Hernandez v. Board of Parole and Post-Prison Supervision
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is DENIED. A Certificate of Appealability is denied 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). IT IS SO ORDERED. Signed on 7/25/2017 by Judge Ann L. Aiken. (gw)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EDWARD T. HERNANDEZ,
Case No. 2:15-cv-01176-AA
OPINION AND ORDER
BOARD OF PARO LE AND
AIKEN, District Judge:
Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner argues that the Oregon Board of Parole and Post-Prison Supervision (the Board)
violated the Ex Post Facto Clause of the United States Constitution when it deferred his parole
consideration date pursuant to a statute that was enacted after the commission of his offenses.
Petitioner seeks an order either releasing him from custody or requiring the Board to hold a
parole consideration hearing. For the reasons explained below, the petition is denied.
- OPINION AND ORDER
In 1989, petitioner was convicted of several offenses relating to the sexual abuse of an
eleven-year-old girl. The sentencing court found petitioner to be a "dangerous offender" based
on its finding that petitioner "suffers from a severe personality disorder indicating a propensity
towards crimes that seriously endanger the life or safety of another." Resp'! Ex. 101 at 3; see
also Or. Rev. Stat.§ 161.725(l)(a) (dangerous offender statute). Accordingly, the court imposed
consecutive, indeterminate sentences of imprisonment. Resp't Ex. 101 at 4-5.
The Board's procedure for determining parole eligibility for dangerous offenders is
different than that for other offenders. Instead of calculating an initial parole release date, the
Board conducts a parole-consideration hearing to determine whether it should set an initial
parole release date. Or. Rev. Stat. § 144.228(l)(a). Before the hearing, a psychiatrist or
psychologist examines the offender and submits a written report to the Board. Id. § 144.226. The
Board must set a parole release date "if the board finds the prisoner no longer dangerous or finds
that the prisoner remains dangerous but can be adequately controlled with supervision and
mental health treatment." Id. § 144.228(l)(b)(A). "If the board is unable to make such findings, a
review will be conducted no less than two years, and no more than IO years, from the date of the
previous review." Id. Further, the Board "may not grant the prisoner a review hearing that is
more than two years from the date of the previous hearing unless the board finds that it is not
reasonable to expect that the prisoner would be granted a release date before the date of the
subsequent hearing." Id. § 144.228(1)(b)(B). In other words, the Board may defer parole
consideration hearings for up to ten years if the Board finds that the prisoner 1) remains
dangerous and cannot be adequately controlled, and 2) would not reasonably be expected to be
granted a release date before the specified deferral period.
- OPINION AND ORDER
In November 2011, the Board conducted a parole-consideration hearing to determine
whether an initial parole release date should be set in petitioner's case. Based on the evidence of
record, including a report from a psychologist, the Board found that petitioner continued to have
a dangerous "mental or emotional disturbance, deficiency, condition, or disorder" rendering him
"a danger to the health or safety of others." Resp'! Ex. 105 at 176. Invoking§ 144.228, the Board
further found that petitioner would not reasonably be expected to be granted release during the
five years after his February 2012 parole consideration date. Id; see also Resp't Ex. 108.
Accordingly, the Board did not set an initial release date and scheduled petitioner's next parole
consideration date for February 2017. Resp'! Ex. 105 at 176. The Board explained that its
findings were "based on but not limited to" three factors under Or. Admin. R. 255-062-0016,
including "factor number two, which is infractions of institutional rules and discipline; factor
number four, inmate's failure to demonstrate understanding of the factors that led to his criminal
offense; factor number six, the inmate's demonstrated lack of effort to address criminal risk
factors of substance abuse problems." kl at 177. The Board afforded petitioner the right to
request an interim hearing after two years to demonstrate that "there is reasonable cause to
believe that [petitioner] may be granted a change in terms of confinement." Id.
Petitioner sought administrative review with the Board and argued that insufficient
evidence supported the Board's deferral of his parole consideration hearing. Resp't Ex. 105 at
184-88. The Board rejected his arguments. Id. at 190-91.
Petitioner then sought judicial review with the Oregon Court of Appeals and argued that
insufficient evidence supported his continued designation as a dangerous offender and that the
Board violated state and federal ex post facto prohibitions by relying on a statute and regulation
enacted after petitioner's offenses to defer parole consideration. Resp't Ex. 107. Petitioner
- OPINION AND ORDER
admitted that he did not raise his ex post facto argument before the Board and invited the Court
of Appeals to review for plain error; respondent argued that plain error review was not available
in those circumstances. Resp'! Ex. 109 at 31-32. The Court of Appeals affirmed without opinion,
and the Oregon Supreme Court denied review. Resp'! Ex. 112-113.
