Dawson v. Belleque
Filing
85
OPINION AND ORDER. Petitioner's second amended petition 53 , and motion for summary judgment 70 are DENIED. This proceeding is DISMISSED, with prejudice. A certificate of appealability is GRANTED as to both grounds for relief. See 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. Signed on 6/25/2012 by Judge Garr M. King. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CRAIG THOMAS DAWSON,
Petitioner,
3:06-cv-00012-KI
OPINION AND ORDER
v.
BRIAN BELLEQUE,
Respondent.
Ryan Scott
1549 SE Ladd Avenue
Portland, Oregon 97214
Attorney for Petitioner
John R. Kroger
Attorney General
Carolyn Alexander
Senior Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301-4096
Attorneys for Respondent
KING, Judge
Petitioner brings this habeas corpus proceeding pursuant to 28
U.S.C. § 2254, alleging that his current confinement violates the
1 -- OPINION AND ORDER
Ex Post Facto Clause of the U.S. Constitution.
For the reasons set
forth below; petitioner's second amended petition (#53) is denied,
and this proceeding is dismissed, with prejudice.
BACKGROUND
The factual history in this case is lengthy.
Because neither
party provided a complete and accurate factual background, I have
reviewed the exhibits submitted by the parties to piece together an
accurate history as set forth below.
• Petitioner's Original Commitment
On May 30,
1985,
petitioner
shooting him in the stomach.
killed Jerry Edwin Abeene,
Resp. Exhs. 101 & 102.
by
On October 9,
1985, following a stipulated facts trial, petitioner was convicted
of murder and sentenced to a term of life imprisonment.
Resp. Exh.
101.
On February 12,
Prison Supervision
198 6,
the Oregon Board of Parole and Post-
("Board")
held a prison term hearing at which
time the Board set petitioner's prison term at 120 months
(based
upon a criminal history/risk score of 11, a crime category 7, and
a matrix range of 96 to 120 months incarceration),
release date of May 30,
1995.
from case 6: 00-cv-1396-TC)
Resp.
at 40.
Supp.
Exh.
and a parole
113
(originally
On the relevant Board Action
Form ("BAF"), petitioner's good time date is listed as "LIFE", and
petitioner's prison term expiration date is listed as "LIFE".
2 -- OPINION AND ORDER
Id.
On October 20, 1988, the Board held a personal review hearing,
and advanced petitioner's parole date by seven months to October
30, 1994.
Id. at 42.
On the BAF, petitioner's projected good time
date is listed as August 3, 1996, and petitioner's projected prison
term expiration date is April 4, 2003.
Id. at 41.
On November 29,
1991, the Board held a second personal review hearing, and advanced
petitioner's parole release date by an additional five months to
May 3 0,
Review
See Id.
19 9 4 .
Response
#2) . 1
at 113-14
(BAF #4)
Petitioner's
good
&
117
time
(Administrative
and
prison
term
expiration dates are left blank on this form.
On November 17, 1992, the Board issued Administrative Review
Response
(ARR)
inmate's
[decision]
#3, withdrawing the prior two BAFs,
request
ff2
to
be
considered
under
"based on the
[the]
'Williams'
However, the Board proceeded to grant the same 12-
month reduction, again setting petitioner's parole release date on
May 30, 1994.
Resp. Supp. Exh. 113 at 49.
1
Attending the November, 1991 hearing, pursuant to Ballot
Measure 10, were the victim's wife, sister, and friend.
Petitioner appealed the Board's 1991 order, contending that the
Board applied O.R.S. 144.120(7), enacted in 1986 as part of
Ballot Measure 10 (Or.Laws 1987, ch. 2, § 14), to allow the
victims' representatives to attend and testify at the hearing.
