Gordon v. Premo
Filing
40
OPINION AND ORDER: the Petition for Writ of Habeas Corpus 2 is denied. The court issues a Certificate of Appealability limited only to: (1) whether 28 U.S.C. § 2254 habeas corpus jurisdiction is present; and (2) if habeas jurisdiction is proper, whether the ex post facto issue Petitioner argues in this proceeding entitles him to relief. (See 13 page opinion for more information) Signed on 11/20/17 by Judge Michael H. Simon. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DENNIS GORDON,
Case No. 6:16-cv-01018-SI
Petitioner,
OPINION AND ORDER
v.
JEFF PREMO,
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, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
SIMON, District Judge.
Pe ti ti oner brings
U.S.C.
habeas
corpus case pursuant
to
28
2254 challenging a 2011 decision by the Oregon Board of
§
Parole
this
and
Post-Prison
Supervision
("Board")
to
defer
his
projected parole release date by ten years. For the reasons that
follow, the Petition for Writ of Habeas Corpus (#2) is denied.
BACKGROUND
In
murder
1975,
Petitioner
involving his prior
committed
a
rape victim.
particularly
gruesome
He ultimately pleaded
guilty to rape and murder and was sentenced to life on the murder
conviction, and twenty consecutive years on the rape conviction.
Historically,
Oregon
inmates
have
consideration hearings every two years.
received
However,
in
parole
2009,
the
Oregon legislature amended ORS 144. 228 to allow the Board the
discretion to postpone an inmate's parole consideration by up to
10 years.
The Board applied this new law to Pe ti ti oner in 2011
when it deferred his release by 10 years.
the Board held a
On February 9,
2011,
hearing and issued Board Action Form #18
follows:
The
Board has
received a
psychological
evaluation on inmate dated 12/6/2010.
Based on the doctor's report and diagnosis,
coupled with all the information that the
Board is considering, the Board concludes
that the inmate suffers from a present severe
emotional disturbance that constitutes a
danger to the health or safety of the
community. The Board has considered this
matter under the substantive standard in
effect at the time the inmate opted into the
2 - OPINION AND ORDER
as
matrix system, 08/01/1984,
applicable rules and laws.
and
all
other
The Board further finds that it is not
reasonable to expect that you will be granted
a firm release date before 10 years from your
current projected release date. Therefore the
Board is deferring your projected release
date and establishing a new projected release
date of 08/15/2021 following a total of 551
months.
A review will be scheduled in
02/2021,
with
a
current
psychological
evaluation.
Respondent's Exhibit 103, p. 265.
Petitioner
applied
for
administrative
review
where
he
alleged that the 10-year deferral of his parole constituted an ex
post
facto
violation.
The
Board
rejected
the
administrative
appeal:
Because you demonstrated no decrease in your
criminal
thinking,
including
denial
of
responsibility, minimization, and lack of
empathy,
despite
over
thirty
years
of
incarceration, the Board concluded that it is
unlikely that you will show sufficient change
in two years to justify it in affirming your
projected parole date. Thus, the board finds
that it did not err in applying the 2009
statutory
changes
because
the
risk
of
increasing punishment for your crime is
minimal
and
speculative
at
best.
The
significance of your argument is diminished
by the existence of convictions that permit
the state to imprison you for life plus
twenty
years.
The
changes
regarding
scheduling or hearings are procedural, do not
authorize greater punishment, and do not
substantially alter your rights. In any case,
the Board notes that pursuant to ORS 144.280,
you have the right to request an interim
hearing for the purposes of demonstrating
that there is reasonable cause to believe
that you may be granted an earlier parole
release date.
Id at 290.
3 - OPINION AND ORDER
Petitioner
proceeded
to
file
Board's administrative denial,
affirmed the
specifically
Board's Order
address
judicial
review
of
the
but the Oregon Court of Appeals
in a
the
for
written opinion that
claims
Petitioner
did not
argues
here.
Respondent's Exhibit 108. The Oregon Supreme Court denied review.
Respondent's Exhibit 111.
Petitioner filed this 28 U.S.C.
June 6,
§
2254 habeas corpus case on
2016 in which he alleges that the Board's 2011 decision
to place him on a 10-year parole hearing cycle violates his right
to equal protection and to be free from ex post facto punishment.
Respondent asks the court to deny relief on these claims because
they lack merit.
DISCUSSION
I.
