Cunio v. Brown et al
Filing
74
Opinion and Order signed on 2/20/2020 by Magistrate Judge Mustafa T. Kasubhai: The Court grants Plaintiff's Motion for Summary Judgment (ECF No. 57 ) and denies Defendants' Cross-Motion for Summary Judgment (ECF No. 60 ) as moot. The Parole Board shall hold a Miller hearing consistent with this Opinion and Order. (jk)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
STERLING RAY CUNIO,
Plaintiff,
Case No. 6:14-cv-01647-MK
OPINION AND ORDER1
v.
KATE BROWN, in her Official Capacity as
Governor of the State of Oregon, COLLETTE
S. PETERS, in her Official Capacity as
Director of the Oregon Department of
Corrections; MICHAEL HSU in his
Official Capacity as Chairperson, Oregon
Board of Parole and Post-Prison Supervision;
jointly and severally,
Defendants.
______________________________________
KASUBHAI, Magistrate Judge:
INTRODUCTION
Plaintiff filed this action against Defendants alleging violations of the Eighth and
Fourteenth Amendments under 42 U.S.C. § 1983. Before the Court are Plaintiff’s Motion for
Summary Judgment (ECF. No. 57) and Defendants’ Cross-Motion for Summary Judgment (ECF
No. 60). On December 10, 2019, the Court heard oral argument.
For the reasons set forth below, the Court grants Plaintiff’s Motion for Summary
Judgment (ECF No. 57) and denies Defendants’ Cross-Motion for Summary Judgment (ECF No.
60) as moot.
1
Both parties consented to full jurisdiction by a U.S. Magistrate Judge.
PAGE 1—OPINION AND ORDER
BACKGROUND
In August 1994, Plaintiff Sterling Cunio was convicted and sentenced for offenses he
committed when he was 16 years old. Third Am. Comp. ¶ 18, ECF No. 43. Under Oregon law in
1994, Plaintiff was sentenced using a bifurcated sentencing scheme of indeterminate and
determinate sentences. Id. ¶ 5. Under an indeterminate sentence, a sentencing court imposes a
maximum sentence. Id. ¶ 6. And, under Oregon Revised Statute § 163.105, a sentencing judge in
1994 was required to impose an indeterminate life sentence on any person convicted of
aggravated murder. Id. ¶ 10. In comparison, under a determinate sentence, a sentencing court
imposes a definite duration of incarceration that the Oregon Board of Parole and Post-Prison
Supervision (“Parole Board”) cannot alter. Id. ¶ 7.
Plaintiff was convicted and sentenced to a combination of indeterminate and determinate
sentences, as follows:
Count 1: Aggravated Murder
Indeterminate: Life
Count 2: Aggravated Murder
Indeterminate: Life, consecutive to Count 1
Count 5: Kidnapping in the First Degree
Determinate: 140 months in prison, 36 months
of Post-prison supervision (“PPS”),
consecutive to Counts 1 and 2
Determinate: 120 months in prison, 36 months
of PPS, consecutive to Counts 1, 2, and 5
Determinate: 20 months in prison, 36 months
of PPS, consecutive to Counts 1, 2, 5, and 6
Determinate: 20 months in prison, 36 months
of PPS, consecutive to Counts 1, 2, 5, and 6,
and concurrent with Count 7
Count 6: Kidnapping in the First Degree
Count 7: Robbery in the First Degree
Count 8: Robbery in the First Degree
Id. ¶ 18. Plaintiff received two consecutive life sentences for his indeterminate sentences and
280 months in prison with 108 months of PPS for his determinate sentences. Id.
Under Oregon Revised Statute § 144.125, when an Oregon Circuit Court imposes a
determinate sentence consecutive to an indeterminate life sentence, a person does not begin
PAGE 2—OPINION AND ORDER
serving the consecutive determinate sentence until after the Parole Board holds an “exit
interview” hearing. Id. ¶ 17. At an exit interview hearing, the Parole Board considers evidence of
the person’s rehabilitation to determine whether it will affirm or defer the person’s scheduled
release date. Id. ¶¶ 15, 16. However, under Oregon Revised Statute § 144.120, an exit interview
hearing will be scheduled only after the Parole Board sets a “prison term” hearing. Stipulation of
Facts ¶ 9, ECF No. 53.
In October 2012, the Parole Board held a prison term hearing for Plaintiff’s indeterminate
sentences and established a 576-month-to-life prison term for Plaintiff’s aggravated murder
convictions. Third Am. Comp. ¶ 20, ECF No. 53. For Plaintiff’s aggravated murder convictions,
the Parole Board projected an April 2042 release date. Id. Accordingly, Plaintiff could be
released from the combined indeterminate and determinate sentences in April 2065 when he is
88 years old. Id. Plaintiff sought administrative review of the Parole Board’s prison term hearing,
but in October 2013, the Parole Board denied Plaintiff relief by adhering to its October 2012
order. Id. ¶ 21.
