original claims alleged in Grounds One and Two
challenged the 2003 decision by the Board in BAF #7 to deny the
restoration of good time credits, and Grounds Three, Four, and Five
challenged
the
Board's
2001
decision
deferring
release.
The
Amended Petition also added the four additional claims allowed by
the Court, as follows:
Ground Five: Petitioner was denied due process under the
Fourteenth Amendment when the Board failed to provide any
reasons for its denial of the restoration of good time
credits and failure to re-parole petitioner effective
February 2005.
Ground Six: The Parole Board's 2003 and 2008 denial of
petitioner's good time credit and Board's failure to
re-parole petitioner effective February 2005, violated
the federal ex post facto clause and the federal due
process clause. Regarding the due process violation,
among other things, the decision was a vindictive
response to petitioner's efforts to seek remedies. And
the Parole Board's refusal to allow petitioner to
subpoena and pose questions to witnesses regarding the
calculation of petitioner's good time discharge date and
the two recommendations deprived petitioner of a fair
hearing, reasonable notice and a meaningful opportunity
to be heard.
Ground Seven: The Parole Board's failure to re-parole
petitioner in February 2005, violated the federal ex post
facto clause and the federal due process clause.
Ground Eight: The Parole Board's 2003 and 2008 failure to
re-parole petitioner effective February 2005 or to
15 - OPINION AND ORDER -
restore his good time credit, violated petitioner's First
Amendment rights to free speech and access to the courts.
Respondent argues the claims alleged in Grounds One,
Five,
Six,
Seven,
and
Eight
are
procedurally
defaulted.
Two,
In
addition, Respondent argues that to the extent the Court finds the
claims alleged in Grounds One, Five, and Six were fairly presented
to the highest state courts as federal claims,
relief on these
claims was denied in decisions which are not contrary to or an
unreasonable application of clearly established federal law and, as
such,
are entitled to deference.
Finally,
concedes the claims alleged in Grounds Three,
fully exhausted,
although Respondent
Four, and Five are
Respondent nevertheless asserts that the state
court's denial of these claims are entitled to deference.
On April 30, 2015, Petitioner filed his counseled Petition for
Writ of Habeas Corpus in Case No. 2:15-cv-00738-BR, alleging five
grounds for relief challenging the Board's 2007 and 2009 decisions
to defer Petitioner's parole release date on his 1984 Marion County
conviction:
Ground One:
Petitioner was denied his First Amendment
right to free speech and Due Process pursuant to the
Fourteenth Amendment when the Parole Board denied parole
in 2007 based upon Petitioner's conduct which questioned
the validity of the evaluation and testing process.
Ground Two:
Petitioner was denied due process pursuant
to the Fourteenth Amendment when the Parole Board denied
parole in 2007 based upon unreliable evidence and when it
denied Petitioner's request to call and question
witnesses on the factual issue.
16 - OPINION AND ORDER -
Ground Three:
The Parole Board violated the ex post
facto clause of the federal constitution when it denied
parole in 2007 and 2009 based upon a subsequently enacted
standard that allowed Board psychologists to provide them
mental health evaluation when the applicable standard
required Oregon State Hospital psychiatrists to conduct
the evaluation and when the applicable standard required
a more exacting substantive standard.
Ground Four: Petitioner was denied due process pursuant
to the Fourteenth Amendment and his right to free speech
under the First Amendment when the Parole Board denied
parole in 2009 based upon his request that the
psychological evaluation be monitored or recorded.
Ground Five: Petitioner was denied due process pursuant
to the Fourteenth Amendment when the Parole Board denied
parole in 2009 without allowing petitioner to call and
question witnesses. The Board is not merely charged with
making a prediction about whether the inmate will succeed
on parole.
