Aikens v. Board of Parole and Post Prison-Supervision

Filing 27

OPINION AND ORDER: Petitioner's habeas corpus petition (ECF No. 2 ) is DENIED, and this proceeding is DISMISSED. The Court declines to issue a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). Signed on 6/12/2017 by Judge Anna J. Brown. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TIMOTHY L. AIKENS,
Case No.

6:16-cv-00845-BR

Petitioner,
OPINION AND ORDER
v.

BOARD OF PAROLE AND POST-PRISON
SUPERVISION,
Respondent.
ANTHONY D. BORNSTEIN
Assistant Federal Public Defender
101 S.W. Main ·Street, Suite 1700
Portland, Oregon 97204

Attorney for Petitioner
Ellen F. Rosenblum
Attorney General
KRISTEN E. BOYD
Senior Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 9]310
Attorneys for Respondent

1 - OPINION AND ORDER

BROWN, District Judge.
Petitioner,

an

the

Oregon

Petitioner challenges an Oregon Board of Parole and Post-

Prison

Supervision

"Board")

rehabilitation

within

pursuant

Penitentiary,

2254.

(the

proceeding

State

this

of

corpus

at

brings

capable

habeas

inmate

to

determination
a

reasonable

28

that

U.S. C.

he

is

period of

§

not

time.

For the reasons set forth below, the Petition for Writ of Habeas
Corpus (ECF No. 2) is DENIED, and this proceeding is DISMISSED.
BACKGROUND

Petitioner

was

convicted

of

three

counts

of

Aggravated

Murder, Arson in the First Degree, and Abuse of a Corpse, arising
out of the June 21,

1987, murder of a woman in a motel room in

Portland.

Resp't Ex.

sentenced

(ECF No.

Petitioner

to

22)

life

101 at 5.
imprisonment,

possibility of parole for 30 years.
On
hearing

February
at

6,

2013,

Petitioner's

the

Id.

request,

to

Ex.

103.

Petitioner

at 6.

determine

murder

whether

Four

church-affiliated

appeared

witnesses

also appeared on Petitioner's behalf.

review
he

was

reasonable period of time.
before

the

represented by counsel, and testified on his own behal£.
217-328.

the

without

Board conducted a

likely to be rehabilitated within a
Resp' t

The trial court

Id.

and

a

Board,
Id.

at

psychologist

The Multnomah County

Deputy District Attorney and two of the victim's family members
spoke in opposition to .Petitioner's request.

2 - OPINION AND ORDER

Id.

at 330-351.

After the hearing, the Board determined Petitioner failed to
establish

that

reasonable
Accordingly,

he

period
the

is
of

likely
time.

Board

to

be

rehabilitated

Resp't

did

not

grant

Petitioner sought administrative review,
Id.

at

371-383.

Petitioner

sought

Ex.

103

at

Petitioner

within

a

370-373.
parole.

which the Board denied.

judicial

review,

but

the

Oregon Court of Appeals affirmed without opinion and the Oregon
Supreme Court denied review.

Resp't Ex's 108, 107.

Petitioner then filed his Petition for Writ of Habeas Corpus
in this Court, alleging two grounds for relief:
Ground One:
Supporting Facts:
Is a board determination that a
petitioner failed to prove that he was likely to be
rehabilitated within a
reasonable period of time
supported by substantial reason when the evidence
overwhelmingly weighs in favor of a conclusion that the
petitioner is likely to be rehabilitated?
The board
erred when it concluded that petitioner failed to carry
his burden of proving by a preponderance of the
evidence that he is likely to be rehabilitated within a
reasonable period of time.
My due process rights to
substantial reason of a parole board decision were
violated under Oregon Administrative Rule, Oregon case
law, and the Fifth, Sixth and Fourteenth Amendments of
the United States Constitution.
Ground Two:
Supporting Facts:
When the evidence overwhelmingly
establishes that the petitioner is
likely to be
rehabilitated within a short amount of time, can the
board
lawfully
reach
the
conclusion
without
a
persuasive explanation for discounting the overwhelming
evidence in favor of the petitioner?
My due process
rights to substantial reason of a parole board decision
were violated under 'Oregon Administrative Rule, Oregon
case
law,
and
the
Fifth,
Sixth
and
Fourteenth
Amendments of the United States Constitution.
Petition
at 3.
Pet. at 3.

