Gordon v. Premo
Filing
41
OPINION AND ORDER Petitioner's habeas petition 3 is denied. 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). (See 20 page opinion for more information) Signed on 4/28/15 by Judge Malcolm F. Marsh. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DENNIS LEROY GORDON,
Petitioner,
v.
JEFF PREMO, Superintendent,
Oregon State Penitentiary,
Respondent.
ANTHONY D. BORNSTEIN
Federal Public Defender's Office
101 SW Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, OR 97301-4096
Attorneys for Respondent
MARSH, Judge
1 -- OPINION AND ORDER
Case No. 6:13-cv-01130-MA
OPINION AND ORDER
'petitioner, an inmate at the Oregon State Penitentiary, brings
this
habeas
corpus
proceeding
pursuant
to
28
U.S.C.
2254.
§
Petitioner challenges the constitutionality of the Oregon Board of
Parole and Post-Prison Supervision's deferral of his parole release
date.
For the reasons set forth below,
his habeas petition is
denied.
BACKGROUND
On September 4, 1975, petitioner raped a woman at gunpoint in
her Roseburg home.
After the attack, he threatened the victim that
he or his friends would return to harm her if she told anyone.
Gordon v. Bd. of Parole and Post-Prison Super., 246 Or. App.
602,
267 P. 3d 188
(2011).
600,
Eighteen days later, after the victim
testified before a grand jury, petitioner chartered a plane from
Hood River and returned to the woman's home.
Petitioner drove the
woman and her two youngest children to a secluded location, where
he
stabbed
the
woman
repeatedly
and
placed
her
floorboard of the car at the feet of her children.
body
on
the
Gordon v. Ed.
of Parole and Post-P.rison Superv., 267 Or. App. 126, 128, 340 P. 3d
150
(2014).
Later,
while the victim may still have
~een
alive,
petitioner beheaded her, and buried her body and head at separate
locations.
Id.; Gordon v. Ed. of Parole and Post-Prison Superv.,
343 Or. 618, 620, 175 P.3d 461 (2007); Gordon v. Ed. of Parole and
Post-Pr.ison Superv., 266 Or. App. 405, 408-09, 338 P. 3d 185 (2014);
Gordon, 246 Or. App. at 602-03.
2 -- OPINION AND ORDER
The victim's children were left in
the
family
car
and
found
by
police
several
hours
later.
Petitioner returned to Hood River in the same chartered plane he
Gordon, 246 Or. App. at 603.
arrived in.
In 1976,
petitioner pled guilty to Murder and Rape in the
First Degree.
He received an indeterminate sentence not to exceed
life imprisonment for the murder, and a consecutive indeterminate
20-year sentence for rape.
I.
Resp. Exh. 101.
Relevant Parole Rules
When petitioner committed his
crimes,
scheme was known as the discretionary system.
a
prisoner
serves
an
indeterminate
Oregon's
sentencing
Under that system,
sentence,
and
the
board
periodically considers whether the prisoner is suitable for release
on parole.
In
Gordon,
1977,
the
343 Or. at 620.
state legislature
system with a matrix system.
replaced the discretionary
Id. at 621.
Under the matrix system,
most prisoners receive a firm parole release date,
postponed for statutory reasons only. 1
which may be
See Id. at 621-22.
Unless
the parole release date is postponed, the prisoner must be released
on his parole release date.
180,
187,
998
P. 2d 661
1
Id. at 622; Hamel v. Johnson, 330 Or.
(2000).
Offenders who committed their
The statutory bases for postponing a parole release date
are ( 1) the inmate has engaged in se_rious misconduct while in
prison; (2) the inmate has a severe psychiatric or psychological
disturbance such as to constitute a danger to the health or
safety of the community; and (3) the inmate's parole plan is
inadequate.
Gordon, 343 Or. at 622 (citing ORS 144.125).
3 -- OPINION AND ORDER
crimes before the adoption of the matrix system are permitted to
opt into the matrix system,
and the prisoner's eligibility for
parole is then determined using the rules in effect at the time of
his election.