In parole consideration proceedings in
Oregon, the Board is charged with administering the
second step in the sentencing process. As a result, the
right to call and question witnesses is necessary under
Mathews v. Eldridge, 424 U.S. 319, 332, 335 (1976) (the
process due in a particular situation depends upon the
need to serve the purpose of minimizing the risk of
error). Moreover, the Board may not ignore the process
the state adopted to minimize the risk of erroneous
decisions related to parole release for dangerous
offenders. The state granted the right to call witnesses
and the ability to effectuate that right through
attorney-issued subpoenas.
The Parole Board's blanket
refusal to allow questioning of the report writers in
these proceedings violates due process.
Respondent argues the claims alleged in Grounds One, Two, and
Three
against
the
2007
Board
decision
are
untimely
and
that
Petitioner has not fully exhausted the claims alleged in Grounds
Three, Four, and Five against the 2009 Board decision.
17 - OPINION AND ORDER -
DISCUSSION
I.
Denial of Good Time Credit Restoration on the 1981 Jackson
County Sentence - Case No. 3:05-cv-01900-BR
Failure to Re-Parole Petitioner in 2005 3
A.
In Grounds Five through Eight, Petitioner alleges, inter alia,
that the Board violated Petitioner's ex post facto and due process
rights when it failed to re-parole Petitioner effective February
2005 pursuant to the Board's decisions on the restoration of good
time credits in 2003 and 2008.
in BAF #15,
however, was limited to the issue of restoration of
good time credits.
challenge
The Board's 2008 decision set forth
was
Moreover,
likewise
on judicial review,
limited;
he
asserted
Petitioner's
the
denial
of
restoration of good time credits was an ex post facto violation and
due process violation,
and he challenged the Board's refusal to
allow him to subpoena and examine witnesses about his sentence
calculations.
Petitioner did not address the failure to re-parole
Petitioner in 2005, indeed to do so would have proved futile as the
issue was not preserved before the Board.
Generally, a state prisoner must exhaust all available state
court
remedies
either
on
direct
appeal
or
through
collateral
proceedings before a federal court may consider granting habeas
corpus relief.
28 U.S.C. § 2254(d) (1).
3
A state prisoner satisfies
Because the claims alleged in Grounds One and Two of the
original petition were ultimately subsumed by the Claims alleged in
Grounds Five and Six in Case No. 3:05-cv-01900-BR, the Court does
not address those claims separately.
18 - OPINION AND ORDER -
the exhaustion requirement by "fairly presenting" his claim to the
appropriate state courts at all appropriate stages afforded under
Castille v. Peoples, 489 U.S. 346, 351 (1989); Baldwin
state law.
v. Reese, 541 U.S. 27, 29 (2004); Carrillo-Carrillo v. Coursey, 823
F.3d 1217,
1220
(9th Cir.
915-16 (9th Cir. 2004).
Casey v. Moore,
2016);
386 F.3d 896,
If the petitioner procedurally defaults
his available state remedies, habeas relief is precluded absent a
showing of cause and prejudice, or that the failure to consider the
defaulted
justice.
claims
will
result
in
a
fundamental
miscarriage
of
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
To the extent Petitioner's claims in Grounds
Five through
Eight challenge the Board's failure to issue a ruling in BAF #15 to
re-parole
because
Petitioner
in
Petitioner
did
2005,
not
they
are
fairly
procedurally
present
them
defaulted
in
his
administrative review request to the Board or on judicial review of
the Board's decision.
He cannot now do so because the time for
filing an administrative review request and judicial review has
expired.
Moreover,
Petitioner has not made any showing of cause
and prejudice or a fundamental miscarriage of justice to excuse his
procedural default, and, therefore, habeas relief is precluded as
to these claims.
19 - OPINION AND ORDER -
B.
In
Due Process
Decision
Ground
Five
Violation
of
Case
for
No.
Failure
to
Explain
3:05-cv-01900-BR,
Board
Petitioner
alleges the Board denied his due process rights when it failed to
provide any reasons for its denial of restoration of good time
credits in BAF #15.
