Jenkins v. Board of Parole and Post-Prison Supervision

Filing 39

OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus 6 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 7/28/19 by Judge Michael H. Simon. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL W. JENKINS,
Case No. 2:17-cv-00375-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.

this

habeas

corpus

case pursuant

to

28

§ 2254 challenging the legality of a 2013 decision by the

Oregon Board of Parole and Post-Prison Supervision ("Board"). For
the reasons that follow,

the Amended Petition for Writ of Habeas

Corpus (#6) is denied.
BACKGROUND

On December 17, 1979, Petitioner was convicted of Attempted
Murder and sentenced to 20 years in prison. On February 11, 1980,
Petitioner was convicted of Robbery I and sentenced to 20 years
in prison,
sentence.

to be served consecutively to the Attempted Murder
On

July

Kidnapping I,

30,

Sodomy I,

1980,

Petitioner

Robbery III,

was

convicted

of

and two counts of Rape I,

all of which resulted in the imposition of 63 years in prison to
be served consecutively to the aforementioned sentences. All of
these sentences were of an indeterminate nature because they were
imposed pursuant to Oregon's old matrix scheme

(which ended in

1989).
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
March 5, 2013,
matrix

matrix

On

the Board paroled Petitioner from the last of his

sentences.

incarcerated

indeterminate matrix sentences.

Despite

because

sentences

to

the

the

Board

the

sentence.
2 - OPINION AND ORDER

parole,
paroled

service

of

Petitioner
him

his

directly
15-month

remained
from

his

guidelines

On May 28,

2013,

Petitioner struck another prisoner in the

face causing a minor injury in violation of institutional Rule
2.06.02

(Assault II).

The Board considered this a violation of

Petitioner's parole condition to "obey all laws"

and on August

20, 2013, revoked his parole from the matrix sentences. The Board
held a Future Disposition Hearing on December 11, 2015 wherein it
imposed

a

15-year

violation.

prison

Petitioner

term

sought

as

a

sanction

administrative

for

the

review

parole

from

the

Board, which it denied. The Oregon Court of Appeals affirmed the
Board's

decision

without

issuing

a

Oregon Supreme Court denied review.

and

Post-Prison

Supervision,

282

written

opinion,

Jenkins v.

Or.

App.

and

the

Board of Parole

369,

385

P.3d

684

(2016); rev. denied, 361 Or. 100, 391 P.3d 135 (2017).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on
March 6,

2017,

and the Court appointed counsel to represent him

the following month.

With the assistance of counsel,

Petitioner

argues that the Board never actually paroled him, thus it lacked
jurisdiction to revoke his parole and impose a 15-year sanction. 1
Respondent asks the Court to deny relief on the basis that the
Board's

actions

were

neither contrary to,

unreasonable application of,

nor

amounted

to an

clearly established Supreme Court

precedent.

Ill
Ill
1 To the extent that the prose Petition raises additional claims not argued
here, Petitioner has failed to sustain his burden of proof on them. See Silva
v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of
proving his claims).

3 - OPINION AND ORDER

DISCUSSION
I.

Standard of Review

An application for a writ of habeas

corpus shall

not be

granted unless adjudication of the claim in state court resulted
in

a

decision

that

was:

(1)

"contrary

to,

or

involved

an

unreasonable application of, clearly established Federal law, as
determined
(2)
of

by

the

Supreme

Court

of

the

United

States;"

or

''based on an unreasonable determination of the facts in light
the

evidence presented in the State court proceeding."

28

U.S.C. § 2254(d). A state court's findings of fact are presumed
correct,

and

Petitioner

bears

the

burden

of

rebutting

the

presumption of correctness by clear and convincing evidence.
U.S.C.

§

28

2254 (e) (1).

A state

court

decision

established precedent

if

is

the

"contrary

clearly

to

state court applies

a

rule

that

contradicts the governing law set forth in [the Supreme Court's]
cases" or "if the state court confronts a set of facts that are
materially

indistinguishable

from a

decision of

[the

Supreme]

Court and nevertheless arrives at a result different from [that]
precedent."
Under

the

Williams

v.

Taylor,

529

"unreasonable application"

U.S.

