McClure v. Premo
Filing
43
OPINION AND ORDER. The Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c) (2). Signed on 9/4/2014 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PHILIP W. McCLURE,
Civil No.
6:13-cv-00928-BR
Petitioner,
OPINION AND ORDER
v.
JEFF PREMO, Superintendent,
Oregon State Penitentiary,
Respondent.
PHILIP W. McCLURE
SID #5072942
Oregon State Penitentiary
2605 State Street
Salem, OR 97310-0505
Petitioner Pro Se
ELLEN F. ROSENBLUM
Attorney General
SAMUEL A. KUBERNICK
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Attorneys for Respondent
1 - OPINION AND ORDER -
BROWN, Judge.
Petitioner,
an
inmate
at
the
Oregon
State
Penitentiary,
brings this habeas corpus action pursuant to 28 U.S.C.
se.
For the reasons that follow,
§
2254 pro
the Court DENIES the Petition
for Writ of Habeas Corpus.
BACKGROUND
On June 15,
1979,
Petitioner was convicted of Rape in the
First Degree and sentenced to 20 years of imprisonment.
Exh. 101.
Resp.
On February 14, 1983, while Petitioner was on parole
release from the 1979 conviction, a jury convicted him on charges
of Rape in the First Degree, Sodomy in the First Degree, Kidnap in
the First Degree,
and Robbery in the First Degree.
Resp.
Exh.
103.
The trial court imposed four consecutive 20-year sentences
with
four
consecutive
10-year
minimum
consecutive to Petitioner's 1979 sentence.
terms,
all
to
run
Resp. Exh. 101.
Following the 1983 conviction, the Oregon Board of Parole and
Post-prison Supervision (the "Board ") held an initial prison term
hearing and overrode the judicially imposed minimum sentences.
Resp. Exh. 103, pp. 131-13 2 .
The Board established a matrix range
of 240 to 320 months, and set an initial release date in October
2002.
I d.
The Board subsequently deferred Petitioner's parole
for 24 months each time after hearings conducted in 2002, 2004,
2006, and 2008.
and
156-161.
Resp. Exh. 103, pp. 136-138, 141-143, 150-155,
Each
time,
2 - OPINION AND ORDER -
Petitioner
requested
administrative
review,
147-149,
but the Board denied relief.
150-155.
Resp.
Exh.
pp.
139-140,
Petitioner also sought federal habeas corpus
relief following each parole deferral, but each time habeas corpus
See McClure v . Hill, 2003 WL 23484594 (D. Or.,
relief was denied.
Apr. 8, 2004), adopted by 2004 WL 1079225 (D. Or., May 11, 2004);
McClure
v.
adopted by
Belleque,
2012
WL 2192248
2012 WL 2192238
(D. Or.,
(D.
Or.,
Mar.
5,
2012),
2012) ; McClure v.
June 13,
Premo, 2012 WL 4601903 (D. Or., May 15, 2012), adopted by 2012 WL
4593267 (D. Or., Oct. 1, 2012); McClure v. Premo, 2013 WL 3347370
(D. Or., June 28, 2013).
On April 21,
2010,
the Board deferred Petitioner's parole
release for an additional 24 months.
Petitioner
sought
administrative
Resp.
review
deferring release, which was denied.
of
Exh.
the
pp.
234-236.
Board's
order
Resp. Exh. 103, pp. 243-245.
Petitioner then filed a petition for review with the Oregon Court
of Appeals.
Resp. Exh. 102.
The Oregon Court of Appeals affirmed
without opinion,
and the Oregon Supreme Court denied review of
that
McClure
decision.
v.
Board
of
Parole
and
Post-Prison
Supervision, 254 Or. App. 758, 297 P.3d 35, rev. denied, 353 Or.
562, 302 P.3d 1182
(2013).
On January 4, 2013, Petitioner filed this Petition for Writ
of Habeas Corpus
Pursuant to 28
U.S. C.
§
2254
Petitioner's claims are summarized as follows:
3 - OPINION AND ORDER -
in this Court.
Ground One:
Petitioner's due process rights were
violated when the Board and its psychologist failed to
apply an accepted medical standard and proper medical
protocol in making findings that Petitioner suffers from
a present severe emotional disturbance or personality
disorder.
Ground Two: The Board violated Petitioner's due process
rights by failing to adhere to administrative rules when
the Board did not make specific rulings on Petitioner's
challenges to evidence.
Ground Three:
The Board violated Petitioner's due
process rights because they did not afford him the
opportunity to cross-examine the psychologist.