Habeas Corpus Jurisdiction
Respondent
first
argues
that
Petitioner's
case
is
not
properly filed as a habeas corpus action because success on his
claims
will
not
necessarily
result
in
Petitioner's
speedier
release from prison. Claims do not sound in habeas if they will
not, if successful, lead to speedier release. Nettles v. Grounds,
830 F. 3d 922,
equal
934-35
protection
(9th Cir.
or
ex
post
2016) . Were the court to find an
facto
violation
in
this
case,
Petitioner would not be entitled to earlier release. Instead, he
would only be relieved from the 10-year parole cycle of which he
complains.
In
such
a
scenario,
although
the
Board
would
be
obligated to conduct parole review hearings every two years,
it
could nevertheless continue to exercise its discretion to deny
Pe ti ti oner
release
to parole if appropriate.
4 - OPINION AND ORDER
In this
respect,
because
parole
success
in
this
action
consideration and not
would
result
in
speedier
Petitioner's
necessarily
only
speedier
release, his claim does not "lie[] at the core of habeas corpus."
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
II.
Entitlement to Federal Habeas Relief
Even if the court could construe Petitioner's grounds
relief to state claims cognizable in a
corpus
case,
28 U.S. C.
Petitioner would nevertheless
not
2254 habeas
§
be
for
entitled
to
relief. An application for a writ of habeas corpus shall not be
granted unless adjudication of the claim in state court resulted
in
a
decision
that
was:
(1)
unreasonable application of,
determined by the
"contrary
to,
or
involved
an
clearly established Federal law,
as
Supreme Court of the United States;"
or
(2)
"based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.'' 28 U.S.C.
§
2254(d). A state court's findings of fact are presumed correct,
and Petitioner bears the burden of rebutting the presumption of
correctness
§
by
clear
and
convincing
evidence.
u.s.c.
28
2254 (e) (1).
A
state
established
court
decision
precedent
if
the
is
"contrary
state
court
to
clearly
applies
a
rule
that
contradicts the governing law set forth in [the Supreme Court's]
cases'' or ''if the state court confronts a set of facts that are
materially
indistinguishable
from
a
decision
of
[the
Supreme]
Court and nevertheless arrives at a result different from [that]
precedent."
Under
the
Williams
v.
"unreasonable
Taylor,
529
application"
5 - OPINION AND ORDER
U.S.
362,
clause,
a
405-06
federal
(2000).
habeas
court may grant relief ''if the state court identifies the correct
governing legal principle from
[the Supreme Court's]
but
principle
unreasonably
prisoner's
clause
applies
that
at
413.
case."
requires
Id
the
state
incorrect or erroneous.
The
court
Id at 410.
to
the
facts
"unreasonable
decision
to
decisions
of
the
application"
be
more
Twenty-eight U.S.C.
§
than
2254(d)
"preserves authority to issue the writ in cases where there is no
possibility
fairminded
jurists
could
disagree
that
the
state
court's decision conflicts with [the Supreme] Court's precedents.
It
goes no
farther."
86,
102
on
the
merits but provides no reasoning to support its conclusion,
the
Harrington
v.
562
Richter,
U.S.
(2011).
When,
as
here,
a
state
court
reaches
a
decision
federal habeas court must conduct an independent review of the
record to determine whether the state court clearly erred in its
application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976,
982
(9th Cir.
2000).
In
such an
instance,
although the
court
independently reviews the record, it still lends deference to the
state court's ultimate decision. Harrington v. Richter, 131 S.Ct.
770,
784-85
(2011);
Pirtle v.
Morgan,
313 F. 3d 1160,
1167
(9th
Cir. 2002).
III. Analysis
A.
Equal Protection
According to
equal
protection
consideration
for
Petitioner,
when
ten
it
years
the Board violated his
elected
because
to
other
defer
his
similarly
right
to
parole
situated
inmates continue to receive parole hearings every two years. The
6 - OPINION AND ORDER
parties agree that the rational basis inquiry controls where the
Board's
decision
does
not
burden
a
fundamental
Petitioner is not a member of a protected class.
Evans,
517
U.S.
620,
631
(1996).
right
and
See Romer v.
In this respect,
the Board's
decision will implicate equal protection principles only if the
court
finds
it
to be
so
arbitrary as
to not
bear
a
rational
relationship to a legitimate end. Id.
Petitioner contends that the Board's decision was completely
arbitrary.
He points out that he not only received three prior
psychological evaluations that stated his antisocial personality
was in partial remission,
Dr.