In order for Petitioner to establish that the
Board's
restoration
denial
decisions
of
upholding
that
and
denial
unreasonable application of,
the
were
state
appellate
"contrary
to,
clearly established federal
court
or
an
law as
determined by the United States Supreme Court," Petitioner must
show that there is clearly established Supreme Court law on the
issue presented.
Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.
2006), overruled on other grnds by Daire v. Lattimore, 812 F.3d 766
(9th Cir. 2006).
The Court notes neither party discusses the claim alleged in
Ground Five with any particularity.
Respondent simply states the
Board provided Petitioner with a sufficient statement of why his
good time credits were not restored, citing Swarthout v. Cooke, 562
U.S. 216, 131 S. Ct. 859, 862-63 (2011), in which the Supreme Court
held that in the parole release context, a prisoner is entitled to
no more than an opportunity to speak at the parole hearing and to
be provided a
statement of the
reasons why parole was denied.
Petitioner, for his part, cites cases involving the revocation of
good time credits in disciplinary proceedings.
however, applies here.
20 - OPINION AND ORDER -
Neither standard,
At the time Petitioner's parole was revoked in 1984, Oregon
law
required
pre-parole
good
time
credits
to
be
forfeited
automatically upon the violation of the terms of parole unless, as
already noted, the superintendent recommended restoration and the
Board agreed.
P. 2d 1224
See also Ventris v. Maass, 99 Or. App. 85, 89, 781
(1989)
(" [p) re-parole good time is not .
. a 'vested
right,' but may be lost by violating a condition of parole"), rev.
denied,
309 Or.
231,
781
P.2d
1224
Thus,
(1990).
under
the
administrative rules implementing the statute, restoration of good
time credits was wholly within the discretion of the Board upon a
favorable recommendation of the Superintendent.
Petitioner relies on Wolff v. McDonnell,
418 U.S. 539 (1974)
and similar decisions addressing the situation where an inmate who
has
been
granted
a
statutory
right
to
good-time
forfeiture of that right for serious misbehavior.
credit
faces
When state law
creates a liberty interest in the retention of good time credits,
it
is
well
settled
the
inmate
is
entitled
to
due
process
protections including a written statement by the factfinders as to
the evidence relied upon and the reasons for the action which is
sufficient to permit an individual to understand why the government
acted as it did.
Wolff,
418 U.S.
at 557;
see also Goldberg v.
Kelly, 397 U.S. 254, 267-68 (1970).
In
contrast
to
the
cases
Petitioner
cites,
however,
he
automatically lost his good-time credits under state law when he
21 - OPINION AND ORDER -
violated the terms of his parole.
The relevant question,
then,
becomes whether Petitioner had any state-created liberty interest
in the subsequent restoration of those credits as opposed to their
forfeiture.
As noted, the statutory decision to restore good-time credits
upon revocation of parole is wholly within the discretion of the
Board.
and
While Petitioner argued to the contrary before the Board
the
Oregon
appellate
courts,
i.e.,
that
restoration
of
Petitioner's good time credit was mandatory, these bodies rejected
that argument.
interest
in
As such,
the
Petitioner has no state-created liberty
restoration
of credits.
See,
e.g.,
White
v.
Schriro, Case No. CV 05-32312-PHX-FJM, 2007 WL 2410335, at *7 (D.
Ariz.
Aug.
21,
2007)
(Arizona
release
credit
statutory
scheme
conferring considerable discretion on the Department of Corrections
eliminated any state-created liberty interest, distinguishing it
from Wolff), aff'd 377 Fed.Appx. 618 (9th Cir. 2010); see also Olim
v. Wakinekona, 461 U.S. 238, 249 (1983) (Hawaii prison regulations
which placed no substantive limitations on official discretion thus
created no liberty interest entitled to protection under the Due
Process Clause) .
not
entitled
to
Accordingly, the Court concludes Petitioner is
the
due
process
protections
applicable
revocation of good time credits described in Wolff,
to
or to those
applicable to parole release determinations described in Swarthout.
