Crabtree v. Washburn
OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 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 8/1/2022 by Judge Marco A. Hernandez. (Deposited in outgoing mail to pro se party on 8/2/2022.) (dsg)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHAWN ANDREW CRABTREE,
Case No. 2:21-cv-00284-HZ
OPINION AND ORDER
Shawn Andrew Crabtree
Eastern Oregon Correctional Institution
Pendleton, OR 97801-9699
Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General
Nick M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
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HERNANDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging the legality of a decision by the
dated May 16, 2017. For the reasons that follow, the Petition
for Writ of Habeas Corpus (#2) is denied.
discovered in a remote area of Estacada, and the Oregon State
investigation, on September 12, 1997, Petitioner entered a nocontest plea to murder. Consistent with ORS 163.115(5) (1995),
the trial court sentenced him to an indeterminate life sentence
possibility of parole
once he completed serving
years in prison. Respondent’s Exhibit 101, p. 21.
On May 16, 2017, the Board issued its first Board Action
Form in which it advised Petitioner that he would be eligible
for a “murder review hearing” on or after April 26, 2021. It
explained, “Any time after 25 years from the beginning of his
shall hold a hearing to determine if the prisoner is likely to
Respondent’s Exhibit 103, p. 30.
On the same day the Board issued Board Action Form #1,
Petitioner filed for administrative review. He claimed that the
Board did not have legal authority over his release because,
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pursuant to the sentencing statutes in place at the time he
committed his crime, his release was automatic after 25 years in
Petitioner took a judicial review of this denial, but the Oregon
Court of Appeals affirmed the Board’s decision without issuing a
Crabtree v. Board of Parole and Post-Prison Supervision, 301 Or.
App. 636, 454 P.3d 857 (2019), rev. denied 366 Or. 382, 462 P.3d
On February 22, 2021, Petitioner filed his Petition for
(1) Although Petitioner committed his crime
in 1996, the Board retroactively applied the
1999 version of ORS 163.115 and Oregon
significantly increase the length of his
(2) The Board violated the Ex Post Facto
Clause of the U.S. and Oregon Constitutions
when it retroactively applied the 1995
version of ORS 163.115 to his sentence, a
statute that was ambiguous and was not
judicially validated until 1998, thereby
effectively subjecting him to a harsher
sentence than the one to which the trial
court had sentenced him; and
(3) The Board violated the Ex Post Facto
Clauses of the U.S. and Oregon Constitutions
administrative interpretation of sentencing
possibilities to recompute his sentence to
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require life imprisonment with
possibility of release on parole.
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Petition for Writ of Habeas Corpus (#2), pp. 1-4. Respondent
asks the Court to deny relief on the Petition because Petitioner
review, and because the Board did not unreasonably apply clearly
established federal law when it denied relief on Ground Two.
Exhaustion and Procedural Default
presenting them to the state's highest court, either through a
direct appeal or collateral proceedings, before a federal court
will consider the merits of those claims. Rose v. Lundy, 455
U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies
courts a meaningful opportunity to consider allegations of legal
error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004)
(quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).
If a habeas 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 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).
In this respect, a petitioner is deemed to have "procedurally
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procedural rule, or failed to raise the claim at the state level
procedurally defaulted a claim in state court, a federal court
will not review the claim unless the petitioner shows "cause and
prejudice" for the failure to present the constitutional issue
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).
When Petitioner filed for judicial review of the Board’s
Oregon Court of Appeals in which he raised a single claim. He
asserted that at the time he murdered his wife in 1996, “thenexisting case law had declared the sentence for murder to be 25
supervision. Then, in 1998, a court decision announced that the
sentence for murder was an indeterminate life sentence with a
minimum of 25 years’ imprisonment.” Respondent’s Exhibit 104,
indeterminate life sentence violated his right to be free from
ex post facto punishment. This claim corresponds to Ground Two
of the Petition for Writ of Habeas Corpus. Because Petitioner
did not raise the claims within Grounds One or Three during his
judicial appeal, he failed to fairly present those issues to
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Oregon’s state courts. Because the time for doing so passed long
ago, the claims are now procedurally defaulted.