Templeman
psychotic
noted
thinking
or
but his 2010 psychological review by
that
Petitioner:
major
anxiety;
(1)
(2)
adjusted behavior during the past 30 years;
relations with the staff;
and
(4)
did
not
exhibit
demonstrated
well-
(3) maintained good
held steady employment within
the prison. Respondent's Exhibit 112, pp. 61-66. He reasons that
the totality of this record as well as his advancing age render
him less likely to possess a present severe emotional disturbance
rendering him a danger to the community such that he should be
evaluated every two years.
When the Board set Petitioner's parole consideration on a
10-year cycle, it did so based upon a variety of factors:
(1) as
of 2011, he had committed two violations of institutional rules
since his prior parole hearing two years earlier, and responded
by minimizing his culpability and indicating
damn anymore,"
( 2)
nr
just don't give a
Petitioner does not understand or refuses to
sincerely discuss the motivation that led to the commission of
7 - OPINION AND ORDER
his crimes;
address
(3)
his
he has demonstrated a marked lack of effort to
substance
abuse
problems
which
he
consistently
identifies as being an element in his crimes; and (4)
Petitioner
continues to demonstrate a lack of remorse,
or concern
empathy,
for his victims as he labels his victim's family "vindictive,"
considers himself to be a victim, and believes his own treatment
to be unjust. Respondent's Exhibit 103, pp. 65-66.
Moreover,
to
be
in
Dr.
Templeman's 2010 evaluation did not show him
partial
remission
as
to
his
antisocial
personality
disorder. Notably, this was contrary to Dr. Templeman's previous
finding
in
2001
Templeman was
of
partial
remission,
clearly aware
of the
illustrating
issue.
that
Petitioner's
Dr.
theory
that his age makes remission more likely rather than less likely
is therefore directly controverted by Dr. Templeman's reversal of
his
own opinion
record,
on the
Petitioner
has
issue.
not
Based on
established
the
that
totality
the
of this
Board's
2011
decision was so arbitrary as to violate equal protection.
Ex Post Facto
B.
Petitioner
also
asserts
that
the
Board's
retroactive
application of ORS 144.228 to his case resulted in a longer term
of incarceration, thereby implicating the Ex Post Facto Clause of
the U.S. Constitution. The Ex Post Facto Clause prohibits states
from enacting laws which, by retroactive operation, increase the
punishment for a crime after its commission. Garner v. Jones, 529
U.S. 244, 250 (2000). A law violates the Ex Post Facto Clause if:
(1)
it
"appl [ies]
Weaver v.
Graham,
to
events
450 U.S.
8 - OPINION AND ORDER
occurring
24,
29
before
(1981);
and
its
enactment,"
(2)
"produces a
sufficient risk of increasing the measure of punishment attached
to the covered crimes." Calif.
U.S.
499,
504
''creates
only
increasing
of Corr.
Dep't.
v.
Morales,
514
(1995). There is no ex post facto violation if it
the
the
most
measure
speculative
of
and
punishment
attenuated
attached
to
risk
the
of
covered
crimes." Morales, 514 U.S. at 513.
Whether retroactive application of a change in parole law
violates the prohibition against ex post facto legislation "is
often a
question of particular difficulty when the
discretion
vested in a parole board is taken into account." Garner, 529 U.S.
at 250. The court remains mindful that the Ex Post Facto Clause
is not properly utilized for "the micromanagement of an endless
array
of
legislative
adjustments
to
parole
and
sentencing
procedures." Morales, 514 U.S. at 508.
In Garner and Morales, the Supreme Court addressed ex post
facto claims similar to Petitioner's.
Court
concluded
that
the
decreased
In both cases, the Supreme
availability
of
parole
consideration hearings did not increase the measure of punishment
to inmates in Georgia and California because those inmates could
apply for interim hearings. Garner, 529 U.S at 254; Morales, 514
U.S. at 512-13. When the Board in Petitioner's case deferred his
parole consideration for 10 years,
it specifically advised him
that "Pursuant to ORS 144.280, you have the right to request an
interim hearing not earlier than two years from today,
purpose
of
believe
that
demonstrating
you
may
be
9 - OPINION AND ORDER
that
there
granted
a
is
reasonable
change
in
the
for the
cause
to
terms
of
confinement or a
firm release date." Respondent's Exhibit 103,
p. 266.
Petitioner acknowledges that like Garner and Morales, Oregon
offers a mechanism through which inmates can request an interim
parole consideration hearing.
However,
he contends his ex post
facto claim is nevertheless meritorious because,
technically
allowed
to
seek
an
interim
although he is
parole
consideration
hearing during the 10-year term imposed by the Board, the realworld impact of the retroactive application of ORS 144.228 is to
effectively increase his punishment because no such hearing is
truly
available
to
him.