3 - OPINION AND ORDER

Respondent

argues

Petitioner

procedurally

defaulted

both

claims because he failed to faiily present any federal claims on
appeal

to

the

expired.

state

courts,

Respondent

and

further

the

time

argues

to

that,

do

so

has

in

any

now

event,

Petitioner's claims should be denied on the merits because the
state court decisions are entitled to deference under 28 U,S.C.
2254 (e) (1),
was due.

and because

Resp't Resp.

In

his

present

his

Petitioner received all the process he

(ECF No. 20) at 2.

supporting
federal

§

brief,

claim to

Petitioner
the

argues

Oregon Courts,

that

did

that

and

he

the

"only valid conclusion" to draw from the Board's determination
that

he

is

time

is

that

thereby

not

likely to be

the

depriving

Board did
him

of

Fourteenth Amendment.

rehabilitated within a
not

his

conduct

right

to

reasonable

a

meaningful

due

process

Pet' r's Br. in Supp.

hearing,
under

the

(ECF No. 26) at 5.

DISCUSSION

I. Procedural Default
Generally, a state prisoner must exhaust all available state
court

remedies

either

on

direct

appeal

or

through

collateral

proceedings before a federal court may consider granting habeas
corpus relief.

See 28 U.S.C. § 2254 (b) (1) (A).

A state prisoner

satisfies the exhaustion requirement by "fairly presenting" his
claim to the appropriate state courts at all appropriate stages
afforded under

state

4 - OPINION AND ORDER

law.

Baldwin

v.

Reese,

541

U.S.

27,

29

(2004);

Casey v.

Castillo v. McFadden,

Respondent

386 F.

Moore,

argues

federal

process

Petitioner's

defaulted

courts.
federal

Resp' t
due

Resp.

process

Request to the Board

915-16

(9th Cir.

2004);

399 F. 3d 993, 1003 (9th Cir. 2005).

procedurally
due

3d 896,

because

he

violation
at 4.

grounds

failed

claim

to

to

for

relief 1

fairly

the

state

are

present

a

appellate

Petitioner contends he asserted a

violation
(Resp' t

in

Ex.

his

Administrative

103 at 380),

Review

and then attached

that document to his appellate brief, such that the "facts relied
upon by [Petitioner]

were in the record before the Oregon Court

of Appeals as well as the State Supreme Court."

Pet' r's Br.

in

Supp. at 6-7.
In Baldwin v. Reese, the Supreme Court squarely rejected the
argument that state appellate courts are presumed to have read
lower court opinions and briefs in every case.
(2004) .

541 U.S.

27,

32

The Baldwin Court held that "ordinarily a state prisoner

does not 'fairly present' a claim to a state court if that court
must read beyond a petition or a brief
that

does

not

alert

order

to

case,

that does so."

(holding

it

find material,

petitioner

to

the presence of a

such as

Id.;

(or a similar document)

a

lower

court

see also Castillo,

"must

have

federal

presented

claim in

opinion

in

the

399 F. 3d at 1000
his

federal,

1 Petitioner's grounds for relief both assert the same violation
of his Fourteenth Amendment right to due process, and are
therefore construed as the same claim.
5 - OPINION AND ORDER

constitutional issue

[to the State Court of Appeals]

within the

four corners of his appellate briefing.")
In this case, Petitioner sought administrative review of the
Board's

order,

in

which

he

did,

indeed,

raise

a

federal

due

process claim by stating:
The Board's Reliance on Unchangeable,
Alternative, Subjective Factors Violates
Right to Due Process under the State
Constitutions.
Resp't Ex. 103 at 380.
however,

or in the
Petitioner's
and Federal

On appeal to the Oregon Court of Appeals,

Petitioner failed to reiterate a federal basis for his

claim that the Board erred.