Consequently, Plaintiff filed his first appeal to the Oregon Court of Appeals. Id. ¶ 22. In
November 2017, the Court of Appeals reversed the Parole Board’s order and remanded the order
to the Parole Board to set a new prison term hearing. Id. On remand, the Parole Board scheduled
a new prison term hearing for November 2018. Id. ¶ 23. However, the appellate court declined to
reach the question of whether the Parole Board’s “adult matrix” rules violated the Eighth
Amendment. Id. ¶ 22. Plaintiff sought reconsideration from the Court of Appeals only on that
issue, but the appellate court denied reconsideration. Id. Plaintiff then sought review from the
Oregon Supreme Court, but was denied review. Id. Plaintiff filed a second state appeal
PAGE 3—OPINION AND ORDER
challenging his 1994 convictions. Id. ¶ 24. In 2017, the Court of Appeals affirmed. Id.
Subsequently, the Oregon Supreme Court held Plaintiff’s petition for review in abeyance.
Concurrent with Plaintiff’s state court proceedings, he also sought declaratory judgment
from the District Court. Id. ¶ 27. Under the Younger abstention doctrine, this Court dismissed
Plaintiff’s complaint after concluding that Plaintiff could raise the same challenges in state court.
Pl.’s Mot. Summ. J. 8, ECF No. 57. The Ninth Circuit Court of Appeals reversed, holding that
None of these [state court] proceedings provided Cunio an ‘adequate’ and ‘full
and fair’ opportunity to challenge the combined effect of his sentences as a de
facto sentence without parole, or to challenge the constitutionality of Oregon’s
bifurcated sentencing scheme for juveniles convicted of homicide and nonhomicide crimes in a single judgment. The district court therefore should not have
abstained.
Cunio v. Brown, 692. Fed. Appx. 464, 465 (9th Cir. 2017). This case is now before this Court.
FACTUAL ALLEGATIONS
Plaintiff filed his Third Amended Complaint on July 31, 2018. Third Am. Compl., ECF
No. 43. Defendants’ Answer to the Third Amended Complaint, filed on September 4, 2018,
denied the substance of Plaintiff’s allegations and his entitlement to relief. ECF No. 45.
Defendants asserted four affirmative defenses, including failure to state a claim, Heck
preclusion,2 Younger abstention,3 and claim and issue preclusion. Id. ¶¶ 12-21.
Defendants deny Plaintiff’s allegations that the Parole Board applies an “adult matrix” to
juveniles convicted of aggravated murder, that it does not consider evidence of rehabilitation at
the prison term hearing, and that the exit interview is the first time that the Parole Board
considers evidence of rehabilitation or maturity. Id. ¶ 2. In addition, Defendants deny that
Plaintiff knew the effect of Oregon’s bifurcated sentencing scheme on him on October 17, 2012,
2
3
See infra at 14-17.
See infra at 17.
PAGE 4—OPINION AND ORDER
that Oregon’s sentencing scheme and judicial review process prevent Plaintiff from having an
adequate opportunity to obtain a ruling on the merits in that court, and that the sentencing
scheme denies Plaintiff a meaningful opportunity for release during his lifetime. Id. ¶ 3.
Following Defendants’ Answer, Plaintiff filed a Stipulation of Facts that restates the
material historical and procedural facts of this case. ECF No. 53. On April 16, 2019, Plaintiff
filed a Motion for Summary Judgment. ECF No. 57. Plaintiff moved for summary judgment in
all claims made in his Third Amended Complaint and challenged Defendants’ affirmative
defenses. Id. On May 21, 2019, Defendants responded to Plaintiff’s Motion for Summary
Judgment and filed a Cross-Motion for Summary Judgment. ECF No. 60. In that document,
Defendants asserted that: (1) Plaintiff’s claims are not ripe; (2) the relief Plaintiff seeks are not
cognizable under 42 U.S.C. § 1983; (3) Defendants are immune from suit and are not “persons”
under § 1983; (4) Defendant Thompson is entitled to quasi-judicial immunity from injunctive
relief; (5) Plaintiff’s combined sentences are not unconstitutional; (6) whether Plaintiff has been
rehabilitated is immaterial; and (7) Plaintiff’s application of Oregon Revised Statute § 161.620 is
incorrect and irrelevant. Id. at 20-35.