22 - OPINION AND ORDER -
For these reasons, the Court concludes that the Board's denial
of restoration of good time credits and the state appellate court
decisions upholding that determination were neither contrary to nor
an unreasonable application of clearly established federal law as
determined by the United States Supreme Court.
Because Oregon law
conferred unfettered discretion on the Board to determine whether
to restore good time credits which were automatically forfeited
upon the violation of terms of parole, Petitioner had no liberty
interest
in
the
restoration
of
those
credits.
According 1 y,
Petitioner is not entitled to habeas corpus relief on the claim
alleged in Ground Five.
C.
Ex Post Facto Violation Base Upon Denial of Restoration
of Good Time Credits
In Ground Six of Case No. 3:05-cv-01900-BR, Petitioner alleges
the Board violated his rights under the Ex Post Facto Clause when
it refused in BAF #15 to restore the good time credits forfeited
when
he
violated
the
memorandum to this
terms
Court
of
his
parole
in
1984.
in support of Ground Six,
In
his
Petitioner
largely reiterates the argument he presented to the Oregon Court of
Appeals that the laws annexed to Petitioner's offense unambiguously
mandated the restoration of Petitioner's previously accrued good
time credits.
As discussed above, however, the statutory scheme in
effect at the time of Petitioner's offense and parole violation
afforded
mandated.
the
Board
wide
discretion
and
The state appellate courts'
23 - OPINION AND ORDER -
restoration
was
not
decision to affirm the
Board's order is, therefore, supported by the law in effect at the
time and does not represent an ex post facto violation.
The Court notes Petitioner also argued to the Oregon Court of
Appeals that Department of Correction rules required the DOC to
make a positive recommendation for the restoration of good time
credits, and that the DOC improperly applied a 1996 rule to issue
the
2003
credits.
Court
of
memorandum
recommending
against
restoration
of
the
As noted above and as argued by Respondent to the Oregon
Appeals,
the
Board
ultimately
disregarded
memorandum and acted instead on the 1984 memorandum.
the
2003
At the 2008
hearing which culminated in the issuance of BAF #15,
the Board
properly considered the 1984 memorandum, applied Or. R. Admin. P.
255-75-085, and the Board determined that in accordance with all
the applicable rules and laws, restoration of forfeited good time
should be denied.
The Court concludes this determination did not
violate the Ex Post Facto Clause, and the Oregon court decisions
affirming
the
Board
were
not
contrary
to
or
an
unreasonable
application of clearly established federal law.
D.
Due Process Violation for Failure to Allow Petitioner to
Subpoena and Question Witnesses
Finally,
also in Ground Six of Case No.
3: 05-cv-01900-BR,
Petitioner alleges the Board violated his due process rights when
they refused to allow
Petitioner to subpoena witnesses
to the
December 10, 2008, hearing to question them about the calculation
of Plaintiff's good time credits.
24 - OPINION AND ORDER -
As discussed above,
however,
because Plaintiff did not a have state-created liberty interest in
the restoration of his good time credits, the refusal to allow him
to subpoena and question witnesses at the hearing did not violate
his due process rights.
II.
2001 Board Decision Deferring Release on 1984 Marion County
Sentence - Case No. 3:05-cv-01900-BR
Ex Post Facto Violation Based Upon Board's Reliance on
Contract Psychologists
A.
In
Ground Three
of
Case
No.
3: 05-cv-01900-BR,
Petitioner
alleges the Board violated the Ex Post Facto Clause when it relied
upon contract psychologists rather than a psychiatrist employed by
the
Oregon
evaluations
State
before
Hospital
the
to
perform
October
2001
parole
hearing
consideration
to
determine
Petitioner's parole release eligibility on the 1984 Marion County
sentence.
Pe ti ti oner committed the er imes resulting in his dangerous
offender sentence in early 1984.