Gordon, 343 Or. at 622-23.
At all relevant times, ORS 144.125(3) provided that "[i]f 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
the board may order the
postponement of the scheduled release date."
426,
§
2; 1987 Oregon Laws, c. 320
at 627 n.7.
§
1981 Oregon Laws, c.
53; see also Gordon, 343 Or.
In Weidner v. Armenakis, the Oregon Court of Appeals
held that under ORS 144.125(3), the board may consider all relevant
information
in
the record when
considering whether
suffers from a severe emotional disturbance.
18,
959
P.2d
623
reasoning reaff'd.
(1998),
withdrawn
by
a
prisoner
154 Or. App. 12, 17-
order
and readopted in Merrill v.
July
13,
Johnson,
1998,
155 Or.
App. 295, 964 P.2d 284 (1998); Gordon, 343 Or. at 627.
However,' in Peek v. Thompson, the Court of Appeals held that
the board's 1988 adoption of OAR 255-60-006(8)
requires a formal
finding in the psychiatric or psychological evaluation itself as a
prerequisite to the board's authority to postpone a prisoner's
parole
release
date.
4 -- OPINION AND ORDER
160 Or.
App.
260,
264-66,
980
P.2d
178
343 Or. at 628-29. 2
(1999); Gordon,
1988
the
version
psychological
of
report
OAR
Hence,
the
255-60-006,
itself must
if the board applies
support
a
psychiatric
determination
petitioner suffers from a severe emotional disturbance.
or
that
However,
if the board applies the rules in effect in 1984, it may rely on
all pertinent evidence in the record.
See e.g.
Gordon,
267 Or.
App. at 132-33; Gordon, 266 Or. App. at 414.
II.
Petitioner's Parole Board History
• 1984 (First Matrix Election)
On August 1, 1984, petitioner signed an application to receive
a firm parole release date under the matrix system,
remain under the discretionary system.
that same date,
August 10,
1984,
rather than
Resp. Exh. 103 at 76.
On
the board held a Personal Review Hearing and,
issued a Board Action Form
("BAF")
on
calculating
petitioner's matrix range to be 198 to 268 months, and setting a
parole release date of March 15,
2000.
Id.;
Gordon,
343 Or.
at
623.
Petitioner filed an appeal.
transcript for appeal,
had not been recorded.
2
In the process of preparing a
it was discovered that the August hearing
Resp.
Exh.
103 at 77.
As a result,
the
OAR 255-06-006 (8) (1988) provides that "[i] f the
evaluation does not make a finding of severe emotional
disturbance such as to constitute a danger to the health or
safety of the community, the Board shall affirm the parole
release date and set parole conditions." Peek, 160 Or. App. at
264.
5 -- OPINION AND ORDER
board "voided" its August 10, 1984 BAF, and referred the matter to
an "analyst for recomputation of [petitioner's) History /Risk score"
Id. at 205; Gordon,
(a matrix calculation) .
343 Or. at 623.
• 1985 (Discretionary System Election)
On May 15, 1985, petitioner appeared at a parole hearing and
requested that he be considered for parole under the discretionary
system in effect at the time of his crimes.
Resp. Exh. 103 at 81
During a discussion with petitioner, one board member
& 283-84.
agreed with petitioner's assertion that his 1984 matrix election
was invalid because the board action had been voided.
Gordon,
Id. at 284;
Consistent with this understanding,
343 Or. at 624.
the
board's BAF reflects petitioner's election as remaining under the
discretionary system.
Resp.
Exh. 103 at 81 & 209-13.
The board
continued to consider petitioner under the discretionary system
through 1987.
Id. at 210-19; Gordon, 343 Or. at 624.
• 1988 (Second Matrix Election)
On August 27,
1988,
petitioner signed a second application
requesting that he be placed under the matrix system in order to
receive
a
firm
parole
release
Pursuant to that request,
Resp.
date.