On July 22, 2019, Plaintiff filed a reply to Defendants’ Response to Plaintiff’s Motion for
Summary Judgment and responded to Defendants’ Cross-Motion for Summary Judgment. ECF
No. 69. In that filing, Plaintiff rejected Defendants’ assertions and supplemented his Statement of
Facts with recent developments regarding Plaintiff’s prison term hearing and changes in Oregon
law. Id. Plaintiff noted that a prison term hearing was scheduled for Plaintiff on October 2, 2019,
and most notably, informed the Court of legislation passed by the Oregon Legislature in 2019.
Id. at 3-4. The Court finds the legislative history of Senate Bill (“SB”) 1008 instructive and
quotes Plaintiff’s brief below:
PAGE 5—OPINION AND ORDER
The 2019 Oregon Legislature changed Oregon’s sentencing scheme for children
tried as adults by enacting [SB] 1008. That bill requires a Miller hearing before
the Oregon Board of Parole and Post-Prison Supervision (the board) for every
person convicted of a crime that the person committed as a child who has served
15 years in prison, regardless of the crimes of conviction or whether the
sentencing court imposed consecutive sentences. SB 1008 § 25 (Or. 2019). SB
1008 also requires a state court to hold a “second look” hearing for a person in
Oregon Department of Corrections (ODOC) custody who was convicted of a
crime the person committed as a child when the person has served half of his or
her sentence. SB 1008 § 22. Those sections of the bill apply to sentences imposed
on or after January 1, 2020. Id. at § 32. The bill thus does not require the board to
hold a Miller hearing for Mr. Cunio, and it does not require a court to hold a
second look hearing for Mr. Cunio.
Id. at 2. Plaintiff continued:
Defendants Collette Peters and Michael Hsu testified in support of SB 1008. They
acknowledged in their testimony that current science and case law conclusively
establish that children should be provided with a meaningful opportunity for
release, regardless of the crime they committed or their sentence structure. Public
Hearing on SB 1008 Before H. Comm. on Judiciary, 80th Leg. (Or. Apr. 24,
2019) (testimony of Michael Hsu, available at
http://oregon.granicus.com/MediaPlayer.php?clip_id=d12b2e34-3fb3-43d0-8f83b616d9d8e1f5&meta_id=03daf112-0fca-47f9-98d6-4841587eafdf) (testifying in
support of SB 1008 that “juveniles should have a meaningful opportunity to
obtain release”); Ex. 13 (written testimony of Collette Peters on SB 1008) (“This
bill represents our current and best understandings of creating public safety and
are rooted in what we know now from neuroscience about juvenile brain
development.”). Nonetheless, Defendants in this litigation claim that Oregon’s
sentencing scheme—the very scheme that they testified should be changed
moving forward—suffers from no constitutional infirmities as applied to Mr.
Cunio. Yet the central truth driving Miller and SB 1008 is that people convicted
of crimes as children, even murder, are very likely to be rehabilitated and are
entitled to a hearing where a trier of fact determines whether to release them from
prison with a meaningful chance to reintegrate into the community.
Id. at 3. Defendants subsequently replied by relying on their Cross-motion for Summary
Judgment (ECF No. 60). ECF No. 71.
PLAINTIFF’S CLAIMS
Plaintiff brings two claims. Plaintiff alleges that Oregon’s bifurcated sentencing scheme
and Defendants’ refusal to provide him a Miller hearing violates his rights under the Eighth and
PAGE 6—OPINION AND ORDER
Fourteenth Amendments under 42 U.S.C. § 1983. Pl.’s Mot. Summ. J. 21-23, ECF No. 57. As a
remedy, Plaintiff asks this Court to order Defendants to provide Plaintiff with a Miller hearing so
that Plaintiff has a meaningful opportunity to be obtain release. Third Am. Compl. ¶ 68, ECF No.
43.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The
movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not
thereby relieved of his own burden of producing in turn evidence that would support a jury
verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In determining whether a
motion for summary judgment should be denied or granted, “the judge must view the evidence in
the light most favorable to the nonmoving party.” McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir. 1988).