Ground Four:
The Board violated Petitioner's
process rights by making findings which were
supported by some evidence.
due
not
Ground Five:
The Board violated Petitioner's due
process rights by relying upon the unconstitutionally
vague term of "severe emotional disturbance" to defer
Petitioner's parole release date.
Respondent
Petitioner's
argues
the
Court
claims because
should
deny
relief
they were denied in a
decision that is entitled to deference,
on
all
of
state-court
and because they lack
merit.
LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of
1996 ("AEDPA"), an application for a writ of habeas corpus shall
not be granted unless adjudication of the claim in state court
resulted in a decision that was:
(1) "contrary to, or involved an
unreasonable application of, clearly-established federal law, as
determined by the Supreme Court of the United States" or (2) was
4 - OPINION AND ORDER -
"based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding."
§
28 U.S.C.
2254 (d).
A state court decision is " contrary to" federal law under the
AEDPA
if
it
either
fails
to
apply
the
correct
Supreme
Court
authority or applies the correct controlling authority to a case
,.
involving
"materially
different result.
(2000).
indistinguishable"
Williams v.
Similarly,
a
governing
but
reaches
a
529 U.S. 362, 405-07, 413
state court decision is an unreasonable
application of federal
correct
Taylor,
facts
law "if the state court
legal
principle
from
[the
identifies the
Supreme]
Court's
decisions but unreasonably applies that principle to the facts of
the prisoner's case."
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)
(citations omitted).
An unreasonable application of federal law is a different
than
an
incorrect
application
of
federal
law.
Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012).
Hibbler
v.
"' [T]he question
. is not whether a federal court believes the state court's
determination was incorrect but whether that determination was
unreasonable-a
(quoting
substantially higher
Schriro
v.
Landrigan,
threshold. ' "
550
U.S.
465,
Id.
473
at
1146
(2007)).
Moreover, the state court's findings of fact are presumed correct,
and a petitioner bears the burden of rebutting that presumption by
clear and convincing evidence. 28 U.S.C. § 2254 (e) (1).
5 - OPINION AND ORDER -
DISCUSSION
Petitioner alleges the Board violated his due process rights
in the five respects delineated above when the Board decided to
defer
Petitioner's
parole
release
date
for
an
additional
24
months.
Where state law creates a liberty interest in parole,
the
Supreme Court has held that "the Due Process Clause requires fair
procedures for its vindication-and federal courts will review the
application
of
those
Swarthout v.
Cooke,
required
satisfy
to
constitutionally
131 S.Ct.
due
859,
process
862
required
(2011).
procedures."
The procedures
requirements
in
the
parole
context, however, are minimal, and include only an opportunity to
be heard and provision of a
parole was denied.
I d.
statement of the reasons why the
(citing Greenholtz v.
Inmates of Neb.
Penal and Correctional Complex, 442 U.S. 1, 16 (1979)).
"[b] ecause the only
federal
Further,
right at issue is procedural,
relevant inquiry is what process
[the petitioner]
the
received, not
whether the state court decided the case correctly."
Id. at 836
(emphasis supplied) .
Here,
assuming without deciding that Oregon law creates a
liberty interest
in parole 1 ,
1
Petitioner received at
least
the
Because Petitioner received the process due under Swarthout,
the Court need not decide whether Oregon law creates a protected
liberty interest in parole release.
See Pedro v. Oregon Parole
6 - OPINION AND ORDER -
minimal amount of required process: the Board provided Petitioner
with a copy of the examining psychologist's written report prior
to the parole hearing, Petitioner was allowed to present evidence
and argument before and at the hearing,
and the Board notified
Petitioner in writing of the reasons why his parole release date
was deferred.
The Board did not violate Petitioner's rights under the Due
Process Clause, and the decision denying his release on parole was
not
contrary
to
or
an
established federal law.
unreasonable
application
of
clearly
Accordingly, Petitioner is not entitled
to habeas corpus relief under 28 U.S.C. § 2254.
CONCLUSION
For these reasons, the Court DENIES the Petition for Writ of
Habeas Corpus and DISMISSES this action.
The Court DENIES a certificate of appealability as Petitioner
has
not
made
a
substantial
constitutional right.
showing
See 28 U.S.C.
§
of
the
denial
of
2253(c) (2).
IT IS SO ORDERED.
Qr\
DATED this
Lf
day of September, 2014.
=~
United States District Judge
825 F.2d 1396, 1398 (9 th Cir. 1987) (conclusion that inmate
received process due under prior Supreme Court decision on parole
release relieved court of necessity of addressing existence of
liberty interest).
Bd.,
7 - OPINION AND ORDER -
a
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