Jenkins v. Amsberry
Filing
53
OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus (# 14 ) 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). Signed on 11/13/2019 by Judge Michael H. Simon. (joha)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL W. JENKINS,
Case No. 2:16-cv-02314-SI
Petitioner,
OPINION AND ORDER
v.
BRIGITTE AMSBERRY,
Respondent.
Anthony D. Bornstein
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
SIMON, District Judge.
Petitioner brings
u. s. c.
2254
§
this habeas corpus case pursuant to 28
challenging the
legality of
a
decision by the
Oregon Board of Parole and Post-Prison Supervision ("Board")
revoke
his
reasons
parole
that
and
follow,
impose
a
180-month
sanction.
For
to
the
the Amended Petition for Writ of Habeas
Corpus (#14) is denied.
BACKGROUND
In three
separate
criminal cases
in 1979 and 1980,
the
Multnomah County Circuit Court sentenced Petitioner to lengthy
sentences
for
sentences
were
a
variety
of
an
of
criminal
indeterminate
conduct.
nature
All
because
imposed pursuant to Oregon's old matrix scheme
of
these
they
were
(which ended in
1989). The Board established a projected parole release date of
March 5, 2013.
While Petitioner was serving his indeterminate sentences, he
was
convicted
in
Marion
County
of
supplying
contraband
and
sentenced to 15 months in prison as a guidelines sentence, to be
served consecutively to his indeterminate matrix sentences. As a
result, when the Board paroled him on March 5, 2013, it did not
release him from custody and, instead, paroled him to the service
of his indeterminate 15-month sentence.
While
serving
his
15-month
sentence,
Petitioner
struck
another inmate. This prompted the Board to revoke his parole and
set a future disposition hearing for December 11,
2013. At the
future
a
disposition
hearing,
2 - OPINION AND ORDER
the
Board
imposed
180-month
sanction based upon Petitioner's parole violation established a
new projected release date of August 26, 2018.
Petitioner
availed
himself
of
the
administrative
appeal
procedure, but the Board denied relief. Respondent's Exhibit 102,
pp. 4-5. Petitioner then filed a judicial appeal, but the Oregon
Court of Appeals affirmed the Board's decision without issuing a
written opinion,
Jenkins v.
App. 447,
and
the
Oregon Supreme
Court
denied review.
Board of Parole and Post-Prison Supervision,
379 P.3d 854,
rev.
denied,
360 Or.· 422,
248 Or.
392 P.3d 321
(2016).
On December 12,
2016,
Petitioner filed this habeas corpus
case. With the assistance of appointed counsel, Petitioner filed
his Amended Petition on May 30,
2017
wherein he
alleges
two
grounds for relief:
1.
The Board violated Petitioner's right to
due process when it exercised authority it
did not have to revoke Petitioner' s parole
and impose a 180-month sanction; and
2.
The Board violated Petitioner's right to
due process when it arbitrarily applied
Oregon's parole statutes and rules to revoke
his parole and impose the 180-month sanction.
Respondent
asks
the
Court
to deny relief
on the Amended
Petition because Petitioner failed to adequately preserve these
claims for federal habeas corpus review.
DISCUSSION
A
habeas
petitioner
must
exhaust
his
presenting them to the state's highest court,
claims
by
fairly
either through a
direct appeal or collateral proceedings, before a federal court
3 - OPINION AND ORDER
will consider the merits of those claims. Rose v. Lundy, 455 U.S.
509,
519
(1982).
"As a general rule,
a petitioner satisfies the
exhaustion requirement by fairly presenting the federal claim to
the appropriate state courts . . . in the manner required by the
state courts,
thereby
'affording the state courts a meaningful
opportunity to consider allegations of legal error.
Moore, 386 F.3d 896, 915-916 (9th Cir. 2004)
Hillery, 474 U.S. 254, 257,
If a
habeas
111
Casey v.
(quoting Vasquez v.
(1986)).
litigant failed to present his claims to the
state courts in a procedural context in 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. Edwards v. Carpenter, 529 U.S. 446,
453
this
(2000);
Castille v.
respect,
defaulted"
his
a
Peoples,
petitioner
claim
if
he
is
489 U.S.
deemed
failed
to
346,
to
351
have
comply
(1989).
In
"procedurally
with
a
state
procedural rule, or failed to raise the claim at the state level
at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson,
501
U.S.
722,
750
(1991).
If
a
petitioner
has
procedurally
defaulted a claim in state court, a federal court will not review
the claim unless the petitioner shows
the
failure
to
present
the
II
cause and prejudice II for
constitutional
issue
to
the
state
court, or makes a colorable showing of actual innocence. Gray v.
Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S.
333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
During his judicial appeal,
Petitioner argued that because
his "release to parole" was actually a transfer to the service of
4 - OPINION AND ORDER
another prison sentence, he was not subject to any conditions of
supervision such that the Board lacked authority to revoke his
parole. He further argued that even if this was not the case, the
Board
unreasonably
revoked
his
parole
given
the
specific
circumstances of his violation. However, Petitioner argued these
claims only as issues of state law in both his Appellant's Brief
and Petition for Review. Respondent's Exhibit 106, 108.
Petitioner acknowledges that he failed to fairly present his
due process claims in state court, but asserts that it would have
been
futile
to
do
so
because
he
had
unsuccessfully
raised
essentially identical claims in the federal due process context
during
his
state
court
proceedings
underlying
Jenkins
v.
Amsberry, Case No. 2:17-cv-00375-SI. "If a defendant perceives a
constitutional
claim
and
believes
it
may
find
favor
in
the
federal courts, he may not bypass the state courts simply because
he thinks they will be unsympathetic to the claim. Even a state
court that has previously rejected a constitutional argument may
decide, upon reflection, that the contention is valid."
Isaac,
456
U.S.
107,
130
(1982).
Accordingly,
Engle v.
Petitioner's
failure to failure present his claims, and resulting procedural
default,
are
procedurally
not
excused.
defaulted
Because
claims,
he
Petitioner
is
not
presents
entitled
to
only
habeas
corpus relief. 1
Ill
Ill
Even if Petitioner had fairly presented his claims, he would not be entitled
to relief for the reasons identified in this Court's Opinion in Jenkins v.
Amsberry, Case No. 2:17-cv-00375-SI.
1
5 - OPINION AND ORDER
CONCLUSION
For the reasons identified above,
Writ of Habeas
Corpus
(#14)
the Amended Petition for
is denied.
The Court declines
to
issue a Certificate of Appealability on the basis that petitioner
has
not
made
a
substantial
showing
constitutional right pursuant to 28
u.s.c.
of
the
denial
of
§ 2253(c) (2).
IT IS SO ORDERED.
DATED this
('3
fJ.-
day of
Mi hae
. Simon
United States District Judge
6 - OPINION AND ORDER
a
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