Resp' t Ex. 104.

Petitioner now argues he alerted the Oregon Court of Appeals
to a

federal . claim by appending to his appellate brief in the

Excerpt

from

his

containing the above cited language.

Id.

is

that

the

opinion,

was

no

of

basis

Appeals,

Record,

upon

which

the

which

affirmed

page

to

conclude

without

administrative
at 58.

review

However, there
Oregon

Court

alerted

to

of
the

presence of a federal claim when Petitioner did not reference any
federal grounds for relief in his opening brief.
108.

Id.;

Resp't Ex.

The Oregon Rules of Appellate Procedure state,

"No 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 in accordance with this rule."
Pro.

5. 4 5 ( 1) (emphasis

added) .

As

such,

Ore. R. App.

Petitioner

failed

to

alert the Oregon Court of Appeals to any federal constitutional
issue.
6 - OPINION AND ORDER

In
again

his

petition

failed

review.

to

to. the

present

Resp't

Ex.

Supreme Court was

a

106.

Oregon

Supreme

federal

at

conclude

7.

Yet,

that

the

again,

there

Oregon

argues

federal

access to the Oregon Court of Appeals
Supp.

is

that

issue
the

for

Oregon

claim because it had

record.

no basis

Supreme

Petitioner

constitutional

Petitioner

alerted to his

Court,

Court,

Pet' r's Br.

for

this

in

Court to

which· denied

review

without opinion, considered the record before the Oregon Court of
Appeals, especially when its own rules state that "the questions
before the

Supreme Court

the Court of Appeals"

include all questions properly before

(Ore. R. App.

Pro.

9.20(2)) and no federal

question was properly before the Oregon Court of Appeals.
Petitioner failed to exhaust his federal due process claim
in state court, and because he can no longer do so,
procedurally defaulted.

See Or. Rev.

the claim is

Stat. 138.071(1) (appeal of

judgment or order must be filed within 30 days of its entry).
Petitioner has not made any showing of cause and prejudice
to

excuse

argument

this
that

procedural
his

convictions

miscarriage of justice:"
( 1991) .

default,

Accordingly,

does

resulted

Coleman v.
Petitioner

nor

in

he

present

a

"fundamental

Thompson, 501 U.S.

cannot

obtain

722,

habeas

any

750

corpus

relief in this Court.
II.

Relief on the Merits
Under 28 U.S.C.

§

2254(b) (2),

"An application for a writ of

habeas corpus may be denied. on the merits,

7 - OPINION AND ORDER

notwithstanding the

failure of the applicant to exhaust the remedies available in the
courts of the State."
n.3 (2005)
merits

543 U.S.

Cone,

44 7,

451

(an application for habeas corpus may be denied on the

even

discussed

See also Bell v.

if

unexhausted

below,

this·

in

Court

state

court).

elects. to

For

also

the

deny

reasons

Petitioner's

claims on the merits.
The

Federal

right

to be

valid

sentence,

Constitution

does

not

guarantee

conditionally released before
therefore

states

parole to their prisoners.

chooses

to

under

the

Process

Due

offer

under

a

to

offer

Inmates of Neb.

Greenholtz v.

no

duty

Penal

442 U.S. 1, 7 (1979).

and Correctional Complex,

state

are

a

expiration of

the

prisoners

parole,
Clause

it

of

creates

the

However, when a

a

liberty

Fourteenth Amendment,

must then provide fair procedures for its vindication.
v.

562 U.S. 216, 220

Cooke,

California

law

was

and

provided

contest

notified of the
Oregon
prisoners

offers

of

Swarthout

records

were

available

in

petitioners were allowed to speak at
against

them,

and

were

later

parole was denied) .

parole

convicted

where

evidence

reason~

and

(2011) (finding all process due under

advance of parole hearing,
hearing

interest

to

its

prisoners.

aggravat~d

murder,

With
upon

respect

to

completion

of

their minimum term of confinement, Oregon allows them to petition
the

State

hearing

Board

"to

rehabilitated

of

Parole

determine
within

8 - OPINION AND ORDER

a

if

and

Post-Prison

the

reasonable

prisoner
period

Supervision
is

of

likely

time."

for
to

Or.

a
be

Rev.