The Oregon Court of Appeals rejected petitioner's challenge,
holding that "the impact of Ballot Measure 10, as applied in this
case, merely expands the flexibility of post-conviction processes
available to the state." Dawson v. Bd. of Parole and Post-Prison
Supervision, 123 Or. App. 619, 622, 860 P.2d 878 (1993)
2
443
See Williams v. Bd. of Parole, 107 Or. App. 515, 812 P.2d
(1991)
3 -- OPINION AND ORDER
On September 8, 1993, the Board held another personal review
hearing, advancing petitioner's parole release date by five months
to December 30,
1993,
parole supervision.
and setting a minimum 36-month period of
The Board's holding is memorialized in BAF #5:
A POSITIVE RECOMMENDATION FROM THE INSTITUTION FOR A
REDUCTION FOR THE PERIOD UNDER REVIEW PURSUANT TO OAR
255-40-025(1) HAS BEEN RECEIVED
ESTABLISHING A
RELEASE DATE OF 12/30/1993 FOLLOWING 103 MONTHS.
* * * * *
MINIMUM PERIOD OF PAROLE SUPERVISION IS TO BE 36 MONTHS.
DISCHARGE OF PAROLE PRIOR TO SENTENCE EXPIRATION DATE
DEPENDS UPON APPROVAL BY THE BOARD OF PAROLE FOLLOWING A
FAVORABLE RECOMMENDATION FROM THE PAROLE OFFICER.
Resp. Exh. 103 at 2.
On BAF #5, petitioner's projected good time
date is listed as April 11, 1996, and his sentence expiration date
is December 10, 1997.
On November
16,
Id. at 1.
1993,
the
Board issued
BAF
#6,
modifying
petitioner's conditions of parole to prohibit him from entering
Lane County.
BAF #6 specifies that petitioner's 36-month term of
parole supervision is set pursuant to 1993 law, i.e., Senate Bill
139 and O.A.R. 255-93-000:
THE MINIMUM PERIOD OF SUPERVISION PURSUANT TO OAR 255-93000
(SB 139)
SHALL BE:
* * * MINIMUM 36 MONTHS
SUPERVISION FOR . . . MURDER . . . UPON COMPLETION OF THE
MINIMUM PERIOD OF SUPERVISION, THE SUPERVISING OFFICER
MAY SUBMIT A FAVORABLE RECOMMENDATION THAT YOU BE ALLOWED
TO GO ON UNSUPERVISED STATUS.
THE BOARD WILL MAKE THE
FINAL DECISION. IF ALLOWED TO GO ON UNSUPERVISED STATUS,
YOU WILL REMAIN ON SUCH STATUS UNTIL THE EXPIRATION OF
YOUR SENTENCE UNLESS YOU ARE RE-ACTIVATED DUE TO NEW
CRIMINAL ACTIVITY OR SOME OTHER REASON WARRANTING REACTIVATION OF SUPERVISION.
4 -- OPINION AND ORDER
Resp. Supp. Exh. 113 at 65 (emphasis added); see O.A.R. 255-93-000
(providing that a minimum 3-year period of supervised parole shall
be imposed for offenders sentenced for murder)
8/18/93 & perm. eff. date 10/15/93).
time
date
is
extended
to
July
sought
eff.
date
On BAF #6, petitioner's good
27,
2003,
expiration date is November 25, 2010.
Petitioner
(temp.
administrative
and
his
prison
term
Id. at 64.
review
of
BAF
#6.
On
December 1, 1993, the Board issued ARR #4, rejecting petitioner's
appeal under 1993 law:
TECHNICALLY, A LIFE SENTENCE MEANS POTENTIAL SUPERVISION
FOR LIFE. PREVIOUSLY, STATED PERIODS OF SUPERVISION, IN
YOUR CASE ONE YEAR, HAVE ONLY BEEN MINIMUM PERIODS.
AS OF AUGUST 1993, SB139 AUTHORIZES A MINIMUM PERIOD OF
THREE YEARS SUPERVISION FOR PERSONS CONVICTED OF MURDER.
WHEN YOU SUCCESSFULLY COMPLETE A THREE YEAR PERIOD, YOUR
PAROLE OFFICER MAY RECOMMEND TO THE BOARD THAT YOUR
PAROLE BE DISCHARGED.
Resp.
Supp. Exh.
113 at 66
(emphasis added).
Petitioner did not
seek judicial review of that decision.
• Petitioner's Release on Parole
On December 30, 1993, petitioner was released on parole.
Id.
at 60.