When parties file cross-motions for summary judgment, the court “evaluate[s] each
motion separately, giving the non-moving party in each instance the benefit of all reasonable
inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)
(quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,
674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the]
same standard.”). In evaluating the motions, “the court must consider each party’s evidence,
regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632
F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial,
the moving party need only prove that there is an absence of evidence to support the non-moving
party’s case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the
PAGE 7—OPINION AND ORDER
non-moving party bears the burden of designating “specific facts demonstrating the existence of
genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed
that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as
to the material facts at issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
DISCUSSION
Plaintiff argues that he is entitled to summary judgment on Defendants’ four affirmative
defenses for failure to state a claim, Heck preclusion, Younger abstention, and claim and issue
preclusion. Pl.’s Mot. Summ. J. 12, ECF No. 57. In response, Defendants filed a Cross-Motion
for Summary Judgment asserting that: (1) Plaintiff’s claims are not ripe; (2) the relief Plaintiff
seeks are not cognizable under 42 U.S.C. § 1983; (3) Defendants are immune from suit and are
not “persons” under § 1983; (4) Defendant Thompson is entitled to quasi-judicial immunity from
injunctive relief; (5) Plaintiff’s combined sentencing scheme is not unconstitutional; (6) whether
Plaintiff has been rehabilitated is immaterial; and (7) Plaintiff’s application of Oregon Revised
Statute § 161.620 are incorrect and irrelevant. Defs.’ Mot. Summ. J. 20-35, ECF. No. 60.
I. Failure to State a Claim and Due Process
Initially, Defendants argued that Plaintiff failed to plead facts suggesting that the
procedures employed by the Parole Board violate his rights under Eighth or the Fourteenth
Amendments. Answer ¶ 13, ECF No. 45. Plaintiff also argues that Oregon’s bifurcated
sentencing scheme and Defendants’ refusal to provide a him a meaningful opportunity for
release violates his rights under the Eighth and Fourteenth Amendments. Pl.’s Mot. Summ. J. 2123, ECF No. 57. Further, Defendants contend that Plaintiff failed to plead facts that would
suggest that Defendant Peters has any knowledge of involvement with Plaintiff’s alleged due
PAGE 8—OPINION AND ORDER
process violations. Id. ¶ 14. Defendants contend that because Plaintiff’s claims are not ripe, this
Court lacks jurisdiction. Defs.’ Mot. Summ. J. 20-23, ECF. No. 60.
A. Supreme Court cases of Miller and Montgomery
The prohibition against cruel and unusual punishment in the Eighth Amendment
“guarantees individuals the right not to be subjected to excessive sanctions.” Roper v. Simmons,
543 U.S. 551, 560 (2005). “The concept of proportionality is central to the Eighth Amendment.”
Graham v. Florida, 560 U.S. 48, 59 (2010). Proportionality is “‘the basic precept of justice that
punishment for crime should be graduated and proportioned’ to both the offender and the
offense.” Miller v. Alabama, 567 U.S. 460, 469 (2012) (quoting Roper, 543 U.S. at 560;
quotation in Roper omitted). Courts evaluate proportionality primarily “according to ‘the
evolving standards of decency that mark the progress of a maturing society’” and not in light of
historical sentencing practices. Id. (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976);
quotation in Estelle omitted).
The Eighth Amendment also prohibits a state from sentencing a child to life in prison for
a homicide offense, unless the sentencer presumes that the offense was the product of the
transience of youth, but nonetheless finds that the child is one of the rare children who is
irrevocably corrupt. Id. at 479; Montgomery v. Louisiana, 136 S. Ct. 718, 726 (2016). A sentence
of life without parole imposed on a child “whose crime reflects transient immaturity . . . is
disproportionate under the Eighth Amendment.” Montgomery, 136 S. Ct. at 735. The Supreme
Court clarified the substantive rule from Miller when it held the rule applies retroactively to
cases on collateral review in state court. Id. at 732. Miller also requires a court to hold a hearing
at which “youth and its attendant circumstances are considered as sentencing factors[.]” Id. at
733-734.
PAGE 9—OPINION AND ORDER
The rule from Miller also applies to a discretionary life without parole sentence, even
though Miller arose from states that required a sentencing court to impose life without parole on
a child. In Montgomery, the Supreme Court indicated that Miller applies to states with
discretionary schemes. The Court held that “[e]ven if a court considers a child’s age before
sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment
for a child whose crime reflects unfortunate yet transient immaturity. Montgomery, 136 S. Ct. at
734. Thus, a court “considers a child’s age before sentencing him or her to a lifetime in prison”
in states like Oregon, in which a court has discretion in imposing the sentence. Id.