Stat.

§

burden

163.105(2).
of

proving

At
by

that
a

hearing,

the

preponderance

prisoner

of

the

evidence

the

bears

the

Or. Rev.

likelihood of rehabilitation within a reasonable time.
Stat.

The

163.105(2)(a).

§

represented

by

counsel,

and

prisoner

to

have

has

the

Or. Rev. Stat.

If

it

Board

denies

relief,

to

counsel. appointed

Board, at the Board's expense.
the

right

shall

§

issue

by

163.105
a

be
the

(2) (b).

final

order

"accompanied by findings of fact and conclusions of law," and the
findings

of fact

underlying

facts

"shall consist of a
supporting

the

concise

findings

as

statement of the
to

each

contested

issue of fact and as to each ultimate fact required to support
the board's order."

Or.

Rev.

Stat.

163.105 (5).

§

Finally,

if

the Board denies relief, it must set the earliest date upon which
Or. Rev. Stat.

subsequent review is available to the prisoner.

§

163.105(4).
Confirming that this process was provided is the "beginning
and the end of the federal habeas court's inquiry into whether [a
petitioner]
Whether
inquiry,

the

received due process."
Board's

decision

was

Swarthout,

correct

is

Petitioner

from

not

the

at 220.
relevant

and therefore not for this Court to consider,

the only federal right at issue is procedural.

provided

562 U.S.

received

Pe ti ti oner

Petitioner,

with

heard

all

process

counsel,
from

9 - OPINION AND ORDER

received

five

testified on Petitioner's behalf,

due

because

Id. at 222.

The

here.
extensive

additional

Board

testimony

witnesses

who

and entertained argument from

Petitioner's attorney.
Board

received

and

Resp' t Ex. 103 at 367.

reviewed

written

In addition,

materials,

such

as

the

court

documents, prison records, release and relapse preventions plans,
and a psychological evaluation.

Id. at 363-64.

In its "Final Order," the Board made "Findings of Fact," in
which

it

summarized

Petitioner's

Petitioner's

history

incarceration,

of

conduct

record,

throughout

as

his

work history and

rehabilitative programing.

Id.

at

opinion

of

an

as well

good

criminal

364-366.

evaluating psychologist

that

many ways" achieved a rehabilitative state.

It

and detailed
his

period

of

involvement

in

also

noted the

Petitioner had
Id.

at 366.

"in

In its

"Findings of Ultimate Fact," the Board set forth its resolution
of contested facts, concluding that Petitioner had failed to meet
his burden of proving,

by a preponderance of the evidence,

that

he was likely to be rehabilitated within a reasonable period of
time.

Id.

Petitioner

at

371-373.

was

entitled

Finally,
to

request

the
a

Board

determined

subsequent

that

hearing

February 6, 2015, two years from the date of the hearing.

on

Id. at

365.
Under

these

circumstances,

Petitioner

received

all

the

process afforded by the State of Oregon to prisoners convicted of
aggravated murder,
rights.

and the Board did not violate his due process

Accordingly, Petitioner is not entitled to habeas corpus

relief on the merits of his claim.

10 - OPINION AND ORDER

CONCLUSION

Based on the foregoing,

Petitioner's habeas corpus petition
j

(ECF No.

2)

is

Court declines

DENIED,
to

and this proceeding is

DISMISSED.

The

issue a Certificate of Appealabili ty because

Petitioner has not made a substantial showing of the denial of a
constitutional right pursuant to 28 U.S.C.

§

2253(c) (2).

IT IS SO ORDERED.
(/t\_

DATED this}J_ day of June, 2017.

Anna~

United States District Judge
District of Oregon

11 - OPINION AND ORDER