Murphy v. Premo

Filing 41

OPINION AND ORDER. The Court GRANTS respondent's Motion to Dismiss 38 , DENIES AS MOOT the Petition for Writ of Habeas Corpus and DISMISSES this action for lack of jurisdiction. IT IS SO ORDERED. Signed on 1/28/2013 by Judge Robert E. Jones. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT DOYLE MURPHY,
6:

11-CV-00979-JO

Petitioner,
v.

JEFF PREMO,
OPINION AND ORDER
Respondent.
Anthony D. Bornstein
Federal Public Defender's Office
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

JONES, District Judge.
Petitioner, a former inmate at the Oregon State Penitentiary,
brings this habeas corpus action pursuant to 28 U.S.C.

§

2254.

Petitioner challenges a 2008 decision of the Oregon Board of Parole
and Post-Prison Supervision (the "Board") to revoke his parole and
to order an additional term of imprisonment.

For the reasons that

follow, the Court DENIES the Petitioner for Writ of Habeas Corpus
as MOOT.
BACKGROUND

In 1976, petitioner pled guilty to murder and was sentenced to
life with the possibility of parole.
him on parole.

In 2007, the Board released

Thereafter, in January 2008, following a hearing,

the Board revoked petitioner's parole for violating a condition of
his

parole

prohibiting him

from possessing

or using alcoholic

beverages and ordered him to serve an additional

6 0 months of

imprisonment.
Petitioner sought administrative review of the Board's 2008
revocation decision,

but the Board denied relief.

Exhibit 103 at 188 - 218.

Respondent's

Petitioner filed for judicial review, but

the Oregon Court of Appeals affirmed in a written opinion, and the
Oregon Supreme Court denied review .

Murphy v. Board of Parole, 241

Or.App. 177 , 250 P . 3d 13, rev. denied,
(2011)

i

Respondents' Exhibits 102-114 .

2 - OPINION AND ORDER

350 Or. 571,

258 P . 3d 526

On August 12,

2011,

petitioner filed this action.

In his

Petition for Writ of Habeas Corpus, petitioner raises the following
grounds for relief:
1.

Due process is violated when an accused is denied access
to all relevant materials, in a timely manner, to
accommodate a timely defense.
Additionally, when all
relevant materials are not included, establishing a
proper finding is flawed.
Petitioner has a right to an
impartial
due
process
administrative
hearing.
Petitioner's Due Process rights were violated under the
Fourteenth
(14th)
Amendment to the United States
Constitution .

2.

Did the Court of Appeals abuse its discretion by ruling
that there was not enough evidence to satisfy the
statutory requirement of Substantial Evidence?

3.

The Court of Appeals abuses its discretion when it
determined that petitioner failed to raise, in any
respect, an objection to the admission of the hearsay
statements of Ong and Ross.
Petitioner had a right to
confront and cross-examine adverse witnesses in order he
receive a fair and meaningful hearing.

4.

The Court of Appeals abuses its discretion by ruling that
the Board did not rely on the EtG test as the "primary or
sole evidence" against petitioner.

5.

The Court of Appeals abuses its discretion by ruling the
Board did not violate petitioner's Liberty where the
conditions of parole were vague and unclear as to the
term "intoxicating beverages."

6.

The Court of Appeals abuses its discretion when it finds
petitioner is not entitled to an attorney to unravel the
intricacies and application of relevant rules and laws
governing the Morrissey hearing . Particularly in light
of the fact petitioner was not allowed any time in the
Lane County Legal Library.
Further, petitioner has no
knowledge of the procedure for providing witnesses for
cross-examination.

7.

The Court of Appeals abuses its discretion by ruling
petitioner was not harmed or prejudiced by the Board
delivering lab reports and the chronological history,

3 - OPINION AND ORDER

five minutes prior to the Morrissey hearing? Petitioner
has a right to formulate his defense from all available
information potentially used against him.
Five minutes
is not enough time for this to process. 1
In view of the fact that petitioner was released from prison
on November 29,

2012, respondent moves the Court to dismiss this

action with prejudice on mootness grounds.
DISCUSSION
A.

Standards.

The case or controversy provision of Article III,
Constitution

"subsists

through all

stages

of

§

federal

2 of the
judicial

proceedings, trial and appellate .... The parties must continue to
have a 'personal stake in the outcome' of the lawsuit."
Kemna,

523 U.S.

1,

7

(1998)

(quoting Lewis v.