After Montgomery, the Supreme Court granted several cases certiorari, vacating and
reversing state court judgments. The Supreme Court sent five cases back to the Arizona state
courts for reconsideration. One case involved a juvenile who was convicted of multiple counts of
homicide and non-homicide offenses against two victims and under a discretionary sentencing
scheme, sentenced to consecutive life sentences under a sentencing scheme that was
discretionary, not mandatory, life without parole. State v. Purcell, No. CA-CR 13-0614 PRPC,
2015 WL 2453192 (Ariz. App. May 21, 2015), vacated and remanded by Purcell v. Arizona, 137
S. Ct. 369 (2016). The trial court had the option to sentence the Defendants to life or life with
possible parole after 25 years. Purcell, 2015 WL 2453192, at *1. In Tatum, Justice Sotomayor
references the sentencing of the juvenile defendant in Purcell v. Arizona. Tatum v. Arizona, 137
S. Ct. 11, 12 (2016). Justice Sotomayor explained that the Eighth Amendment requires more than
consideration of an offender’s youth, even when the juvenile offender killed two people:
It is clear after Montgomery that the Eighth Amendment requires more than mere
consideration of a juvenile offender’s age before the imposition of a sentence of
life without parole. It requires that a sentencer decide whether the juvenile
offender before it is a child “whose crimes reflect transient immaturity” or is one
of “those rare children whose crimes reflect irreparable corruption” for whom a
life without parole sentence may be appropriate.
PAGE 10—OPINION AND ORDER
Tatum, 137 S. Ct. at 12. (Sotomayor, J., concurring) (internal citation omitted). Thus, this Court
finds that Miller applies to a state with a discretionary sentencing scheme.
B. Term-of-years sentences
Plaintiff contends that a term-of years sentence violates the Eighth Amendment under
Miller when it denies a juvenile a meaningful opportunity for release from prison. Pl.’s Mot.
Summ. J. 18, ECF No. 57. In a habeas case concerning non-homicide offenses, the Ninth Circuit
held that a state court decision was contrary to clearly established federal law because there is no
material difference, for Eighth Amendment purposes, between an aggregate term-of-years
sentence that results in de facto life without parole for a juvenile, and a life without parole
sentence. Moore v. Biter, 725 F.3d 1184, 1191 (9th Cir. 2013). In Moore, the Court imposed an
aggregate 254-year sentence, and although the state was not required to guarantee his release, the
Eighth Amendment required the state to provide Defendant Moore with “‘some meaningful
opportunity’ to reenter society.” Id. at 1194 (quoting Graham, 560 U.S. at 75). The Court
reached that conclusion by recognizing that the evolving standards of decency enshrined in the
Eighth Amendment requires a state sentencing scheme to acknowledge the offender’s potential
for maturity and rehabilitation. Id. at 1191-94.
Plaintiff also argues that the science on child and juvenile delinquency relied on in Roper,
Graham, and Miller also supports the conclusion that the rule from Miller applies to a term-ofyears sentence that denies a meaningful opportunity for release based on demonstrated maturity
and rehabilitation. Pl.’s Mot. Summ. J. 18, ECF No. 57. Most juvenile offenders will mature and
outgrow their criminal behavior as they mature. Roper, 543 U.S. at 570 (citing Steinberg &
Scott, Less Guilty by Reason by Adolescence: Development Immaturity, Diminished
Responsibility, and the Juveniles Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)).
PAGE 11—OPINION AND ORDER
Thus, the Court finds that a “meaningful opportunity” must come early enough in a
person’s life to pursue education, employment, and reintegration into society. Under Oregon’s
bifurcated sentencing scheme, Plaintiff could be released from the aggregate indeterminate and
determinate sentences in April 2065 when he is 88 years old. As such, Oregon’s bifurcated
sentencing scheme violates the Eighth and Fourteenth Amendments because the sentencing
scheme provides no way for Defendants to provide Plaintiff with a meaningful opportunity for
release.
C. Oregon’s bifurcated sentencing scheme violates the Eighth Amendment
Plaintiff contends that Oregon’s bifurcated sentencing scheme denies Plaintiff a
meaningful opportunity for release during his life in violation of the Eighth Amendment. Pl.’s
Mot. Summ. J. 21, ECF No. 57. The Court in Miller recognized a very narrow exception to the
general rule that a state must provide a juvenile with a meaningful opportunity for release based
upon demonstrated maturity and rehabilitation. Miller, 567 U.S. at 479. That exception applies
only when: (1) a state sentencing scheme affords a sentencer discretion to impose life without
parole for a homicide conviction; (2) the sentencer holds an individualized sentencing hearing
that involves the consideration of the unique and mitigating qualities of the juvenile’s youth; (3)
the sentencer concludes that the juvenile is “the rare juvenile offender whose crime reflects
irreparable corruption[,]” Id. at 479-480 (quoting Roper, 543 U.S. at 573) (internal quotations
omitted); and (4) the sentencer imposes a sentence of life without parole for a homicide
conviction, Miller, 567 U.S. at 478-481. If those conditions are not met, then a state must provide
a juvenile with a meaningful opportunity for release even if the juvenile was convicted of
homicide. Id.