At that time, Oregon law required
that a dangerous offender be given "a complete physical, mental and
psychiatric
examination
Superintendent
of
the
by
a
Oregon
psychiatrist
State
consideration hearing.
Or.
addition,
directed
the
statute
Rev.
Hospital"
Stat.
the
appointed
§
before
144.226(1)
examining
by
a
the
parole
(1983).
psychiatrist
In
to
determine whether "the convicted person has any mental or emotional
disturbance or deficiency or condition predisposing the person to
the commission of any crime to a degree rendering the examined
25 - OPINION AND ORDER -
person a menace to the health or safety of others.''
§ 114. 228 (2) (1984).
Or. Rev. Stat.
The appointed examining psychiatrist was also
required to include in the report ''any other information which the
examining psychiatrist believes will aid the State Board of Parole
in determining whether the examined person is eligible for release"
and ''the report shall also state the progress or changes in the
condition of the examined person as well as any recommendation for
treatment."
Or. Rev. Stat. § 144.226(2)
(1984).
In 1991, the Oregon Legislature amended§ 144.226 to authorize
the Board to hire its own psychologists to produce and submit the
report previously required from the appointed Oregon State Hospital
expert.
a
The new law provided that before a parole release hearing,
person
sentenced as
a
dangerous
offender must
be
"given a
complete mental and psychiatric or psychological examination by a
psychiatrist or psychologist appointed by the [Board].''
Stat.
§
144.226(1)
psychologist
findings
was
and
then
(1991).
The
required
conclusions
to
relative
examining
"file
to
a
psychiatrist
written
the
Or. Rev.
report
or
or
examination [. J"
Petitioner argues that the change in law disadvantaged him because
the statute in effect at the time he committed his crimes promised
medical diagnosis and a prescription for treatment, that the Board
appointed psychologists were not impartial, and that the evaluators
were
no
longer
required
to
be medically
doctorally educated evaluators.
26 - OPINION AND ORDER -
trained
but
instead
To establish an ex post facto claim, Petitioner must show that
the Board's retroactive application of
§
'sufficient
punishment
risk'
of
increasing
[petitioner's] crimes."
Cir. 2003)
the
144.226(1)
"created a
attached
to
Himes v. Thompson, 336 F.3d 848, 854 (9th
(citing Weaver v. Graham,
450 U.S. 24, 29,
(1981) and
Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509 (1995)); see also
Gamer v. Jones, 529 U.S. 244, 251 (2000)
change
violates
the
Ex
Post
Facto
(a retroactive procedural
Clause
when
it
"creates
significant risk of prolonging [an inmate's] incarceration.").
a
A
''speculative'' or ''attenuated'' risk of prolonged incarceration is
insufficient to establish a violation of the Ex Post Facto Clause.
Morales,
514 U.S.
at 509.
''Changes in the law that are merely
procedural will withstand scrutiny."
Brown v. Palmateer, 379 F.3d
1089, 1093 (9th Cir. 2004).
The Board rejected Petitioner's ex post facto claim based upon
his failure to show that the use of a psychologist rather than a
psychiatrist to examine Petitioner was
Petitioner's position.
somehow more onerous to
Resp. Exh. 103, p. 8.
Petitioner has not
shown this decision is contrary to or an unreasonable application
of clearly established federal law and is entitled to deference.
Indeed, the Court concludes the change in law was procedural, and
at most, any risk of prolonged incarceration is wholly speculative
and attenuated.
Accordingly, Petitioner is not entitled to relief
on the claim alleged in Ground Three.
27 - OPINION AND ORDER -
B.
In
Ex Post Facto Violation Based Upon Board's Reliance on
Later Enacted Standard to Defer Parole Consideration
Ground
Four
of
Case
No.
3:05-cv-01900-BR,
alleges the Board committed an ex post
Petitioner
facto violation when it
relied upon a standard other than the one in effect in 1984 to
defer Petitioner's parole consideration date.