The Order of Parole provides for 36 months supervision,
with
expiration
an
date
of
December
expiration date of November 24,
2499.
28,
Id.
1996,
and
a
sentence
The Order of Parole
further provides that "[d]ischarge of parole prior to the sentence
expiration date is contingent upon approval by the Board of Parole
and payment in full of any money owing, pursuant to OAR 255-90 &
5 -- OPINION AND ORDER
255-92".
Petitioner's
parole
supervision
was
extended,
effective March 28, 1996, in an order which provides as follows:
UPON REVIEW OF THE REQUEST FOR DISCHARGE AND THE
PAROLEE'S FILE, THE BOARD HAS CHOSEN NOT TO APPROVE
DISCHARGE.
PLEASE HAVE THE PAROLEE SIGN A WAIVER
ALLOWING THE BOARD TO EXTEND THE TENTATIVE DISCHARGE
DATE, OR INITIATE A HEARING AT WHICH THE PAROLE MUST SHOW
CAUSE WHY THE TENTATIVE PAROLE DISCHARGE DATE SHOULD NOT
BE EXTENDED.
Dawson has a life long history of mental and emotional
problems. Although he has made progress, the Board feels
continued supervision is in Dawson's and the communities
[sic] best interest.
Id. at 58-59.
Petitioner's sentence expiration date on that form
is listed as January 1, 2499.
Id.
• Revocation of Parole
On or about April 19, 1996, petitioner was arrested after his
wife contacted his parole officer complaining that petitioner was
increasingly threatening, and had weapons in his possession.
at 54-56.
Id.
Petitioner subsequently was charged with being a felon
in possession of a
weapon.
Id. 3
On May
6,
1996,
a
officer recommended that petitioner's parole be revoked.
hearings
Id. at
52-54.
On May 7, 1996, petitioner's parole was revoked after serving
approximately 28 months
on parole.
Id.
at
63 j
Second Amended
Petitioner was convicted of Felon in Possession of a
Firearm in Case No. C960887CR, and sentenced to 24 months
imprisonment, with two years post-prison supervision.
See Resp.
Exh. 107 at 4.
6 -- OPINION AND ORDER
Petition
at~
4.
Following a psychological examination and future
disposition hearing,
the Board denied petitioner's re-release on
parole, finding that he could not be adequately controlled in the
community.
Resp.
Supp.
Exh.
113 at 196-230,
272-76,
&
281.
The
Board's ruling is memorialized in BAF #13:
PURSUANT TO OAR 255-75-079; OAR 255-75-096 AND CITING
EXHIBIT H, AGGRAVATING FACTOR(S): REPETITION OF TYPE OF
CONDUCT ASSOCIATED WITH COMMITMENT OFFENSE OR PAST
CONDITIONS (RETURN TO ASSAULTIVENESS, INVOLVING IN SAME
TYPE OF CRIMINAL ACTIVITY); REPEATED POSSESSION OF
MULTIPLE WEAPONS.
THE BOARD DENIES RE-RELEASE, FINDING
THE INMATE CAN NOT BE ADEQUATELY CONTROLLED IN THE
COMMUNITY.
THE DENIAL OF RE-RELEASE RESULTS IN A TRUE
LIFE SENTENCE.
Id. at 281 & Resp. Exh. 104 at 2.
review,
1997.
Petitioner sought administrative
which was denied by the Board in ARR #5 on February 10,
Resp. Exh. 105.
In 1998 and 1999, petitioner sought state habeas corpus relief
challenging the Board's imposition of a true life sentence.
Exhs.
106
&
proceedings.
19952
&
Resp.
The state courts denied habeas relief in both
123.
Resp.
Exh.
113 & 131
Petitioner
OOC-13113).
(Marion County Case Nos.
appealed
from
both
98C-
habeas
proceedings, but those appeals subsequently were dismissed without
a decision on the merits.
Resp. Exhs 122 & 133
(CA A104917 & CA
A111010).
• Federal Habeas Corpus Proceedings
In October,
relief.
2000,
Dawson v.
petitioner
Schiedler,
7 -- OPINION AND ORDER
sought
federal
6:00-cv-1396-TC.
habeas
corpus
On October 21,
2002, Magistrate Judge Thomas Coffin denied habeas relief on the
basis that petitioner procedurally defaulted his available state
remedies.