Corp., 494 U.S. 472, 477-478 (1955)).

Spencer v.

Continental Bank

This means that, throughout

the litigation, petitioner "must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision."
494

u.s.

at

477) .

Whether

a

case

Id.
does

(quoting Lewis,
not

meet

the

case-or-controversy requirements of Article III, and is thus moot,
is a question of federal law upon which the federal court "must
pronounce final
(1964)

judgment."

Liner v.

Jafco,

375 U.S.

301,

304

(citing Love v. Griffith, 266 U.S. 32 (1924)).

1

Because the Court does not reach the merits of petitioner's
claims, it declines to include here the lengthy supporting facts
set forth in the Petition. See Petition [2] at 3-8.

4 - OPINION AND ORDER

Assuming the "in custody" requirements of 28 U.S.C.

2254

§

were met at the time of filing of a petition for writ of habeas
corpus,

a parolee's challenge to the legality of the underlying

conviction always satisfies the case or controversy requirement.
Id.

This is so because "collateral consequences" of the conviction

result in "a substantial stake in the judgment of conviction which
survives

the

satisfaction of

the

sentence

Carafas v. LaValle, 391 U.S. 234, 237

imposed

(1968)

United States, 329 U.S. 211, 222 (1946)).

upon

him."

(quoting Fiswick v.

Thus,

the fact that a

habeas petitioner's sentence expires during the pendency of his
habeas

case attacking the validity of his

conviction does not

render the petition moot.
The presumption of collateral consequences does not, however,
necessarily extend to other contexts.
challenge

the

revocation

of

his

A petitioner who seeks to

parole

must

demonstrate

that

continuing collateral consequences exist if the term imposed for
violating parole has been served.

Spencer, 523 U.S. at 14-18; see

also Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir.1987)
because

petitioner

cannot

be

released

from

violating parole that he has already served) .

term

(claim moot
imposed

for

Likewise, a petition

challenging a Board decision to delay release on parole is rendered
moot by the petitioner's subsequent release.

Burnett v. Lampert,

432 F.3d 996, 2005 WL 3527123, *4 (9th Cir., Dec. 27, 2005).

5 - OPINION AND ORDER

B.

Analysis.

Petitioner argues that

11

[t] his Court could fashion a remedy to

cure any period of invalid incarceration served by [him] . 11
to Motion to Dismiss

[40]

Specifically,

at 2.

Reply

he suggests the

Court could shorten his parole term or modify his parole status by
requiring

the

Board

release

him

onto

inactive

supervision.

According to petitioner, had the Board not revoked his parole, he
may have been placed on inactive supervision by now. Id. at 4-5.
Based on these assertions,

petitioner argues he has a

stake in the outcome, .. and his case is not moot.

11

personal

Id. at 3 (quoting

Spencer, 523 U.S. at 7).
Petitioner's arguments are unavailing.

Under Oregon law,

petitioner's underlying conviction determines the maximum duration
of his

sentence,

and his ultimate sentence

termination is not

dependent on whether he was held in a prison as a parole sanction.
Barnes v.

Thompson,

159 Or.App.

383,

977 P.2d 431,

432

(1999).

Similarly, the Oregon courts have determined they cannot order the
Board to place a parolee on inactive status because such decision
is left to the Board's discretion based on how the parolee has done
on active supervision.

The mere possibility that the Board might

have changed an inmate from active to inactive supervision status
is not the type of collateral consequence that would prevent a
claim seeking immediate release from prison from becoming moot in
the event the prisoner is released.

6 - OPINION AND ORDER

Id. at 386-87.

Based on this

reasoning, it is clear that the injury for which petitioner seeks
relief cannot be redressed by this Court.
not

a

case

Accordingly, there is

or controversy and petitioner's

claims

are moot.

CONCLUSION

Based on the foregoing, the Court GRANTS respondent's Motion
to Dismiss

[38] , DENIES AS MOOT the Petition for Writ of Habeas

Corpus and DISMISSES this action for lack of jurisdiction.
IT IS SO ORDERED.
DATED this

'2.6~

day of January, 2013.

Judge

7 - OPINION AND ORDER