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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?