The Honorable Michael R. Hogan adopted the Findings and
Recommendation,
and
the
Ninth
Circuit
subsequently
denied
a
certificate of appealability.
On or about
proceeding.
January 3,
2006,
petitioner filed the instant
On October 17, 2007, I dismissed petitioner's amended
petition on the basis that it was successive.
Petitioner appealed
and, on June 22, 2011, the Ninth Circuit issued an order providing
as follows:
We construe this appeal as a motion under 28 U.S.C.
§ 2244 (3) to file a second or successive petition for
habeas corpus. As jointly requested by the parties, we
grant the motion. We direct the district court to allow
Petitioner Craig Dawson to file his Second Amended
Petition for Writ of Habeas Corpus. As jointly agreed by
the parties, the district court shall consider the merits
of Petitioner's Ex Post Facto claim. As jointly agreed
by the parties, Superintendent Belleque shall waive all
of his procedural defenses in the district court.
DISCUSSION
The
Ex
"enactments,
Post
Facto
which
by
Clause
of
retroactive
the
U.S.
Constitution
operation,
punishment for a crime after its commission."
529 U.S. 244, 249-50
u.s. 499,
changes
Garner v.
the
Jones,
(2000); Cal. Dep't. of Corr. v. Morales, 514
508-509
in
increase
bars
(1995).
laws
governing
It is well settled that
the
parole
of
prisoners,
instances, may violate the Ex Post Facto Clause.
8 -- OPINION AND ORDER
retroactive
in
some
Garner, 529 U.S.
at 250; Morales,
514 U.S. at 508-09; Himes v.
Thompson,
336 F.3d
848, 854 (9th Cir. 2003); Nulph v. Faatz, 27 F. 3d 451, 455 (9th Cir.
1994) .
The
Supreme
difficulty
Court
has
in determining
recognized,
whether
however,
retroactive
the
inherent
application
of
a
particular change in parole violates the Ex Post Facto Clause given
the discretionary nature of parole board decisions.
U.S. at 250.
Garner,
529
The Court has cautioned that "not every retroactive
procedural change creating a risk of affecting an inmate's terms or
conditions of confinement is prohibited" and there is no "single
formula for identifying which legislative adjustments, in matters
bearing on parole,
Garner,
would survive an
ex post
facto challenge."
529 U.S. at 250 & 252; Morales, 514 U.S. at 508-09; Brown
v. Palmateer, 379 F.3d 1089, 1093 (9th Cir. 2004).
a
matter
of
retroactive
degree,
and
application
the
of
controlling
the
change
in
The question is
inquiry
the
is
law
whether
creates
a
"sufficient risk of increasing the measure of punishment" attached
to the petitioner's crime.
Garner, 529 U.S. at 250; Morales, 514
U.S. at 509; Gilman v. Schwarzenegger, 638 F.3d 1101, 1106 (9th Cir.
2011) .
In
his
second
amended
petition,
petitioner
raises
following two ex post facto grounds for relief:
A.
Placing petitioner on parole for 36 months in
1993 violated the Ex Post Facto Clause of the
United States Constitution, because the law in
9 -- OPINION AND ORDER
the
effect
in
1985--at
the
time
petitioner
committed the underlying murder--authorized a
period of parole of only 12 months under the
circumstances of this case; and
B.
I.
Sentencing petitioner to "true life" in prison
after revoking his parole
in
1996 also
violated the Ex Post Facto Clause of the
United States Constitution, because the law in
effect
in
1985
authorized
incarcerating
petitioner only until his "statutory good time
date,"
which
the
Board
previously
had
determined was April 11, 1996.
Ground One:
In
his
first
Imposition of 36-Month Term of Parole.
ground
application of post-1985
for
relief,
petitioner
contends
that
law violates the Ex Post Facto Clause
because the law in effect on May 30, 1985, authorized a period of
parole of only 12 months under the circumstances of this case.
Second Amended Petition at 2.
A.
I disagree.
Applicable State Law.