PAGE 12—OPINION AND ORDER
Here, the exception from Miller does not apply because neither the sentencing judge nor
the Parole Board concluded that Plaintiff is irreparably corrupted or incapable of rehabilitation.
The sentencing judge did not presume that Plaintiff was capable of rehabilitation or find that
Plaintiff was irreparably corrupt. Pl.’s Mot. Summ. J. Ex. 2, ECF No. 57. During Plaintiff’s
prison term hearing in 2012, the Parole Board refused to consider evidence of his rehabilitation.
Cunio v. Board of Parole and Post-Prison Supervision, 288 Or. App. 459, 407 P.3d 839 (2017),
rev den, 418 P.3d 758 (2018). Because Oregon’s bifurcated sentencing scheme denies Plaintiff a
meaningful opportunity for release during his life in violation of the Eighth Amendment, the
Court grants Plaintiff’s summary judgment on his first claim.
D. Denying a meaningful opportunity for release violates the Fourteenth
Amendment
Plaintiff’s second claim alleges that the Defendants denied him a meaningful opportunity
for release in violation of the Due Process Clause of the Fourteenth Amendment. Pl.’s Mot.
Summ. J. 22-23, ECF No. 57. This Court finds that the combined effect of the Parole Board’s
2012 decision to refuse to hear evidence of Plaintiff’s rehabilitation and the consecutive
sentencing guideline sentences deny Plaintiff of the release hearings to which he is entitled, in
violation of due process of law. Greenholz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.
1, 7 (1979); Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Thus, Plaintiff is entitled to
summary judgment on his second claim. See also Greiman, 2015 U.S. Dist. LEXIS at 28
(denying the defendant’s motion to dismiss the plaintiff’s Fourteenth Amendment claim).
Because Defendants’ refusal to provide Plaintiff with a meaningful opportunity for release denies
him due process in violation of the Fourteenth Amendment, the Court grants Plaintiff’s summary
judgment on his second claim.
PAGE 13—OPINION AND ORDER
II. Heck Preclusion Doctrine
A. Claims under 42 U.S.C. § 1983
Plaintiff contends that the Heck doctrine does not apply to his 42 U.S.C. § 1983 challenge
because the remedy he seeks is a release hearing to give him a meaningful opportunity for parole
during his lifetime. Pl.’s Mot. Summ. J. 23, ECF No. 57. “Persons subject to state custody
generally ‘have two potential avenues to remedy violations of their federal constitutional rights:
a habeas petition under 28 U.S.C. § 2254, and a civil suit under 42 U.S.C. § 1983.’” Thornton v.
Brown, 757 F.3d 834, 839 (9th Cir. 2014) (quoting Osborne v. Dist. Attorney’s Office, 423 F.3d
1050, 1053 (9th Cir. 2005)). A writ of habeas corpus “is the exclusive remedy for a state
prisoner who challenges the fact or duration of his confinement . . . even though such a claim
may come within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481 (1994)
(discussing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)). “[C]ourts historically declined
to require § 1983 plaintiffs to exhaust state remedies.” Ramirez v. Galaza, 334 F.3d 850 (9th Cir.
2003). A prisoner may bring a 42 U.S.C. § 1983 suit if his claim satisfies the statutory criteria
under that statute unless the claim lies at the “core of habeas corpus.” Preiser, 411 U.S. at 489.
Some claims that are not at the “core of habeas corpus” may be brought under either § 1983 or
habeas corpus. Osborne, 423 F.3d at 1055.
A claim lies at the “core of habeas corpus if ‘its success would release the claimant from
confinement or shorten its duration, Preiser, 411 U.S. at 500, or would necessarily imply the
invalidity of the conviction or sentence. Heck, 512 U.S. at 487.’” Thornton, 757 F.3d at 840. A
claim does not “necessarily imply the invalidity of the conviction or sentence” “unless its success
will ‘inevitably call into question the state court judgment that led to the plaintiff’s custody.’” Id.
at 843 (quoting Osborne, 423 F.3d at 1055).
PAGE 14—OPINION AND ORDER
The Supreme Court held that state prisoners had properly brought challenges to parole
procedures under § 1983 because the lawsuit, if successful, would grant them a new parole
hearing, at most. Wilkinson v. Dotson, 544 U.S. 74, 82-84 (2005). The Court stated:
Success for Dotson does not mean immediate release from confinement or shorter
stay in prison; it means at most new eligibility review, which at most will speed
consideration of a new parole application. Success for Johnson [whose case was
consolidated with Dotson’s] means at most a new parole hearing at which Ohio
parole authorities may, in their discretion, decline to shorten his prison term . . .