He
reasons
that
under
ORS
144.125,
inmates are presumed released on their established parole release
date
unless
disturbance
contends
the
rending
that
psychological
where:
Board
he
finds
them
must
a
( 1) there
is
no
danger
rebut
evaluation
a
which
present
to
this
he
mechanism
the
severe
community.
finding
cannot
by
emotional
via
a
possibly
which
he
can
He
thus
favorable
accomplish
obtain
a
psychological evaluation to demonstrate improvement warranting an
interim hearing; and (2) he is without sufficient funds to retain
his
own
psychologist
for
such
a
purpose.
In
this
respect,
Petitioner believes that although he can technically request an
interim parole consideration hearing, his opportunity to receive
meaningful consideration for purposes of scheduling an interim
hearing is nonexistent absent a new psychological evaluation.
Pursuant to ORS 14 4. 280 ( 2),
where the Board sets a parole
hearing cycle in excess of two years,
request for an interim hearing:
10 - OPINION AND ORDER
an inmate may submit a
not earlier than the date that is two years
from the date parole is denied and at
intervals
of
not
less
than
two
years
thereafter. If the board finds, based upon a
request for an interim hearing, that there is
reasonable cause to believe that the prisoner
may be granted parole,
the board shall
conduct a hearing as soon as is reasonably
convenient.
Petitioner bears the burden of establishing with the Board
that
an
interim
supporting
hearing
facts,
is
warranted
information
or
by
documents
submitting
relevant
"any
to
the
criteria outlined in OAR 255-062-0016, or other factors specific
to
how
the
progress
Within
toward
OAR
considers
interim
inmate
has
hearing
are
establishing
dates).
When
14
significant
OAR
specific
parole
it
a
,,
rehabilitation.
255-062-0016
when
demonstrated
deferred
or
255-062-0016(d).
factors
hearing
change
the
dates
Board
(including
Petitioner's
parole
consideration by 10 years, the Board specifically identified for
Petitioner which of those 14 factors it found to be problematic
in his case:
Factor 2: Infractions of institutional rules
and discipline;
Factor 11: Demonstrated Impulsivity;
Factor 4: Inmate's failure to demonstrate
understanding of the factors that led to his
criminal offenses;
demonstrated
Factor 6: Inmate's
lack
effort to address criminal risk factors
substance abuse problems;
of
of
Factor 9: Inmate's inability to experience or
demonstrate remorse or empathy; and
11 - OPINION AND ORDER
Factor 12: Demonstrated lack of concern for
others, including but not limited to any
registered victims.
Respondent's Exhibit 103, pp. 265-66.
The Board thus
relied upon many
factors
to conclude that
Petitioner was not an appropriate candidate for a two-year parole
hearing cycle.
Nowhere among those factors did it identify Dr.
Templeman's psychological evaluation as a reason supporting its
decision to place Petitioner on a 10-year parole hearing cycle.
Instead, it relied upon the psychological evaluation (as well as
the
other
information
determination
that
before
Petitioner
emotional disturbance
to
it)
suffered
rendering him a
make
from
the
a
separate
present
severe
danger to the health or
safety of the community such that he would not be paroled on the
presumptive
hearing.
that
date
established at
Id at 265. Accordingly,
his
2009
parole
consideration
there is no reason to conclude
Petitioner cannot demonstrate improvement in the
relevant
areas identified by the Board so as to obtain an interim hearing
based
upon
factors
that
are
independent
of
a
psychological
evaluation.
Where the Board specifically advised Petitioner that he has
the right to request an interim hearing pursuant to ORS 144.280,
and where his ability to secure such a hearing is not dependent
upon a new psychological evaluation,
there is no ex post facto
violation in the Board's retroactive application of ORS 144.228
to Petitioner's case.
record,
the
state
Thus,
court
upon an independent review of the
decision
12 - OPINION AND ORDER
denying
relief
is
neither
contrary
nor
to,
an
unreasonable
application
of,
clearly
established federal law.
CONCLUSION
For the reasons identified above,
Habeas Corpus
( #2)
Appealability
limited
habeas
corpus
jurisdiction
is denied. The court issues a Certificate of
only
to:
jurisdiction
is
the Petition for Writ of
proper,
is
(1)
whether
present;
whether
the
28
and
ex
U.S.C.
(2)
post
if
§
2254
habeas
facto
issue
Petitioner argues in this proceeding entitles him to relief.
IT IS SO ORDERED.
DATED this
yV
rh
day of November,
ael H. Simon
United States District Judge
13 - OPINION AND ORDER
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