As of May 30, 1985, the date of petitioner's original offense,
O.R.S. 144.310 provided in relevant part:
(1) When a parole prisoner has performed the
obligations of parole £or such time as satisfies the
State Board o£ Paro~e that the prisoner's £ina~ re~ease
is not incol¥>a tib~e with the prisoner's we~£are and that
o£ society, the board may make a £ina~ order o£ discharge
and issue to the paro~ed prisoner a certificate o£
discharge; but no such order of discharge shall be made
within a period of less than six months after the date of
release on parole, except that when the period of the
sentence imposed by the court expires at an earlier date,
a . final order of discharge shall be made and a
certificate of discharge issued to the paroled prisoner
not later than the date of expiration of the sentence.
10 -- OPINION AND ORDER
(2) A paro~ed prisoner sha~~ be subject to active
supervision during the first six months o£ the
period o£ paro~e.
Tbe board may require a more extended
period o£ active supervision i£, in a manner provided by
ru~e, it finds that a six-month period o£ supervision is
inco.mpatib~e
with the we~£are o£ the paro~ee or o£
society. * * *
paro~e
( 3) The board may extend or renew the period of
active parole supervision or delay discharge of a parolee
if it finds, in the manner provided in ORS 144.343, that
the parolee has violated the conditions or terms of
parole.
Former O.R.S.
1987, c. 320,
144.310
§
61,
(1981)
(emphasis
added),
repealed Or.Laws 1993, c.680,
The corresponding administrative rule,
002 (1)
amended Or.Laws
§
7.
former O.A.R. 255-90-
(eff. May 15, 1982), provided:
Pursuant to ORS 144.310 the Board shall establish a
discharge date from active supervised parole. The period
o£ supervised paro~e sha~~ be as shown in the guide~ine
matrix, Exhibit H-1, un~ess the Board provides written
reasons £or an extended supervision period.
Extended
supervision periods sha~~ not exceed thirty-six (36)
months.
Repealed (October 15, 1993)
H-1
(referenced in the
(emphasis added).
rule),
petitioner's presumptive term of
active supervised parole was one year.
On November 4,
198 6,
Pursuant to Exhibit
4
the citizens of Oregon enacted Ballot
Measure 10, a comprehensive victims' rights initiative, which was
4
Petitioner incorrectly references Exhibit I in his
briefing, which is the chart used to calculate the initial term
of parole supervision under O.A.R. 255-90-002, effective May 31,
1985, one day after petitioner's offense.
See Pet.'s Memo. at 4.
11 -- OPINION AND ORDER
codified in relevant part at O.R.S. 144.305.
Or Laws 1987, ch. 2;
Davidson v. Bd. of Parole and Post-Prison Supervision, 139 Or. App.
289,
293,
911 P.2d 973,
914 P.2d 14
(1996).
adhered to as modified,
72,
"That law applied to all crimes committed on
or after December 12, 1986 and
. required parole to extend for
the entire term of an offender's sentence."
turn,
140 Or. App.
Id.
The Board,
in
adopted parole supervision rules contained in OAR Chapter
255, division 92
(applicable to prisoners who committed crimes on
or after December 4, 1986),
recognizing that parole shall extend
the entire term of a prisoner's sentence, but authorizing the Board
to discontinue "active supervision on parole" after three years.
See
O.A.R.
255-92-005,
255-92-010 (4),
255-92-015,
&
255-92-020
repealed (October 15, 1993) . 5
(1987),
In
1993,
the
codified at O.R.S.
state
legislature
enacted
Senate
Bill
139,
144.085, providing that the Board shall adopt
rules providing for periods of supervised parole requiring,
alia,
that prisoners
years
supervised
sentenced for murder serve at
parole.
5
O.R.S.
144.085(1) (b)
inter
least three
(1 9 93 ) ;
former
The only relevance of Ballot Measure 10 to the resolution
of this case is that petitioner incorrectly states in his
memorandum, that his 36-month term of parole supervision was set
pursuant to Ballot Measure 10.
See Pet.'s Memo. at 3-4 & 9-11.
As set forth supra, the Board expressly set petitioner's parole
supervision term pursuant to 1993 law.