Exh.
103
at
the board established a 212-284 month
matrix range, and a parole release date of March 15, 2000
advanced by 7 months to August 15, 1999).
(BAF
#2
&
Jt4);
Gordon,
221.
343
Or.
at
(later
Id. at 224-26 & 229-30
624-25.
The
board
held
additional parole hearings in 1991 and 1994, resulting in no change
6 -- OPINION AND ORDER
to petitioner's August 15, 1999, parole release date.
103 at 234-38
(BAF jf6
&
Resp. Exh.
jf?).
• Deferral of Parole Release Date
On February 2, 1999, the board deferred petitioner's parole
release date by 24 months on the basis that he suffers from a
present severe emotional disturbance such as to constitute a danger
to the health and safety of the community.
& Administrative Review Responses
(ARR)
Id. at 240-52 (BAF #8
#2 & #3).
Petitioner's
parole release date was deferred to August 15, 2001.
In ARR #3,
Id. at 240.
the board explained that its decision to defer
petitioner's parole release date was premised upon petitioner's
election
to
opt
into
the
matrix
system
on
August
27,
1988,
rendering the Peek decision applicable to its decision (requiring
a formal finding in a psychiatric or psychological evaluation in
order to extend petitioner's parole release date).
Id.
at 251.
Relying solely on the psychological evaluation of Dr. Ronald Page,
the board concluded that petitioner suffers from a severe emotional
disturbance.
Id. at 251-52.
On May 2, 2001, the board deferred petitioner's parole release
date an additional 24 months.
Or. App.
at 134.
Gordon, 343 Or. at 630; Gordon, 267
The board again relied upon petitioner's 1988
election into the matrix system,
concluded
that
Dr.
Rubin's
7 -- OPINION AND ORDER
applied the Peek decision,
psychological
report
and .
contained
a
diagnosis of a severe emotional disturbance.
Gordon,
343 Or. at
630.
On administrative review, the board affirmed the deferral of
petitioner's parole release date.
rational,
concluding
that
matrix system in 1984,
However, the board changed its
petitioner
initially
opted
into
the
rendering the Peek decision inapplicable
(thereby allowing the board to consider all relevant information in
the record) .
Id.; Resp. Exh. 103 at 258-59.
Alternatively, the
board concluded that even under Peek, there was some evidence to
support the board's decision.
Resp. Exh. 103 at 259; Gordon, 343
Or. at 628.
• Board Explains Reliance on 1984 Matrix Election
On June 2, 2003, the board reopened for reconsideration ARR jf3
(concerning the
release date).
first
24-month deferral
Resp. Exh. 103 at 285.
of petitioner's parole
The board held that it had
erroneously relied on petitioner's second matrix election in 1988,
rather than his initial election in 1984.
Accordingly, the ARR was
amended to reflect that petitioner made his first matrix election
on August 10, 1984, and that the board was relying upon the rules
in effect in 1984.
Supreme
Court
Resp. Exh. 103 at 285-86 (ARR #5).
reversed,
and
remanded
to
require
the
The Oregon
board
to
provide an explanation for its departure from prior practice of
relying on petitioner's 1988 election.
8 -- OPINION AND ORDER
Gordon, 343 Or. at 635-38.
On remand, the board explained in BAF #14 that it relied on
petitioner's
election,
1984 matrix
rather
than
the
later
1988
in order to avoid the limitations Peek placed on its
discretion.
Resp. Exh. 104, ER-11.
Peek "there was
specific
election,
little
time
frame
reason
for
specifically to this case,
for
opting
The
bo~rd
the
Board to
into
the
contemplate
matrix
or,
a
more
for formulating a practice for when
offenders opt into the matrix,
opt out of the matrix,
attempt to opt into the matrix again."
board held that,
stated that prior to
Id.
and then
Additionally,
the
even under the more restrictive Peek standard,
substantial evidence supported the deferral of petitioner's parole
by 24 months.