Because neither prisoner’s claim would necessarily spell speedier release, neither
lies at “the core of habeas corpus.” Preiser, supra, at 489, 36 L. Ed. 2d 439, 93 S.
Ct. 1827. Finally, the prisoners’ claims for future relief (which, if successful, will
not necessarily imply the invalidity of confinement or shorten its duration) are yet
more distant from that core. See Balisok, supra, at 648, 137 L. Ed. 2d 906, 117 S.
Ct 1584.
Dotson, 544 U.S. at 82.
In 2011, the Supreme Court applied the principle from Dotson when the Court held that a
state prisoner properly brought suit under § 1983 seeking access to DNA evidence as a potential
vehicle to challenge his state-court conviction. Skinner v. Switzer, 526 U.S. 521 (2011). As the
Supreme Court explained:
Adhering to our opinion in Dotson, we hold that a postconviction claim for DNA
testing is properly pursued in a § 1983 action. Success in the suit gains for the
prisoner only access to the DNA evidence, which may prove exculpatory,
inclupatory, or inconclusive. In no event will a judgment that simply orders DNA
tests “necessarily impl[y] the unlawfulness of the State’s custody.
Skinner, 562 U.S. at 525 (quoting Dotson, 544 U.S. at 81).
To determine whether habeas jurisdiction or a § 1983 action is proper, “‘the operative
test under Preiser and its progeny is whether a successful § 1983 suit ‘would necessarily imply
that he would serve a shorter sentence . . .’” Ramirez, 334 F.3d at 859 (quoting Leamer v.
Fauver, 288 F.3d 532, 543 (3d Cir. 2002). Habeas jurisdiction is proper under Preiser “where a
challenge to prison conditions would, if successful, necessarily accelerate the prisoner’s release.”
PAGE 15—OPINION AND ORDER
Ramirez, 334 F.3d at 859. “[H]abeas jurisdiction is absent, and a §1983 action proper, where a
successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence.”
Id. (citing Neal v. Shimoda, 131 F.3d 818 (9th Cir 1997)).
Here, Plaintiff is asking this Court to exercise its authority under § 1983 to declare
Oregon’s bifurcated sentencing scheme invalid, including the application of the Parole Board’s
rules to him. Like the prisoners in Neal and Dotson, Plaintiff’s challenge to Oregon’s bifurcated
sentencing scheme as applied to him would provide only “a ticket to get in the door of the parole
board.” Neal, 131 F.3d at 824. Therefore, the Court finds that Plaintiff’s claims would not
undermine the validity of the judgment of his conviction or require that his sentence be
shortened. Like Dotson, Plaintiff would receive only a new hearing or hearings at which a state
entity would consider whether to shorten his prison term. Plaintiff properly contends that
Defendants would still have the authority to deny his requests for release for the rest of his life if
he failed to establish his rehabilitation at those hearings. The Court finds that Plaintiff properly
brings these claims under 42 U.S.C. § 1983. Dotson, 544 U.S. at 82; Ramirez, 334 F.3d at 859.
B. Application of Oregon Revised Statute § 161.620 to claims under 42 U.S.C. § 1983
Plaintiff contends that Oregon Revised Statute § 161.620 may support Plaintiff’s 42
U.S.C. § 1983 claim because the statute required the possibility of release when the judgment
was entered in 1994. The Oregon Supreme Court explained that Oregon Revised Statute §
161.620 “prevails over every other provision of law” and requires that juveniles who were under
the age of 17 when they committed aggravated murder “be entitled to the possibility of parole”
from the outset of his sentence. Engweiler v. Bd. of Parole and Post-Prison Supervision, 343 Or.
536, 544-45, 175 P.3d 408 (Or. 2007) (Engweiler V). The statute also prohibits a de facto life
sentence imposed as an aggregate determinate term-of-years sentence under the state sentencing
PAGE 16—OPINION AND ORDER
guidelines. State v. Davilla, 157 Or. App. 639, 643 (1998) (holding that a 116-year determinate
sentence violates Oregon Revised Statute § 161.620). Under Davilla, the statute bans a term-ofyears sentence that “is in practical effect imprisonment for life without the possibility of release
or parole.” Id.
Here, Plaintiff seeks a release mechanism to give effect to the state statute. As applied to
Plaintiff, the bifurcated sentencing scheme contained no release mechanism to give effect to
Oregon Revised Statute § 161.620. Engweiler V, 343 Or. at 546 (so noting with respect to
indeterminate sentence). Thus, Plaintiff is entitled to summary judgment on Defendants’ Fourth
Affirmative Defense of Heck preclusion.