Petitioner's error in
referencing Ballot Measure 10 is compounded by respondent's
failure to acknowledge the existence of BAF #6 and ARR #4 in its
legal analysis.
12 -- OPINION AND ORDER
O.A.R.
repealed
(1993),
255-93-000 (2) (b)
(May
18,
1999);
see
Fernandez v. Board of Parole and Post-Prison Supervision, 137 Or.
App. 247, 249, 904 P.2d 1071 (1995).
Upon completion of the period
of supervision, the Board may (a) order a period of inactive parole
that shall continue until the expiration of the sentence; or
extend the supervision period.
0 . R. S .
1 4 4 . 08 5 (3 ) (1 9 9 3 ) ;
(b)
former
O.A.R. 255-93-010 (1993), repealed (May 18, 1999).
B.
Analysis.
Under
presumptive
unfettered
reasons.
the
law
parole
in
effect
term was
discretion
to
on
one
impose
FormerO.R.S. 144.310(2)
May
year,
a
30,
1985,
although
three-year
petitioner's
the
term
Board
for
had
written
(1981), amendedOr.Laws 1987, c.
320, § 61, repealed Or.Laws 1993, c.680, § 7; O.A.R. 255-90-002(1)
(eff. May 15, 1982).
At the end of the initial term of parole, the
Board had discretion to determine whether to discharge petitioner
from parole or continue supervision.
Haskins v. Palmateer, 186 Or.
App. 159, 165, 63 P.3d 31 (2003).
Under the 1993 law expressly applied to petitioner in BAF #6
and ARR #4, petitioner's presumptive term of parole was three years
(with no written reasons).
At the end of the three year period,
the Board retained its discretion to determine whether to extend
petitioner's parole,
144.085 (3)
or discharge him from parole.
(1993); former O.A.R. 255-93-010
18, 1999).
13 -- OPINION AND ORDER
See O.R.S.
(1993), repealed (May
The parties have not cited any well-established Federal law
holding that a change in law which increases the length of a parole
term,
as opposed to laws affecting parole eligibility or release
dates, constitute punishment for ex post facto purposes.
that
the
constitutional prohibition applies,
applying the
Ex Post
parole
had broad
board
Facto Clause
discretion
in this
under
the
difficulty of
context
former
Assuming
is
0. R. S.
that
the
14 4. 310
(1981), to extend petitioner's term of parole for the entire length
of his court-imposed sentence.
Further,
Haskins,
186 Or.
App.
at 165. 6
the Board had the discretion under the regulations
in
effect on both May 30, 1985, and in 1993, to impose an initial term
of parole of three years, albeit written reasons were required in
1985, and it was the minimum term of parole by 1993.
While the Supreme Court has held in the sentencing context,
that a change to a mandatory maximum sentence, or the enactment of
a
presumptive
Clause,
7
sentencing
range
may
violate
the
Ex
Post
Facto
the parole context differs due to the discretionary nature
of when to discharge a parolee from supervision.
The change from
an initial parole term of one year (with a discretionary option of
three years)
to a mandatory minimum parole term of three years,
6
In engaging in Ex Post Facto analysis, this court accepts
the meaning ascribed to state statutes and regulations by the
state courts.
Himes, 336 F.3d at 853; Brown, 379 F.3d at 1093.
7
See Lindsey v. Washington, 301 U.S. 397, 400-01
Miller v. Florida, 482 U.S. 423, 432-35 (1987).
14 -- OPINION AND ORDER
(1937);
creates only a speculative and attenuated risk of increasing the
punishment
for
petitioner's
crime
given
the
Board's
broad
discretion to require petitioner to serve his entire court-imposed
sentence on parole.
Hence,
based upon
an
independent
review of
the
record,
I
conclude that the state court's rejection of petitioner's ex post
facto challenge to the Board's application of the 1993 laws and
regulations
in
setting
his
initial
term
of
parole
is
neither
contrary to, nor an unreasonable application of clearly established
Federal law.
See 28 U.S.C.
§
2254 (d) (1) . 8
If it is assumed that
deference is not appropriate given the procedural posture of this
case, I reach the same conclusion on de novo review.