Standard of Review
An application for a writ of habeas corpus shall not be
granted unless adjudication of the claim in state court resulted
unreasonable application of, clearly established Federal law, as
light of the evidence presented in the State court proceeding."
presumed correct, and Petitioner bears the burden of rebutting
the presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
established precedent if the 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." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause, a federal habeas
decisions but unreasonably applies that principle to the facts
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application" clause requires the state court decision to be more
§ 2254(d) "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." Harrington v. Richter, 562 U.S.
86, 102 (2011).
When, as here, a state court reaches a decision on the
merits but provides no reasoning to support its conclusion, the
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
federal court independently reviews the record, it still lends
deference to the state court's ultimate decision and will only
objectively unreasonable. Richter, 562 U.S. at 98; Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Oregon Supreme Court determined that Oregon’s enactment of its
indeterminate life sentence for murder set forth in the 1993
because it found it difficult to reconcile the indeterminate
life sentence required by the statute with the 120 to 269-month
determinate sentence required for the same crime under the new
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sentencing guidelines. State v. Morgan, 316 Or. 553, 856 P.2d
remanded for imposition of determinate terms followed by postprison supervision for life.” State v. Francis, 154 Or. App.
486, 489, 962 P.2d 45 (1998), rev. denied, 327 Or. 554 (1998).
In 1995, one year before Petitioner committed his crime,
the Oregon Legislature amended and renumbered ORS 163.115. The
1995 amendment provided that a person (at least 15 years of age)
indeterminate sentence of life with the possibility of parole
only after serving 25 years in custody. ORS 163.115(5) (1995).
address the validity of ORS 163.115(5) (1995). In Francis, the
defendant committed a murder in 1996 leading to an indeterminate
life sentence with the possibility of parole after 25 years
based on ORS 163.115(5) (1995). The defendant argued that his
inconsistent with the Oregon Supreme Court’s decision in Morgan.
expressing an intent to impose an indeterminate life sentence
for murder and having “the effect of reviving and reenacting ORS
163.115(5)(a).” Francis, 154 Or. App. at 491.
As Ground Two, Petitioner alleges that the Board violated
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retroactively applied the Francis holding to him.1 The claim he
preserved for federal habeas corpus review, is that at the time
he committed his murder the Oregon Supreme Court had declared
the indeterminate life sentence portion of ORS 163.115 to be
invalid. He reasons that it was not until 1998, when the Oregon
Court of Appeals “validated” the Legislature’s 1995 amendment in
Francis, that he was put on notice that he could be subject to
the indeterminate life sentence he is currently serving.
The Ex Post Facto Clause prohibits states from enacting
laws which, by retroactive operation, increase the punishment
for a crime after its commission. Garner v. Jones, 529 U.S. 244,
250 (2000). A law violates the Ex Post Facto Clause if: (1) it
"appl[ies] to events occurring before its enactment," Weaver v.
Graham, 450 U.S. 24, 29 (1981); and (2) "produces a sufficient
risk of increasing the measure of punishment attached to the
covered crimes." Calif. Dep't. of Corr. v. Morales, 514 U.S.
499, 504 (1995). There is no ex post facto violation if it
increasing the measure of punishment attached to the covered
crimes." Id at 513.
163.115(5) (1995) specifically provided for a life sentence with
the possibility of parole after 25 years; it did not, by its
terms, purport to impose a determinate 25-year sentence. The
Petitioner’s claim that the Board’s conduct violated the Oregon Constitution
is not cognizable in a federal habeas corpus case. See 28 U.S.C. § 2254(a).
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intent of this statute was clear, and the 1993 Morgan decision
did not serve to invalidate a statute the Oregon Legislature had
not yet passed into law. “Whether or not the old statute would
indicated [Oregon’s] view of the severity of murder and of the
degree of punishment which the legislature wished to impose upon
murderers.” Dobbert v. Florida, 432 U.S. 282, 297 (1977). ORS
163.115(5) (1995) therefore “provided fair warning as to the
degree of culpability which the State ascribed to the act of
possibility of parole after 25 years aligns with the sentence
contemplated by ORS 163.115(5) (1995) and imposed by the trial
court, his Ground Two claim lacks merit. Accordingly, upon an
denying relief on this claim is neither contrary to, nor an
unreasonable application of, clearly established federal law.
For the reasons identified above, the Petition for Writ of
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.
August 1, 2022
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Marco A. Hernandez
United States District Judge
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