362,

clause,

a

405-06

(2000).

federal

habeas

court may grant relief "if the state court identifies the correct
governing legal principle from

[the Supreme Court's]

but

principle

unreasonably

prisoner's
clause

case."

requires

applies

that

at

413.

Id

the

state

The

court

to

the

facts

"unreasonable
decision

to

decisions
of

the

application"
be

more

than

incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d)
4 - OPINION AND ORDER

"preserves authority to issue the writ in cases where there is no
possibility

fairminded

jurists

could

disagree

that

the

state

court's decision conflicts with [the Supreme] Court's precedents.
It goes

no

farther."

86,

102

on

the

merits but provides no reasoning to support its conclusion,

the

Harrington

v.

562 U.S.

Richter,

(2011).
When,

as

here,

a

state

court

reaches

a

decision

federal habeas court must conduct an independent review of the
record to determine whether the state court clearly erred in its
application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976,
982

(9th Cir.

2000).

In such an instance,

although the

court

independently reviews the record, it still lends deference to the
state court's ultimate decision and can only grant habeas relief
if

the

state

Harrington v.

court's

decision

was

Richter, 562 U.S. 86,

98

objectively

unreasonable.

(2011); Pirtle v. Morgan,

313 F.3d 1160, 1167 (9th Cir. 2002).
II.

Analysis

According to Petitioner,

because he was

his matrix sentences directly to his

transitioned from

guidelines

sentence,

the

Board relinquished jurisdiction over him (and left him under the
jurisdiction of the Oregon Department of Corrections)

such that

he never became a parolee. He reasons that Oregon state law only
permitted the Board to impose enforceable parole conditions on
him once it released him from custody altogether. 2 He therefore

2

With respect to the parole conditions that the Board imposed upon him,
Petitioner posits that the conditions served only informational and tracking
purposes in the absence of his release.

5 - OPINION AND ORDER

concludes that where the Board was without jurisdiction over him,
its

parole

revocation

and

subsequent

imposition

of

a

15-year

sanction violate his right to due process of law.
Petitioner's argument hinges upon his contention that, as a
matter

of

state

law,

he

was

never

actually

paroled

and

was

therefore not subject to the jurisdiction of the Board. The Board
rejected

these

arguments

during

administrative

Petitioner's

review, and although Petitioner presented these state-law issues
to the Oregon Court of Appeals and the Oregon Supreme Court in
detail, those courts implicitly disagreed with his interpretation
of

state

law

administrative
Respondent's

when

they

ruling. 3

Exhibits

declined

Respondent's

105,

110-112.

to

overturn

Exhibit
State

the

103,

Board's

pp.

344-347;

court determinations

such as these are binding in federal habeas corpus proceedings. 4

See

Estelle

v.

McGuire,

502

U.S.

62,

67-68

(1991)

( " [W] e

reemphasize that it is not the province of a federal habeas court
to

reexamine

state-court

determinations

on

state-law

questions."). Accordingly, where state law permitted the Board to
parole

Petitioner

directly

from

his

matrix

sentences

to

his

guidelines sentence without releasing him from custody, and where
3

Although there is no written judicial opinion to review, Oregon's state
courts could not have agreed with Petitioner's position that the Board had no
jurisdiction over him as a matter of state law yet upheld the revocation of
parole and imposition of a 15-year sanction,
4 Even if it were proper to reexamine these state-law issues, the Oregon Court
of Appeals had determined two years prior to Petitioner's parole revocation
that the Board could properly parole a prisoner directly from indeterminate
sentences to a guidelines sentence and retain jurisdiction over him until the
expiration of the indeterminate sentences. Shelby v. Board of Parole, 244 Or.
App. 348, 352-54, 260 P.3d 682 (2011). Accordingly, Petitioner's contention
that his jurisdictional argument is clearly established in Oregon is not
supported.

6 - OPINION AND ORDER

no U.S. Supreme Court precedent provides to the contrary,

habeas

corpus relief is not appropriate.
CONCLUSION

For the reasons identified above,

the Amended Petition for

Writ of Habeas Corpus (#6) 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).

IT IS SO ORDERED.

I

DATED this

2/D

1~-

day of

Mi2'hael H. Simon
United States District Judge

7 - OPINION AND ORDER