In
so
holding,
I
decline
to
defer
to
the
state
court's
reasoning in Thierman v. Bd. of Parole and Post-Prison Supervision,
134 Or. App. 304, 894 P.2d 1250 (1995)
(summarily concluding that
retroactive application of O.R.S. 144.085(1) (b) violates the state
ex post facto clause as to offender convicted in 1985).
Byrnes v.
Bd.
of Parole,
134 Or. App.
296,
894 P.2d 1252
(concluding that retroactive application of O.R.S.
8
See also
(1995)
144.085(1) (b)
It is worthy of note that an "as applied" challenge to
application of the 1993 law similarly would fail given the fact
that the Board extended petitioner's parole after a three year
period on the basis of his "life long history of mental and
emotional problems".
See Resp. Supp. Exh. 113 at 58-59; Himes,
336 F.3d at 855 n.5; Nulph, 27 F.3d at 456.
15 -- OPINION AND ORDER
does not violate ex post facto clause as to offender convicted in
1981) .
In both Thierman and Byrnes,
question
of
whether
the
the state court held that the
retroactive
application
of
the
law
constituted an ex post facto violation turned on whether the law
"disadvantaged" the parolee,
or was applied to his "detriment."
Thierman, 134 Or. App. at 306 (citing Byrnes); Byrnes, 134 Or. App.
at 300 (citing United States v. Paskow, 11 F.3d 873, 882
1988)) .
However,
decisions,
using
such
just
the U.S.
an
days
before
Supreme Court
ambiguous
standard
the
Thierman
in Morales
for
(9th Cir.
and
Byrnes
cautioned against
federal
ex
post
facto
purposes:
Our opinions
in Lindsey,
Weaver,
and Miller
suggested that enhancements to the measure of criminal
punishment fall within the ex post facto prohibition
because they operate to the "disadvantage" of covered
offenders.
But that language was unnecessary to the
results in those cases and is inconsistent with the
framework developed in Collins v. Youngblood, 497 U.S.
37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990).
After Collins, the focus of the ex post facto inquiry is
not on whether a legislative change produces some
ambiguous sort of "disadvantage," nor, as the dissent
seems to suggest, on whether an amendment affects a
prisoner's "opportunity to take advantage of provisions
for early release," but on whether any such change alters
the definition of criminal conduct or increases the
penalty by which a crime is punishable:
Morales,
Given
514 U.S.
the
state
at 506 n.3;
courts
16 -- OPINION AND ORDER
see also Garner,
failure
to
cite
or
529 U.S.
apply
the
at 255.
test
in
Morales,
I do not find the state court's ex post facto analysis
persuasive.
II.
Ground Two: Imposition of True Life Sentence.
Petitioner's second ex post facto claim is premised upon the
contention
that
his
"good
time"
date
expired
by
the
time
he
committed the conduct underlying his felon in possession conviction
in
1996.
Petitioner
reasons
that
the
Board
therefore
had
no
authority to revoke his parole, and in so doing necessarily relied
upon a retroactive application of O.A.R. 255-75-096 (amended after
petitioner's criminal conduct to specify that the Board may require
a
parolee
convicted
of
murder
to
sentence when his parole is revoked)
A.
serve
the
remainder
of
his
Pet.'s Memo. at 11-12.
Applicable State Law.
On May 30, 1985, O.R.S. 144.343 (1981) set forth the procedure
for the revocation of parole as follows:
(1) When the State Board of Parole
. has been
informed and has reasonable grounds to believe that a
person under its jurisdiction has violated a condition of
parole and that revocation of parole may be warranted,
the board
shall conduct a hearing
to
determine whether there is probable cause to believe a
violation of one or more of the conditions of parole has
occurred and also conduct a parole violation hearing if
necessary. * * *
(2) The board may:
(a) Reinstate or continue the alleged violator on
parole subject to the same or modified conditions of
parole; or
17 --OPINION AND ORDER
Revoke paro~e and
vio~ator serve the remaining
provided by ~aw.
(b)
require
ba~ance
that the paro~e
o£ the sentence as
(Emphasis added).
The related administrative rule, O.A.R. 255-75-096 (eff. Feb.