Petitioner now seeks relief pursuant to 28 U.S.C. § 2254.
In Ground One, petitioner argues that the Board's decision was not supported by
sufficient evidence of a continuing dangerous condition and failed to comply with Oregon
statutory requirements. In Ground Two, petitioner claims that the Board's reliance on a 2009
statute and regulation violated the prohibition against ex post facto punishment.
Petitioner raises Four "Questions Presented" and two "Assignments of Error" in his
petition. Questions 1 through 3 challenge the sufficiency of the evidence supporting the Board's
decision, while Question 4 raises an ex post facto claim. Pet. at 3-5 (ECF No. 2). Petitioner's
First Assignment of Error asserts that the Board erred by deferring his parole-consideration date
on grounds of insufficient evidence and unmet statutory requirements. Petitioner's Second
Assignment of Error asserts that the Board erred by deferring the parole-consideration date by
five years and violated the prohibition against ex facto punishment in doing so. In other words,
Questions 1 through 3 correspond with petitioner's First Assignment of Error, and Question 4
with his Second Assignment of Error. Respondent referred to the First and Second Assignments
of Error as Grounds One and Two, respectively. Petitioner was appointed counsel, who likewise
referred to petitioner's claims as Ground One and Ground Two.
Petitioner's counsel submitted a brief in support of Ground Two. Subsequently, counsel
moved to withdraw at petitioner's request, because petitioner wanted counsel to pursue
additional claims concerning his sentence. (ECF Nos. 38-39) The court allowed the motion, and
petitioner filed a letter construed as a supplement to his claims. Petitioner seeks review of claims
he purportedly raised before the Oregon Court of Appeals, including: 1) violation of the Ex Post
Facto Clause; 2) his dangerous offender evaluation is not part of the court record; 3) the trial
court failed to follow statutory requirements; 4) his sentence is illegal; 5) consecutive sentences
are outside of the sentencing guidelines; and 6) the dangerous offender statute is
unconstitutional. (ECF No. 41) The first and second claims he cites were raised before the
Oregon Court of Appeals and are included in his habeas petition. However, the remaining claims
challenge his original sentence and cannot be raised in this proceeding. In this habeas action,
petitioner challenges the action of the Board in deferring his parole-consideration elate. The
4 - OPINION AND ORDER
In support of Ground One, petitioner does not eite a specific federal constitutional or
federal law violation. Instead, petitioner relies solely on state law in arguing that the Board's
decision was not supported by evidence and failed to comply with Oregon statutory
requirements. However, federal habeas relief is not available to remedy alleged violations of
state law. Accordingly, relief on Ground One is denied. See Estelle v. JvfcGuire, 502 U.S. 62, 67
(1991) (reiterating that "federal habeas corpus relief does not lie for errors of state law").
In Ground Two, petitioner contends that the Board's reliance on § 144.228(1)(b) and
Rule 255-062-0016- both enacted after the commission of his offenses - exposed him to greater
punishment by authorizing extended deferments of parole-consideration hearings based on
factors that were not enumerated when petitioner committed his crimes. Respondent maintains
that petitioner's claim was not fairly presented to the Oregon courts and is barred by procedural
default. Respondent also argues that the claim fails on the merits. Regardless of procedural
default, I agree that petitioner's claim fails on the merits. 28 U.S.C. § 2254(b)(2).
To establish an ex post facto claim, petitioner must show that the Board's retroactive
application of § 144.228(1 )(b) and Rule 255-062-0016 "created a 'sufficient risk' of increasing
the punishment attached to [petitioner's] crimes." Himes v. Thompson, 336 F.3d 848, 854 (9th
Cir. 2003) (citing Weaver v. Graham, 450 U.S. 24, 29, (1981) and Cal. Dep't of Corr. v.
1\1orales, 514 U.S. 499, 509 (1995)); see also Garner v. Jones, 529 U.S. 244, 251 (2000) (a
retroactive procedural change violates the Ex Post Facto Clause when it "creates a significant
risk of prolonging [an inmate's] incarceration."). A "speculative" or "attenuated" risk of
prolonged incarceration is insufficient to establish a violation of the Ex Post Facto Clause.
1\1orales, 514 U.S. at 509.
legality of his underlying sentence is not at issue, and any challenge to his 1989 sentence is likely
time-barred. Therefore, the court confines its discussion to the grounds raised in his petition.
5 - OPINION AND ORDER
At the time of petitioner's offenses, § 144.228(1)(b) generally provided that parole
consideration reviews would be conducted "at least once every two years until the condition is
absent or in remission, at which time release on parole shall be ordered." The statute afforded the
Board no discretion to postpone or defer such hearings. In 2009, the Oregon Legislature
amended the statute and authorized the Board to defer parole consideration hearings for up to ten
years if the Board finds that the prisoner remains dangerous and that "it is not reasonable to
expect that the prisoner would be granted a release date before the subsequent hearing." Or. Rev.