As noted,
at the
time Petitioner committed the crimes resulting in his dangerous
offender sentence, Oregon law required the examining psychiatrist
to opine whether "the convicted person has any mental or emotional
disturbance or deficiency or condition predisposing the person to
the commission of any crime to a degree rendering the examined
person a menace to the health and safety of others.''
Stat.
§
144. 226 (2)
examination before
required
the
whether
"the
(1983)
the
examining
convicted
(emphasis added).
2001
hearing
psychiatrist
person
has
took
or
Rev.
When Petitioner's
place,
the
psychologist
any
Or.
mental
or
new
to
law
report
emotional
disturbance, deficiency, or disorder predisposing the person to the
commission of any crime to a degree rendering the examined person
a danger to the heal th or safety of others."
144. 226 (2) (2001)
Petitioner
instead
of
Or.
Rev.
Stat.
§
(emphasis added).
argues
"menace"
applying
stripped
the
out
new
the
standard
objective
of
"danger"
ability
of
a
dangerous offender to obtain parole release because any personality
disorder could be said to present a danger to the public.
Again,
however, the Court concludes any risk of prolonged incarceration as
28 - OPINION AND ORDER -
a
result of this
attenuated.
change in language
Likewise,
the Board rejected this argument in the
Administrative Review Response,
courts
affirmed.
is wholly speculative and
a decision the Oregon appellate
Petitioner
has
not
established
this
was
a
decision that was contrary to or an unreasonable application of
clearly established federal law.
C.
In
Due Process Violations
Ground
Five
of
Case
No.
3:05-cv-01900-BR,
Petitioner
alleges due process violations when the appointed psychologists
relied on information stricken from the presentence investigation
report and when the Board did not allow Pe ti ti oner to cross-examine
the evaluators.
parole,
Where state law creates a liberty interest in
the Supreme Court has held that ''the Due Process Clause
requires fair procedures for its vindication-and federal courts
will
review the application of those constitutionally required
procedures."
Swarthout,
131
S.
Ct.
at
862.
The
procedures
required to satisfy due process requirements in the parole context,
however, are minimal, and include only an opportunity to be heard
and provision of a statement of the reasons why the parole was
denied.
Id.
(citing Greenholtz v.
Inmates of Neb.
Correctional Complex, 442 U.S. 1, 16 (1979)).
Penal and
Further, "[b]ecause
the only federal right at issue is procedural, the relevant inquiry
is what process [the petitioner] received, not whether the state
court decided the case correctly."
29 - OPINION AND ORDER -
Id. at 863 (emphasis supplied).
Assuming without
liberty
interest
in
deciding
parole,
here
that
Petitioner
minimal amount of required process:
Oregon
law creates
received
at
least
a
the
the Board provided Petitioner
with a copy of the examining psychologists' written reports before
the parole hearing, Petitioner was allowed to present evidence and
argument
before
and
at
the
hearing,
and
the
Board
notified
Petitioner in writing of the reasons why his parole release date
was deferred.
On this record, the Court concludes the Board did not violate
Petitioner's rights under the Due Process Clause, and the decision
denying
his
unreasonable
Accordingly,
release
on
application
parole
of
was
clearly
not
contrary
established
to
federal
or
an
law.
Petitioner is not entitled to habeas corpus relief
under 28 U.S.C.
2254.
§
III. 2007 and 2009 Board Decisions Deferring Release on 1984 Marion
County Sentence - Case No. 2:15-cv-00738-BR
In
Case
No.
2:15-cv-00738-BR,
Respondent
contends
that
Petitioner's challenges to the 2007 Board decision are untimely
under 28 U.S.C.
§
2244(d), which provides a one-year statute of
limitations for habeas corpus petitions filed pursuant to 28 U.S.C.
§
2254.