28, 1985), however, made specific reference to the parolee's good
time date:
Denial of Reparole Consideration
(1) The Board may deny reparole consideration and
require the parole violator to serve to the statutory
good time date.
This action requires the affirmative
vote of at least four voting members.
(Emphasis added).
O.A.R. 255-75-096 was amended in 1989, to add
language recognizing that a parolee convicted of aggravated murder
could be returned to prison for life.
eff. Oct. 16, 1989).
O.A.R. 255-75-096(1)
(perm.
In 1997, the rule was amended again to add
language recognizing that a parolee convicted of murder could be
returned to prison for life.
O.A.R. 255-75-096(1)
(perm. eff. Mar.
14, 1997).
B.
Analysis.
The
language
in
allowing the Board to
the
1985
~equire
version
of
O.A.R.
255-75-096,
a parolee to return to prison to
serve to his statutory good time date, and the fact that the rule
was not amended until 1997,
to expressly provide that a parolee
convicted of murder may be returned to prison for life, offers some
18 -- OPINION AND ORDER
support
for
petitioner's
ex post
facto
in
argument
isolation.
However, I also consider the language of the applicable statutes.
As
set
original
forth
offense,
above,
on
the
date
O.R.S.
144.343
petitioner committed his
(1981)
provided
that,
upon
a
finding that a parolee violated his parole, the Board may "[r]evoke
parole and require that the parole violator serve the remaining
balance of the sentence as provided by law.
144.390 (1975)
See also former O.R.S.
(prisoner recommitted for violation of parole shall
serve out the sentence),
repealed Or.Laws 1989,
c.
790,
§
47a;
State ex rel Gonzalez v. Washington, 182 Or. App. 112, 119, 47 P.3d
537
(2002).
Consequently,
under state law in effect on May 30,
1985, the Board had the authority to revoke petitioner's parole,
and
require
him
to
serve
the
remaining
balance
of
his
life
sentence.
Further,
pursuant
to O.R.S.
421.120(2)
(1981),
a
prisoner
sentenced to life was not entitled to good time credits.
Hence,
contrary to petitioner's argument,
and regardless of the various
projected
on
good
time
dates
listed
petitioner's
board
action
forms, at the time of his release on parole in 1993, his sentence
had
not
expired.
In
this
regard,
it
is
worthy
of
note
that
contrary to petitioner's argument, the last BAF issued by the Board
before his release on parole listed his good time date as July 27,
2003, not April 11, 1996.
Compare BAF #5 (Resp. Exh. 103) and BAF
#6 (Resp. Supp. Exh. 113 at 64).
19 -- OPINION AND ORDER
In sum,
the Board's action in revoking petitioner's parole,
requiring him to serve his life sentence,
time credit against his sentence,
complied with state law as it
The applicable language in
existed on the date of his offense.
O.A.R. 255-75-096(1)
and not providing good
(eff. Feb. 28, 1985), providing that the Board
may deny reparole consideration and require the parole violator to
serve
to
his
statutory
good
time
date,
does
not
warrant
a
conclusion that petitioner was subjected to an ex post facto law.
Cf.
Dobbert
v.
Florida,
432
U.S.
282,
294
(1977)
(statutory
procedures must be compared in toto to determine if the new law is
more onerous); Nulph, 27 F. 3d at 455-56 (same).
Accordingly, based
upon my independent review of the record, petitioner has failed to
demonstrate that the state courts' rejection of this ex post facto
claim is contrary to,
established Federal
or an unreasonable application of clearly
law.
See
28
U.S.C.
§
2254 (d) (1).
To the
extent that de novo review is warranted, my ruling would be the
same.
CONCLUSION
For the reasons set forth above, petitioner's second amended
petition (#53), and motion for summary judgment (#70) are DENIED.
This proceeding is DISMISSED, with prejudice.
Ill
Ill
20 -- OPINION AND ORDER
A certificate of appealability is GRANTED as to both grounds
for relief.
See 28 U.S.C.
§
2253(c) (2).
IT IS SO ORDERED.
~
DATED
')("
~~
this~ Clay
of June, 2012.
G r M. King
United States District
21 -- OPINION AND ORDER
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