Murphy v. Oregon Board of Parole and Post-Prison Supervision

Filing 31

OPINION AND ORDER: The Court GRANTS respondent's Motion to Dismiss 29 , 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:

12 - cv - 00350-JO

Petitioner,
v.
OREGON BOARD OF PAROLE and
POST-PRISON SUPERVISION,

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

11

Board 11

)

to

deny

re-release

following a parole revocation 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

60 months of

imprisonment.
Petitioner sought administrative review of the Board's 2008
revocation decision , but the Board denied relief.
Exhibit 104 at 220-254 .

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 , 243

Or.App. 242, 259 P.3d 97 (2011); Respondents' Exhibits 110-113 .

2 - OPINION AND ORDER

On February 27,

2012, petitioner filed this action.

In his

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

Is the Board required by ORS.144.395 to establish rules
governing the re-release of parolees whose paroles have
been revoked under OAR 255-75-096 (2/28/1985), and if it
is, has the Board established the required rules?

2.

Is a parole condition requiring
or use intoxicating beverages"
in violation of the Due Process
Amendment to the United States

3.

Was the Board's decision to order petitioner's
incarceration supported by substantial evidence?

4.

Was the Board's finding of aggravation authorized by the
Board's rules?

5.

Was it a violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
for the Board to have used petitioner's use of alcohol
both as a basis to revoke his parole and as a basis to
deny his release? 1

a parolee to "not possess
unconstitutionally vague
Clause of the Fourteenth
Constitution?
re-

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
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 25-35.
3 - OPINION AND ORDER

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

Id.

case

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)).

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

(1968)

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

imposed

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

render the petition moot.

4 - OPINION AND ORDER

conviction does not

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).

B.

Analysis.

Although respondent

indicates

that

counsel

for

petitioner

objected to the motion to dismiss, petitioner failed to respond to
that motion.

However, in a separate habeas action challenging the

Board's 2008 parole revocation decision, Murphy v. Premo, 6:
cv-00979-JO,
remedy

to

[him]."

11-

petitioner argued that "[t]his Court could fashion a

cure

any period of

invalid

incarceration

See Reply to Motion to Dismiss [40] at 2.

served by

Specifically,

he suggested the Court could shorten his parole term or modify his
parole status by requiring the Board to 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 argued he has a

5 - OPINION AND ORDER

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

Id. at

3 (quoting Spencer, 523 U.S. at 7).
Even assuming petitioner had advanced these arguments in this
case,

the Court would find them 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.

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.

Accordingly,

there is

not a case or controversy and petitioner's claims are moot.

Ill
Ill
Ill
Ill
Ill
6 - OPINION AND ORDER

CONCLUSION

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

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

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

~day of January, 2013.

. Jones
States District Judge

7 - OPINION AND ORDER