McCline v. Nooth
Filing
25
OPINION AND ORDER. Petitioner's petition for writ of habeas corpus 2 is DENIED, and this proceeding is DISMISSED, with prejudice. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. Signed on 8/01/2011 by Judge Garr M. King. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
GEORGE EARL McCLINE,
Petitioner,
Case No. 3:10-cv-416-KI
OPINION AND ORDER
v.
MARK NOOTH,
Respondent.
ANTHONY BORNSTEIN
Federal Public Defender's Office
101 SW Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
JOHN KROGER
Attorney General
ANDREW HALLMAN
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Attorneys for Respondent
KING, Judge
Petitioner George Earl McCline,
an inmate in the custody of
the State of Oregon, brings this habeas corpus proceeding pursuant
1 - OPINION AND ORDER
u.s.c.
to 28
2254, challenging a 2007 decision by the Board of
§
Parole and Post-Prison Supervision (the Board) to defer his release
on parole.
For
the
reasons
set
forth
below,
the petition
is
denied, and this proceeding is dismissed.
BACKGROUND
In 1979, petitioner was tried and convicted of the murder of
his
girlfriend,
Addie
Ward.
indeterminate life sentence.
Peti tioner
was
sentenced
to
an
Petitioner does not challenge his
conviction or sentence in this proceeding.
At the time of petitioner's offense, the Board was allowed to
postpone
an
inmate's
release
date
"[iJf
a
psychiatric
or
psychological diagnosis of present severe emotional disturbance
such as to constitute a danger to the health or safety of the
community has been made with respect to the prisoner."
O.R.S.
§
144.125 (3) (pre-1993) .
Prior to petitioner's 2007 projected parole release date, the
Board scheduled petitioner for a psychological evaluation by F.
Robert Stuckey,
Dr.
Stuckey
severe
Ph.D., which was conducted on January 26, 2007.
concluded that
emotional
disturbance
petitioner
that
suffered
constituted a
from
a
present
danger
to
the
health or safety of the community.
May 2, 2007, the Board conducted a parole hearing.
was present at the hearing,
Board Action Form
(BAF)
2 - OPINION AND ORDER
#11,
Petitioner
and was represented by counsel.
a decision dated May 2,
2007
In
and
mailed on May 22, 2007, the Board deferred petitioner's parole for
an additional 24 months pursuant to O.R.S.
§
144.125(3) (pre-1993)
In BAF #11, the Board explained the basis of its decision:
Based on the doctor's report and diagnosis, coupled with
all the information that the Board is considering, the
Board concludes that the inmate suffers from a present
severe emotional disturbance that constitutes a danger to
the health or safety of the community.
The Board has
considered the matter under the laws in effect at the
time of the commitment offense (s). (Resp. Ex. 103, p.
113. )
Petitioner
sought
administrative
review.
In
his
administrative review request, petitioner raised numerous claims,
including the following in relevant part:
1) There is not substantial evidence to support a finding
that inmate suffers from a present severe emotional
disturbance that constitutes a danger to community
because [the] Board of Parole has not provided petitioner
any treatment for his disorder per ADA Title II
2) Board has not considered all information available,
and
3) BAF Form is ambiguous impairing petitioner's request
on admin[istrative] review. (Resp. Ex. 103, p. 115-16.)
Petitioner also specifically challenged Dr.
diagnosis of severe emotional disturbance.
Stuckey's report and
(Resp.
Ex.
103,
p.
120. )
On November 28,
(ARR)
#2,
the
2007,
Board
in its Administrative Review Response
upheld
BAF
#11.
The
Board
addressed
petitioner's claims as follows:
In your administrative review request you first allege
that the board does not have substantial evidence to find
3 - OPINION AND ORDER
that you have a present severe emotional disturbance such
as to constitute a danger to the health or safety of the
community. You also appear to be alleging that the board
has deferred your release date solely because of your
severe emotional disturbance.
The board does not find
these arguments persuasive for the following reasons. As
indicated in BAF #11, the board deferred your release
date based not on your having a severe emotional
disturbance alone, but on consideration of all the
information in your hearing packet, which included, among
other things, details of your crime of commitment,
wherein you murdered your girlfriend by stabbing her
twice in the back and four times in the head; evidence of
13 disciplinary reports for institutional misconduct in
the past 10 years, including an assault in April 2005;
and the psychological diagnosis. Dr. Stuckey assigned a
diagnosis of "Personality Disorder NOS with Antisocial
and Histrionic Features" under Axis II.
He sated that
you have "significant problems thinking and reasoning in
a logical or abstract manner," and that your are prone
toward being impulsive. Dr. Stuckey further stated that
your are unaware of your capacity for aggression and
violence, and concluded that you represent "a significant
threat to the safety of the community." The Board also
considered all the information that you presented at the
hearing,
including information that
Department of
Corrections Counseling and Treatment Services (CTS)
opined that you were not eligible for CTS treatment. It
was the board's conclusion, after listening to everything
you had to say and considering all the information before
it, that your severe emotional disturbance constitutes a
danger to the community.