Id.
at ER-12.
Administrative review was denied.
Resp. Exh. 101 at 12 (ARR #10).
Petitioner appealed the board's order on the basis that it was
(1) not supported by substantial evidence in the record;
on an erroneous interpretation of the law;
(2) based
( 3) inconsistent with
prior practice; and (4) not logically related to the facts of the
case.
Resp. Exh. 104 at 26.
Additionally, petitioner argued that
the board violated the Due Process Clause of the U.S. Constitution
by "reversing course and deciding that, although it had previously
considered petitioner's 1984 election to be void, that was actually
the effective election date for determining what version of its
rules applied."
Resp. Exh. 104 at 41-42.
9 -- OPINION AND ORDER
In a
responsive
brief,
the
State argued that
the
board's
explanation on remand as to why it relied upon petitioner's 1984
election was fair and rational.
The State also argued that the
board's
suffers
finding
that
petitioner
from a
present
severe
emotional disturbance was supported by substantial evidence in the
record under the 1984 and 1988 rules.
Finally, the State asserted
that petitioner's federal due process argument was unpreserved and,
in any event, lacked merit.
Resp. Exhs. 105 & 113.
The Oregon Court of Appeals affirmed the board's decision,
using
petitioner's
1988 matrix
election
and
applying
the more
restrictive rule announced in Peek (rendering a decision under 1984
rules unnecessary) .
Gordon,
246 Or. App.
at 609-13.
The court
declined to consider petitioner's constitutional arguments on the
basis that they were not sufficiently preserved.
Id. at 612 n.11.
Petitioner sought review by the Oregon Supreme Court, but did not
challenge the Court of Appeals' ruling on the preservation issue.
Resp. Exh. 109.
The Oregon Supreme Court denied review.
Gordon,
352 Or. 341 (2012) . 3
Ill
3
More recently, the Oregon Court of Appeals addressed the
board's 2011 deferral of petitioner's parole release date for 10
years.
The Court of Appeals· rejected petitioner's contention
that his 1984 election was ineffective, and held that the board's
reliance on petitioner's 1984 matrix election (in order to
consider the most information available to the board in reaching
its decision) was rational, fair, and principled.
Gordon, 267
Or. App. at 145-47.
10 -- OPINION AND ORDER
DISCUSSION
Petitioner alleges that the board violated his constitutional
rights to due process, equal protection, and to be free from cruel
and unusual punishment by (1)
failing to release him on his firm
release
1999;
date
of
August
15,
(2)
calculating
his
parole
eligibility based upon evidence outside the psychological report;
and (3) concluding that the psychological report itself supports· a
finding
that
disturbance.
moves
the
petitioner
suffers
Habeas Petition
court
to
deny
from
(ECF No.
habeas
3)
relief
a
severe
at 5-13.
on
petitioner's claims are procedurally defaulted,
the
emotional
Respondent
basis
that
the state-court
decisions are entitled to deference, and petitioner's claims lack
merit.
I.
Procedural Default
Generally, a state prisoner must exhaust his available state
court remedies before seeking federal habeas corpus relief.
U.S.C.
§
2254 (b) (1).
28
If a state prisoner procedurally defaults his
available state remedies, federal habeas relief is precluded absent
a showing of cause and prejudice, or that the failure to consider
his federal
justice.
claims will
result in a
Coleman v. Thompson,
fundamental miscarriage of
501 U.S. 722, 750 (1991).
A state prisoner procedurally defaults his available state
remedies if (1) the state court declines to address the prisoner's
federal claims; and (2) the state court decision rests on a state
11 -- OPINION AND ORDER
procedural rule that is independent of the federal question and
adequate to support the judgment.
1120,
1127
(2011); Maples v.
Walker v.
Thomas,
131 S. Ct.
Martin,
132 S.Ct.
912,
922
(2012);
Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003).
The question of whether a state procedural rule is adequate is
a question of federal law.
Lee v. Kemna, 534 U.S. 362, 375 (2003).