Stat.§ 144.228(1)(b)(A). Rule 255-062-0016, promulgated in 2009, enumerates a non-exclusive
list of factors that the Board may use in determining that "it is not reasonable to expect that the
inmate would be granted a firm release date before the encl of a specified deferral period."
Petitioner argues that the Board's reliance on amended § 144.228(1 )(b) significantly
risked increasing his punishment because he now must wait five or even up to ten years for a
parole-consideration hearing. Petitioner also emphasizes that the Board cited Rule 255-0620016(2), (4), and (6) in deferring his parole consideration hearing for five years, and that factors
(4) and (6) were not enacted at the time of his offense. 2 In other words, petitioner argues that
these are "new" factors petitioner "could not possible have known about or abided by at the time
he committed a punishable offense." Pet. 's Br. at 9.
Petitioner's argument has been rejected by both the Supreme Court and the Ninth Circuit.
In Garner, the Supreme Court rejected an ex post facto claim based on similar facts, declaring,
"it is difficult to see how the Board increased the risk of his serving a longer time when it
decided that its parole review should be exercised after an 8-year, not a 3-year, interval." 529
These factors are the "inmate's failure to demonstrate understanding of the factors that
led to his/her criminal offense," and the "inmate's demonstrated lack of effort to address criminal
risk factors of substance abuse problems." Or. Admin. R. 255-062-0016(4),(6).
6 - OPINION AND ORDER
U.S. at 255. The Court emphasized that that the parole board had broad discretion to determine
the reconsideration period for parole review and allowed expedited reviews under changed
circumstances. Id. at 254-55. Likewise, in 1\1orales, the Supreme court rejected an ex post facto
challenge based on a statutory amendment that changed the frequency of parole reconsideration
from every year to up to three years. A1orales, 514 U.S. at 503. The Court found that the
amendment did not increase the applicable sentencing range for an offense, did not change the
dates of initial parole hearings, and did not change the standards to determine parole eligibility.
Id. at 507. Rather, the amendment simply "introduced the possibility that after the initial parole
hearing, the Board would not have to hold another hearing the very next year, or the year after
that, if it found no reasonable probability that respondent would be deemed suitable for parole in
the interim period." Id.
Finally, the Ninth Circuit held that a statutory amendment eliminating biennial reviews of
dangerous offender status for certain inmates was not an ex post facto violation. See Scott v.
Baldwin, 225 F.3d 1020, I 022-23 (9th Cir. 2000). The Ninth Circuit found that while the
elimination of biennial review might have disadvantaged the petitioner, "such disadvantage is
offset by the provision allowing him to apply for a hearing at any time." kl at 1022. The court
further noted that the risk of increased punishment was "too speculative." Id. at 1023; see also
Guzek v. Felton, No. 3:1 l-cv-00749-AA, 2013 WL 1213330, at *4 (D. Or. Mar. 18, 2013) ("the
most significant change enacted by the 2009 amendments to ORS 144.228 - the shift from the
former two-year maximum review interval to the current ten-year maximum review interval complies with recent Supreme Court and Ninth Circuit precedent").
Here, as in 1\1orales, application of § 144.228(b) had no effect on the punishment
attached to petitioner's crimes or the standards for determining parole eligibility. Likewise, Rule
- OPINION AND ORDER
255-062-0016 factors do not increase the punishment for an offense or affect eligibility for
parole. Instead, they are factors considered by the Board when determining whether and how
long to defer parole consideration. Finally, the Board may set a shorter interval between parole
consideration hearings and in this case allowed petitioner to request a review after two years. Or.
Admin. R. 255-062-0021 (! ). "This provision, along with the requirement that the Board grant
such a hearing if there is a reasonable cause to believe that the prisoner is no longer dangerous,
makes the ... amendments merely procedural." Scott, 225 F.3d at I 022. While extended
deferment "might create some speculative, attenuated risk of affecting (petitioner]'s actual term
of confinement by making it more difficult for him to make a persuasive case for early release, ..
. that fact alone cannot end the matter for ex post fi1cto purposes." lvforales, 514 U.S. at 508-09.
Therefore, the deferral of petitioner's parole consideration does not pose a significant risk
of increasing the punishment for petitioner's offenses and is not an ex post facto violation.
The Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED. A Certificate of
Appealability is denied on the basis that petitioner has not made a substantial showing of the
denial ofa constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Dated this~ day of July, 2017.
(1 ... ~
United States District Judge
- OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?