Petitioner counters that because he attempted to file his
claims in Smith v. Hill, Case No. 3:05-cv-01900-BR within a year of
the exhaustion of his claims against the Board's refusal in 2008 to
reinstate good time credits,
the claims against the 2007 Board
decision should be considered timely.
30 - OPINION AND ORDER -
Petitioner also argues that,
to
the
extent
his
claims
against
the
2007
Board decision
are
''technically late,'' such untimeliness was caused either by this
Court
or by error
counsel.
on
the part
of
Petitioner's
federal
habeas
In any event, Petitioner argues that such error should be
excused under the cause and prejudice doctrine, equitable tolling
doctrine, and/or the protective petition doctrine.
"Although
a
procedural
issue
such
as
limitations should ordinarily be resolved first,
the
statute
of
the statute of
limitations is not jurisdictional, and 'judicial economy sometimes
dictates reaching the merits [of a claim) if the merits are easily
resolvable against a petitioner while the procedural bar issues are
complicated. '"
Soto v. Ryan,
Dec.
(quoting Barrett v. Acevedo,
24,
2015)
(8th Cir. 1999)).
2015 WL 10761165, at *3
(D. Ariz.
169 F.3d 1155, 1162
Here, the Court finds it is more efficient to
resolve first Petitioner's claims against the 2007 Board decision
on
the
merits
rather
than
to
address
the
complex
statute
of
limitations issue as a preliminary matter.
The Court notes Respondent also argues that the claims alleged
in Grounds Three,
Four,
and Five of Case
No.
3: 15-cv-007 38-BR
against the Board's 2009 decision were not fully exhausted at the
time Petitioner filed his Petition for Writ of Habeas Corpus in
this action and,
Although
therefore,
Petitioner
does
the Court should deny those claims.
not
directly
address
Respondent's
exhaustion argument, the Court concludes it need not address the
31 - OPINION AND ORDER -
exhaustion issue because Petitioner is not entitled to relief on
the merits of his claims against the 2008 decision in any event.
See 28 U.S.C.
§
2254(b) (2)
("[a]n application for writ of habeas
corpus may be denied on the merits, notwithstanding the failure of
the applicant exhaust the remedies available in the courts of the
State").
A.
Ex Post
Facto Claims Against
the 2007 and 2009 Board
Decisions
In
Ground Three
of
Case
No.
3: 15-cv-007 38-BR,
Pe ti ti oner
alleges the Board violated the Ex Post Facto Clause in 2007 and
again
in
2009
by
deferring
parole
on
his
1984
Marion
County
conviction based upon a later-enacted standard that allowed Board
psychologists to provide the mental health evaluation when the
standard in effect at the time of Petitioner's crimes required a
psychiatrist appointed by the Oregon State Hospital to conduct the
evaluation
and
when
the
applicable
exacting substantive standard.
rejected the
standard
required
As discussed above,
a
more
this Court
identical claim against the Board's 2001 decision
deferring release on Petitioner's 1984 Marion County conviction.
For those same stated reasons, Petitioner is not entitled to habeas
corpus relief against the 2007 and 2009 Board decisions.
B.
In
Due Process Claims Against the 2009 Board Decision
Grounds
Petitioner
argues
Four
the
and
Five
of
Board denied
Case
No.
him due
3:15-cv-00738-BR,
process
and
First
Amendment rights when it issued the 2009 deferral order based upon
32 - OPINION AND ORDER -
his
request
that
the
psychological
evaluation be monitored or
recorded and based upon the denial to allow Petitioner to call and
question witnesses.
In its written opinion,
the Oregon Court of
Appeals first determined that state law did not provide a basis for
Petitioner
to
subpoena
witnesses
for
a
parole
consideration
hearing,
a determination which is not subject to federal habeas
review.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) {"it is
not the province of a federal habeas court to reexamine state-court
determinations on state-law questions").
The Oregon Court of Appeals, nevertheless, went on to reject
Petitioner's Fourteenth Amendment due process claims.