When the respondent pleads the existence of an independent and
adequate
state procedural
rule
as
an
affirmative· defense,
the
burden shifts to the petitioner to demonstrate the inadequacy of
the
state
rule.
The
respondent
bears
the
proving the state rule bars federal review.
ultimate
burden of
Bennett, 322 F.3d at
585-86.
To
be
"adequate,"
a
state procedural
rule
must
be
well-
established and consistently applied in the manner it was applied
to the petitioner.
Walker,
567
(9th Cir.
F.3d 573,
"There
are,
576
however,
131 S.Ct. at 1127; Scott v. Schriro,
2009);
exceptional
Bennett,
cases
in
322
F.3d at
which
583.
exorbitant
application of a generally sound rule renders the state ground
inadequate to stop consideration of a federal question."
Lee, 534
at 376.
In the instant proceeding, respondent argues that petitioner's
due process claims are barred because the Oregon Court of Appeals
expressly rejected
5.45(1).
the
claims
as
unpreserved pursuant
See Gordon, 246 Or. App. at 612 n.11.
12 -- OPINION AND ORDER
to ORAP
Pursuant to that
state
procedural
rule,
"[n] o
matter
claimed
as
error
will
be
considered on appeal unless the claim of error was preserved in the
lower court and is assigned as error in the opening
brief.n
The preservation requirement of ORAP 5.45(1) applies to
judicial
Found.
[appellate]
review
v.
of
Emp't.
administrative
267 Or.
Dept.,
Entrepreneurs
proceedings.
App.
425,
428-29,
340 P.3d 768
(2014); Wahlgren v. Dept. of Transp., Driver & Motor Vehicles Serv.
Branch, 196 Or. App.
452, 457, 102 P.3d 761 (2004).
This court has held repeatedly that ORAP 5.45(1) is adequate
to preclude habeas corpus relief.
5810730 *5 (D.Or. Nov. 7, 2014)
See Ofenham v. Coursey, 2014 WL
(citing cases).
Petitioner argues,
however, that the requirement that a state prisoner first raise his
constitutional
claims
to
constitutional
rights
renders
inadequate
support
the
to
the
adequate state rule doctrine.
very
the
agency
invocation
violated
his
unconstitutional
rule
and
of
that
the
independent
and
I disagree.
There is no unfairness, irregularity, or injustice in a state
appellate court's insistence that an appellant first present his
objection to the agency from which he seeks judicial review.
preservation
requirement
assists
record to facilitate review,
efficiency.
See
in the
development
of a
The
full
and promotes fairness and judicial
Entrepreneurs
Found.,
267
Or.
App.
at
429.
Petitioner offers no convincing support for his argument that the
preservation
rule
violates
13 -- OPINION AND ORDER
due
process.
Hence,
because
petitioner's due process claims were rejected by the Oregon Court
o.f Appeals based upon an independent and adequate state procedural
rule, and in the absence of any showing to excuse this procedural
default, federal habeas corpus relief is precluded.
I similarly reject petitioner's alternate argument that state
remedies are ineffective under 28 U.S.C.
virtue of the fact that he must first
claims to the parole board.
1758639, *7
(D.Or. Jan. 23,
Cir.
cert. denied,
2013),
See
4
by
raise his cionstitutional
Newcomb
v.
Belleque,
2012 WL
2012), aff'd 536 Fed. Appx. 721 (9th
134 S.Ct. 1557
2010 WL 3893936 *2-*3 (D.Or. Sept. 29,
set forth below,
2254(b)(l)(B)(ii),
§
(2014); Baker v. Nooth,
2010).
Alternatively, as
I conclude that petitioner's due process claims
lack merit.
II.
The Merits
A.