Therefore, because there is
substantial evidence in the record to support the board's
decision, the board does not find that your allegations
provide a basis for relief.
(Resp. Ex. 103, p. 201-02.)
Petitioner then sought leave to proceed on judicial review.
(Resp.
Ex.
104.)
The Oregon Court of Appeals affirmed without
opinion, and the Oregon Supreme Court denied review.
(Resp. Ex.
112. )
On April 15, 2010, petitioner filed his current petition for
wri t
of habeas
corpus.
4 - OPINION AND ORDER
In
the
instant
proceeding,
petitioner
asserts three grounds for relief:
(1)
the Board violated his Due
Process rights when it failed to reasonably apply controlling state
law in not providing specific reasons for deferring his parole; (2)
the
Board
violated
his
Due
Process
rights
when
it
failed
to
reasonably apply state law to when it issued BAF #11 without the
individual votes of the Board members; and (3) the Board violated
his
due
process
rights
and
rights
under
the
Americans
with
Disability Act when it deferred parole based on a finding that he
suffers from present severe emotional disturbance without providing
him treatment.
DISCUSSION
Respondent submits that petitioner's grounds one and two are
procedurally defaulted,
merits.
or alternatively should be denied on the
Respondent also submits that ground three was correctly
denied on the merits in a state court decision that is entitled to
deference.
In his briefing to this court,
petitioner discusses
only the merits of his due process claim in ground one.
reasons that follow,
For the
I conclude that petitioner's petition should
be denied.
I.
Grounds Two and Three Are Unargued.
In his briefing to this court, petitioner does not discuss the
merits of grounds two and three.
of these grounds,
state
court's
By failing to advance the merits
petitioner has failed to demonstrate that the
rej ection
5 - OPINION AND ORDER
of
these
claims
is
contrary
to
or
an
unreasonable application of clearly established Federal law in his
briefing to this court.
See Davis v. Woodford,
384 F.3d 628, 638
(9th Cir. 2004), cert. dismissed, 545 U.S. 1165 (2005) (petitioner
bears burden of proving he is entitled to habeas relief); Silva v.
Woodford, 279 F.3d 825, 835 (9th Cir.), cert. denied, 537 U.S. 942
(2002) (same);
28 U. S. C.
§
2254 (d) .
Nevertheless,
the court has
reviewed petitioner's unargued claims and determined that they do
not entitle him to relief.
Accordingly,
habeas corpus relief on
grounds two and three is denied.
II.
Ground One.
Because petitioner is not entitled to habeas relief, I decline
to address whether ground one is procedurally defaulted.
§
28 U.S.C.
2254 (b) (2) ("An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the state.");
Cassett v.
denied,
A.
Stewart,
406 F.3d 614,
623-24
(9th Cir.
2005),
cert.
546 U.S. 1172 (2006).
Standards.
Under 28 U.S.C.
§
2254(d),
federal habeas corpus relief may
not be granted on any claim that was adjudicated on the merits in
state court, unless the adjudication:
(1) resulted in a decision that was contrary to, or
invol ved
an
unreasonable
application
of,
clearly
established Federal law, as determined by the Supreme
Court of the United States; or
6 - OPINION AND ORDER
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A state court's determination of a factual issue "shall be presumed
to be correct."
28 U.S.C.
U.S. 322, 340 (2003).
§
2254(e) (1); Miller-el v. Cockrell, 537
Petitioner carries the burden of rebutting
this presumption of correction by clear and convincing evidence.
28 U.S.C.
B.
§
2254(e) (1)
Analysis.
The Supreme Court recently explained the correct analysis for
determining
whether
violated by a
an
inmate's
due
process
rights
have
been
state court decision approving of a parole board
determination.
Swarthout v. Cooke,
131 S. Ct.
859,
863
(2011).
See also Miller v. Oregon Bd. of Parole & Post-Prison Supervision,
642 F.3d 711,
reiterated
available
Cooke,
131
716
that
for
S.
(9th Cir.
federal
violations
Ct.
at
2011.)
In Cooke,
the Supreme Court
habeas
relief
of
Constitution or
861.
the
To
under
establish
a
§
Due
2254
is
only
federal
law.
Process
Clause
violation, the Cooke court set forth a two part inquiry.
861; Roberts v. Hartley,
640 F.3d 1042, 1045 (9th Cir. 2011).
First, the court must "ask whether there exists a liberty or
property interest of which a person has been deprived."
S. Ct. at 861.
Cooke, 131
The Cooke court observed that "[tJhere is no right
under the Federal Constitution to be conditionally released before
the expiration of a valid sentence,
7 - OPINION AND ORDER
and the States are under no
duty to offer parole to their prisoners."
Id.
at
862.
Greenholz v. Inmates of Nebraska Penal & Corr. Complex, 442
7 (1979); Beveridge v. Johnson, 157 Or. App. 57
Accord
u.s.
1,
(1998).
Second, if a state's parole scheme creates a protected liberty
interest,
the court must "ask whether the procedures followed by
the State were Constitutionally sufficient."