The court
first recited the current test for determining what process is due
for a parole release hearing under the Fourteenth Amendment as
announced by the Supreme Court in Swarthout:
state-created
liberty
interest
in
parole
a petitioner with a
"'received
adequate
process when he was allowed an opportunity to be heard and was
provided a
statement
of
the
reasons
why
parole
was
denied. '"
Smith, 268 Or. App. at 469 (quoting Swarthout, 131 S. Ct. at 862)
{additional internal quotations omitted) .
Applying this standard,
the Oregon Court of Appeals held:
Assuming, without deciding, that Oregon has created a
liberty interest in petitioner's parole, we conclude
that, under the holding of Swarthout, the ability to
subpoena
witnesses
is
not
a
requirement
for
a
constitutionally adequate parole consideration hearing
under ORS 144. 228.
Accordingly, the board did not
violate petitioner's due process rights under the
Fourteenth Amendment when it quashed the subpoenas and
33 - OPINION AND ORDER -
deferred petitioner's parole consideration for another
two years.
Id.
that
This Court concludes the Oregon Court of Appeals'
Petitioner
Fourteenth
received
Amendment
was
all
not
of
the
contrary
process
to
or
due
an
decision
under
the
unreasonable
application of clearly established federal law.
Finally,
although Petitioner also alleges violation of his
First Amendment rights with respect to Ground Four, Petitioner does
not cite any clearly established federal law on the interplay of
First Amendment freedom-of-speech rights with due process rights in
the context of a parole release hearing.
To the extent Petitioner
raised this claim in his petition for judicial review, the Court
notes
the
Oregon
See Smith,
argument.
petitioner's
Because
Court
other
of
Appeals
268 Or.
contentions
Petitioner has
App.
declined
at
without
469
to
address
n.16
(" [w]e
published
not demonstrated that
the
this
reject
decision").
decision
was
contrary to or an unreasonable application of clearly established
federal
law,
the Court concludes Petitioner is not entitled to
habeas corpus relief on the claims alleged in Grounds Four and Five
against the Board's 2009 decision deferring parole release.
C.
Due Process Claims Against the 2007 Board Decision
In Ground One of Case No. 3:15-cv-00738-BR, Petitioner alleges
the Board denied him his First Amendment right to free speech and
Due Process pursuant to the Fourteenth Amendment when the Board
denied
parole
in
2007
based
34 - OPINION AND ORDER -
upon
Petitioner's
conduct
which
questioned the validity of the evaluation and testing process.
In
Ground Two, he alleges the Parole Board denied him due process in
2007 when it deferred his parole based upon unreliable evidence and
when it denied Petitioner's request to call and question witnesses
on the factual issues.
As discussed above, the only process to which Petitioner was
due
in
connection
with
his
parole
release
hearing
was
the
opportunity to be heard and a statement of the reasons why release
was
not
granted.
Swarthout,
131
S.
Ct.
at
862.
Petitioner
received that process as evidenced by the Board's explanation in
BAF #13 and ARR #10.
Accordingly, the Court concludes Petitioner
is not entitled to habeas corpus relief on the claims alleged in
Grounds One and Two against the Board's 2007 decision.
CONCLUSION
For these reasons, the Court DENIES the Amended Petition for
Writ of Habeas Corpus (ECF No. 83) in Case No. 3:05 -cv-01900-BR and
the Petition for Writ of Habeas Corpus
(ECF No.
3:15-cv-00738-BR, and DISMISSES these actions.
I I I
I I I
I I I
I I I
I I I
I I I
35 - OPINION AND ORDER -
1)
in Case No.
The Court DENIES a certificate of appealability as Petitioner
has
not
made
a
substantial
constitutional right.
See 28
showing
u.s.c.
§
of
the
denial
2253(c) (2).
IT IS SO ORDERED.
2- /\-DATED this I
day of September, 2017.
ANNA~9/~
United States Senior District Judge
36 - OPINION AND ORDER -
of
a
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