III. Younger Abstention Doctrine
Plaintiff contends that the Younger abstention does not bar his claims. The Younger
doctrine precludes federal courts sitting in equity from enjoining "pending state criminal
proceedings" or state "civil enforcement actions akin to criminal proceedings." ReadyLink
Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758-59 (9th Cir. 2014) (citations
and internal quotations omitted). Abstention by the federal district court is required if: (1) the
state proceeding is ongoing; (2) that proceeding implicates important state interests; (3) there
is an adequate opportunity to raise constitutional challenges in the state proceeding; and (4) the
requested relief would enjoin or have the practical effect of enjoining the ongoing state
proceeding. Id. (citations omitted). In the present case, the Ninth Circuit held that the Younger
abstention does not bar Plaintiff’s federal constitutional claims. Cunio, 692 Fed. App’x at 465.
Because Plaintiff could not obtain complete relief for his 42 U.S.C. § 1983 claims in state court
proceedings, this Court finds that Plaintiff is entitled to summary judgment on Defendants’ Third
Affirmative Defense.
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IV. Defendants’ Other Arguments
A. Ripeness
Defendants argue that because Plaintiff’s claims are not ripe, this Court lacks jurisdiction.
Defs.’ Combined Resp. 20, ECF No. 60. Ripeness is an Article III doctrine designed to ensure
that courts adjudicate live cases or controversies and do not issue advisory opinions or declare
rights in hypothetical cases. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138
(9th Cir. 2000). A proper ripeness inquiry contains both a constitutional and a prudential
component. Id.
The constitutional component of ripeness is “often treated under the rubric of standing”
and, in many cases, “coincides squarely with standing’s injury in fact prong.” Id. That prong
requires the plaintiff to identify “an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Clark v. City of
Seattle, 899 F.3d 802, 809 (9th Cir. 2018). “For an injury to be particularized, it
must affect the plaintiff in a personal and individual way. For an injury to be concrete, it must
actually exist; in other words, it is real, and not abstract. Intangible harms and a risk of real harm
can be sufficiently concrete.” Id. at 809–10.
The prudential component of ripeness “is guided by two overarching considerations: the
fitness of the issues for judicial decision and the hardship to the parties of withholding court
consideration.” Bishop Paiute Tribe v. Inyo Cnty., 863 F.3d 1144, 1154 (9th Cir. 2017). Those
prudential considerations are discretionary and look “to whether the case presents a
concrete factual situation or purely legal issues.” Id.
Here, Plaintiff has not had a Miller hearing. The parties agree that no one, including
Defendants, will hold a Miller hearing for Plaintiff without a court order. As the Court has
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discussed, Plaintiff being subjected to Oregon’s bifurcated sentencing scheme, without an
opportunity for a Miller hearing, violates Plaintiff’s Eighth and Fourteenth Amendment rights.
Because Plaintiff suffers concrete harm in the form of constitutional violations, the Court finds
that Plaintiff’s claims are ripe.
B. Eleventh Amendment Immunity
Defendants argue that they are immune from suit and are not “persons” under 42 U.S.C.
§ 1983. Defs.’ Combined Resp. 25, ECF No. 69. The States are generally immune from suit
under the Eleventh Amendment and, because actions against a state officer in his or her official
capacity are, “in essence, actions against the governmental entity of which the officer is an
agent,” so are such officers. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982).
Similarly, only a “person” may be sued under § 1983, and neither the States nor their officers are
“persons” within the meaning of that statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989).
Eleventh Amendment immunity and qualified immunity are affirmative defenses.
Norwood v. Vance, 591 F.3d 1062, 1075 (9th Cir. 2010). They must be pled in the Answer or
they are waived. Id.; see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (Eleventh
Amendment immunity waived by failing to “quickly” raise that affirmative defense in federal
court). Defendants did not plead any immunity defenses in their Answer to Plaintiff’s Third
Amended Complaint. See ECF No. 45. Thus, Defendants waived those affirmative defenses by
appearing and litigating the merits and other defenses for four years of this litigation.
PAGE 19—OPINION AND ORDER
CONCLUSION
For the reasons set forth above, the Court grants Plaintiff’s Motion for Summary
Judgment (ECF No. 57) and denies Defendants’ Cross-Motion for Summary Judgment (ECF No.
60) as moot. The Parole Board shall hold a Miller hearing consistent with this Opinion and
Order.
IT IS SO ORDERED.
DATED this 20th day of February 2020.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge
PAGE 20—OPINION AND ORDER
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