861.
Cooke, 131 S. Ct. at
In the parole context, "the procedures required are minimal."
Id. at 862.
The Federal Constitution requires only "an opportunity
to be heard" and be "provided a statement of the reasons why parole
was denied."
Id.
The Ninth Circuit has not yet decided whether O.R.S.
creates a liberty interest in parole.
771597,
Cir.
*2
(D. Or. Apr. 2,
2008);
Snow v.
212 Fed. Appx.
2004 WL 1201269,
*3
(D.
Ninth
Circuit
recently
has
determined
parole eligibility statute (O.R.S.
a
liberty interest,
as
release statute (O.R.S.
that
144.228).
(9th
June 1,
I note that
Oregon's
early
163.105(3)-(4) (1981)) creates
§
does Oregon's dangerous
§
603
Or.
2004), adopted, 2004 WL 1636957 (D. Or. July 7, 2004).
the
144.125
Cooley v. Bartlett, 2005 WL
2005), aff'd,
Hill,
§
offender parole
Miller, 642 F.3d at 716; Houff
v. Blacketter, 2011 WL 1881858, *1 (9th Cir. May 18, 2011) (not for
publication) .
However,
whether
O.R.S.
I
need not
§
144.125
decide
creates
for
a
purposes
liberty
of
this
interest
decision
in parole
because even presuming that it does, petitioner has received all
8 - OPINION AND ORDER
the process that is due.
See Pedro v. Oregon Parole Bd., 825 F.2d
1396,
1987),
1398
(9th
Cir.
cert.
denied,
484
u.S.
1017
(1988) (concluding that petitioner received all process he was due
without deciding whether state system created a liberty interest) .
As the Ninth Circuit observed in Miller, the Supreme Court in
Cooke
determined
decisions,
that
"in
the
the due process right
context
of
parole
is procedural,
eligibility
and entitles a
prisoner to nothing more than a fair hearing and a statement of
reasons for a parole board's decision[.J"
(emphasis in original)
Miller, 642 F.3d at 716
The Miller court described this court's
inquiry as follows:
[TJhe question before the district court, and the one we
face on review of the district court's decision, is not
whether the Board's decision to deny Miller early
eligibility for parole was substantively reasonable, nor
whether the Board correctly applied Oregon's parole
standards.
Instead, it is simply whether the state
provided Miller with the minimum procedural due process
outlined in Cooke.
The Supreme Court found that the
habeas petitioners in Cooke "were allowed to speak at
their parole hearings and to contest the evidence against
them, and were notified as to the reasons why parole was
denied."
131 S.Ct. at 862.
That was sufficient, the
Court held, to satisfy the Due Process Clause.
Id. at
716-17.
Turning to the facts of this case,
the record demonstrates
that petitioner was given at least 14 days advance notice of the
parole hearing.
copy of Dr.
(Resp.
Ex.
103,
p.
73.)
Petitioner received a
Stuckey's report in advance of the hearing and was
afforded an opportunity to respond to Dr. Stuckey's report.
9 - OPINION AND ORDER
(Id. at
Petitioner was assisted at the hearing by his attorney,
p.74-78.)
and
petitioner
hearing.
and
his
attorney
each
gave
statements
at
the
The record demonstrates that petitioner had access to his
records, and it appears that petitioner submitted documentation to
the Board in advance of the hearing.
opportunity
to
submit
additional
consideration at the hearing.
Also,
petitioner had the
information
for
the
Board's
It is clear that petitioner was
provided a written statement of the reasons that parole was denied.
Although petitioner contends that BAF #11 provided an inadequate
written
explanation,
petitioner
received
a
lengthy,
extensive
written statement of reasons his parole was deferred in ARR #2.
See Miller, 642 F.3d at 717 (finding no due process violation where
inmate
did
not
receive
written
explanation
initially,
but
eventually received one) .
Based
upon
the
evidence
in
the
record
before
me,
it
is
abundantly clear that petitioner received all the process he was
due.
Petitioner received an opportunity to be heard at the hearing
Cooke,
and a statement of the reasons for the Board's decision.
131 S.Ct. at 863.
Accordingly,
More was not required.
the
state
court
decision
denying
petitioner
relief on his claim that the Board provided an inadequate statement
of
reasons
and
explanation
for
deferring
his
parole
was
not
contrary to or an unreasonable application of clearly established
federal law and therefore, habeas relief is not warranted.
10 - OPINION AND ORDER
28 U.S.C.
§
2254(d).
Petitioner's due process claim in ground one
is denied.
CONCLUSION
Based on the
habeas corpus
(#2)
foregoing ,
is DENIED,
petitioner' s
petition
for
writ
of
and this proceeding is DISMISSED,
with prejudice.
Because petitioner has not made a substantial showing of the
denial of a constitutional right, a certificate of appealability is
DENIED.
See 28 U.S.C.
§
2253 (c) (2).
IT IS SO ORDERED.
DATED this
~
-day
of
/-h0f 2011.
~,
Garr M. King
~
United States District Ju ge
11 - 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?