Standards
A petition
for
writ
of
habeas
corpus,
filed
by
a
state
prisoner, shall not be granted with respect to any claim that was
adjudicated on the merits in state court unless the adjudication
resulted
in
a
decision
that
was
"contrary to,
or ·involved an
unreasonable application of, clearly established Federal law;'' or
"resulted
in
a
decision
4
that
was
based
on
an
unreasonable
28 U.S.C. § 2254 (b) (1) (B) (ii) excuses the exhaustion
requirement when circumstances exist that render state remedies
ineffective to protect the rights of the petitioner.
14 -- OPINION AND ORDER
determination of the facts in light of the evidence presented."
U.S.C.
§
2254 (d) (1)
(2011).
&
28
(2); Harrington v. Richter, 562 U.S. 86, 100
Cullen v.
The petitioner carries the burden of proof.
Pinholster, 131 S.Ct. 1388, 1398 (2011).
A state court decision involves an unreasonable application of
clearly established federal
law if it correctly identifies the
governing legal standard, but unreasonably applies it to the facts
of the pric;oner's
case.
(2003); Himes v. Thompson,
unreasonable
application
incorrect application.
134
Woodall,
S.Ct.
Andrade,
Lockyer v.
538
U.S.
63,
336 F.3d 848, 852 (9th Cir. 2003).
of
federal
1702
is
different
562 U.S.
Harrington,
1697 I
law
at
"A
(2014).
75
An
from
White
101;
an
v.
state
court's
determination that a claim lacks merit precludes federal habeas
relief
so
long
as
'fairminded
jurists
could disagree'
correctness of the state court's decision."
on
the
562 U.S.
Harrington,
at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004));
White,
134 S.Ct.
at 1706-07;
Burt v.
Titlow,
134 S.Ct.
10,
16
(2013).
B.
Analysis
Petitioner challenges the board's decisions in BAF Jtl4 and ARR
#10 deferring his parole by 24 months.
the
board
diagnosing
considered
a
petitioner
antisocial features.
psychological
with
Resp.
15 -- OPINION AND ORDER
In reaching its decision,
evaluation
Personality
Exh.
by
Disorder,
112 at 39-44;
Exh.
Dr.
Page
NOS,
with
103 at 47.
Additionally, Dr. Page opined that (1) petitioner's version of the
murder
and
rape
was
(2)
demonstrate;
"considerably
petitioner's
more
perspective
potentially manipulative and persuasive;
psychopathology for
mild"
than
may
(3)
be
the
facts
viewed
as
petitioner shows no
which imminent psychiatric referral may be
indicated; (4) the nature of petitioner's crime precludes confident
assessment
of
his
dangerousness
particularly
in
light
of
his
capability to delay gratification and curb his impulses in the
interest
of premeditated execution of his crimes;
and
(5)
his
violence potential may remain high, even though he has programmed
well for many years.
Resp. Exh. 112 at 39-44.
Based on Dr. Page's evaluation and the evidence in the record
as a whole, the board first applied the 1984 rules to conclude that
petitioner suffers from a severe emotional disturbance so as to
constitute a
Resp.
Exh.
danger to the health or safety of the community.
104 at ER-13
In the alternative,
(ARR #10).
solely on Dr.
evidence
(BAF #14);
to
see also Resp. Exh.
the board concluded that based
Page's psychological report,
conclude
that
101 at 9
petitioner
there was sufficient
suffers
from
a
severe
emotional disturbance.
In the instant proceeding, petitioner argues that
(1) under
the 1988 rules, the board violated his right to due process because
Dr.
Page's psychological evaluation does not support the finding
that petitioner suffers from a severe emotional disturbance; and
16 -- OPINION AND ORDER
(2) the board's application of the 1984 rules, is "constitutionally
flawed. " 5
In
S~varthout
v. Cooke, 562 U.S. 216, 220 (2011), the Supreme
Court held that there is no right under the Federal Constitution to
be conditionally released on parole before the expiration of a
valid sentence.
interest
to
procedures.
However, if state law creates a protected liberty
parole,
Id.
the
Due
Process
Clause
requires
fair
In the parole context, the procedural protections
are "minimal," and require only that the state prisoner be given
the opportunity to be heard and a statement of reasons why parole
was denied.
Prison
Id. at 220; Miller v. Oregon Bd. of Parole and Post-
Superv.,
642
F.3d 711,
716
(9th Cir.
Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011).
2011);
Roberts v.
If the state affords
the procedural protections required by Cooke, "that is the end of
the matter for purposes of the Due Process Clause."
Roberts, 640
F.3d at 1046.
Here, assuming that ORS 144.125 (1981) creates a due process
right to early release on parole,
that
he
was
denied
the
6
minimal
petitioner has made no showing
procedural
protections
(the
5
Because petitioner has not addressed his ex post facto or
Eighth Amendment claims, he has failed to demonstrate that habeas
relief is warranted under either constitutional provision.
6
See Miller, 642 F.3d at 714-16 (state parole statute
establishes protected liberty interest when it uses language that
creates a presumption of parole if certain conditions are
satisfied) .
17 -- OPINION AND ORDER
opportunity to be heard and to a written decision) as required by
the Due Process Clause.
Moreover,
assuming that the Due Process
Clause also requires that the board's decision be supported by
"some evidence," and be free
state parole rules,
7
from the arbitrary application of
petitioner has failed to demonstrate that the
board's decision violated those protections.
board's
decision
to
petitioner's August 1,
utilize
the
1984
On the contrary, the
rules,
in
light
1984 election into the matrix system,
of
is
reasonable and supported by "some evidence."
The board explained that its previous reliance on petitioner's
1988 election was because, prior to the Peek decision, there was no
reason to formulate a practice for determining when an offender
first opts into the matrix system.
petitioner!' s
1984
election
because
The board choose to rely upon
it
permitted
the
board
to
consider the most information possible for making its decision.
The fact that the board had voided its August 10, 1984, order, did
not
necessarily
void
petitioner's
proceed under the matrix system.
7
1984
signed
application
In sum, the board's determination
See Branham v. Davison, 433 Fed.Appx. 491, 492 (9th Cir.
May 20, 2011) ("even after Cooke the Due Process Clause must
still protect parole applicants against truly arbitrary
determinations to deny parole-such as those based on random
factors unrelated to the applicant's own record"); Castro v.
Terhune, 712 F.3d 1304, 1314 n. 4 (9th Cir. 2013) (prison
officials' validation of inmates as gang affiliates must be
supported by "some evidence") .
18 -- OPINION AND ORDER
to
that petitioner elected into the matrix system in 1984 was not
arbitrary and is supported by some evidence.
The board's alternate decision to defer petitioner's parole
under the 1988 rules,
evaluation,
is
also
based solely on Dr.
supported
by
Page's psychological
evidence.
some
Dr.
Page's
diagnosis that petitioner suffers from a personality disorder with
antisocial features; that petitioner has minimized the facts of his
crimes and is potentially manipulative and persuasive;
petitioner's
evidence
potential
that
for
petitioner
violence
may
remain
suffers
from
a
and that
high,
severe
is
some
emotional
disturbance rendering him a danger to the health and safety of the
community.
In sum, petitioner has failed to demonstrate that the board's
deferral of his parole release date violated his
process.
to due
The state courts' rejection of his due process claims is
neither contrary to,
nor an unreasonable
established
law.
warranted.
right
federal
28 U. S.C.
§
Ill
Ill
Ill
Ill
Ill
Ill
19 -- OPINION AND ORDER
Accordingly,
2254 (d) (1).
applic~tion
habeas
of, clearly
relief
is
not
CONCLUSION
Based on the foregoing, petitioner's habeas petition (ECF No.
3)
is
denied.
Because
petitioner
has
not made
a
substantial
showing of the denial of a constitutional right, a certificate of
appealability is DENIED.
DATED this
See 28 U.S.C.
§
2253(c) (2).
;J.,5' day of April, 2015.
~~m~
Malcolm F. Marsh
United States Magistrate Judge
20 -- OPINION AND ORDER
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