Severy v. Oregon Board of Parole & Post-Prison Supervision
OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is denied. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). (See 8 page opinion for more information.) Signed on 8/16/17 by Judge Michael W. Mosman. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONALD M. SEVERY,
Case No. 6:16-cv-01482-MO
OPINION AND ORDER
OREGON BOARD OF PAROLE AND
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
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
MOSMAN, District Judge.
Petitioner brings this 28 U.S.C.
2254 habeas corpus case
challenging a July 2011 decision by the Oregon Board of Parole
and Post-Prison Supervision ("Board") setting his prison term at
Because petitioner failed to fairly present his due
process claims to Oregon's state courts, the Petition for Writ of
Habeas Corpus (#2) is denied.
Aggravated Murder and one count of Arson in the
Respondent's Exhibit 113, p. 3.
rehabilitated within a
reasonable time and therefore converted
one of his Aggravated Murder sentences to be "life in prison with
petitioner's subsequent judicial review of the Board's actions,
the Oregon Supreme Court determined that the Board should have
altered both of his Aggravated Murder sentences to life with the
with its decision.
2 - OPINION AND ORDER
On July 27,
the Board held the prison term hearing
Petitioner sought administrative review of that decision, but the
Board affirmed its July 27,
2011 Board Action Form.
availed himself of his judicial review remedies, but the Oregon
denied relief in a
Oregon Supreme Court denied review.
Respondent's Exhibits 113,
challenge on July 21, 2016. He seeks relief from the Board's July
27, 2011 decision based upon the following grounds for relief:
Amendments, failing to follow ORS 163.105(2),
once determined capable of rehabilitation in
2004. A matrix range should have been set.
Parole Board should have released inmate
decision for the Board shall be whether there
rehabilitation such that the offender does
not represent a risk to the community."
2. In 2010, the Supreme Court agreed with
petitioner that finding applies for combined
sentences, Judge Gillette of the Supreme
Court, quoted 222-280 matrix range.
Supporting Facts: After 6 years of appeal
process to the Supreme Court, the Supreme
Court of Oregon.
Judge Gillette quotes
petitioner's matrix range of 222-280 months.
No Oregon law allowed the board to conduct a
second illegal "prison term hearing" on July
27, 2011, for any reason.
3 - OPINION AND ORDER
The Board of Parole lacked any authority
of legal jurisdiction over petitioner in
The Board conducted an
illegal second "prison term hearing" where
they increased petitioner's crime category,
plus added an aggravating factor.
of Parole knowingly stuck petitioner in a
procedural legal loop without hope of relief
even after a Supreme Court ruling supported
constitutional rights of petitioner.
From Supreme Court, petitioner exhausted
his 280 maximum matrix range sentence. In
Feb. 5 2008, entitled petitioner to immediate
Supporting Facts: Petitioner has served 6
years past the maximum combined unitary term
The Parole and matrix
statutes provided the Board with no authority
to continue to imprison an inmate after the
expiration of the parole matrix range.
Petition (#2), pp. 6-7.
(1) three of petitioner's four grounds for relief do not
state a federal claim and are therefore not cognizable in this
federal issue to Oregon's state courts, leaving all of his claims
Sufficiency of Petitioner's Grounds for Relief
Respondent contends that although petitioner cites the Fifth
actions violated any federal law and therefore provide no basis
for federal habeas corpus relief. Petitioner counters that Ground
4 - OPINION AND ORDER
if construed liberally,
a due process claim
that the Board had no authority to act as
it did in the 2011
prison term hearing. He argues that because he filed the pleading
pro se, the court is obligated to give it a liberal construction.
appointed the Federal Public Def ender to represent him precisely
to avoid confusion on such matters. Where petitioner enjoyed the
benefit of appointed counsel almost from the inception of this
relief together as
a due process claim
containing a variety of sub-parts. Read in this way, the Petition
supporting memorandum, namely, that the Board's decision violated
undertaken without valid authorization or authority.
Exhaustion and Procedural Default
sufficiently pled, the court next turns to whether he adequately
habeas petitioner must exhaust his claims by fairly presenting
them to the state's highest court, either through a direct appeal
or collateral proceedings,
before a federal court will consider
1 It is not clear why counsel did not file an amended petition so as to
clearly state the claims he now argues.
5 - OPINION AND ORDER
the merits of those claims.
(1982). ''As a general rule, a petitioner satisfies the exhaustion
required by the
'affording the state courts a meaningful
opportunity to consider allegations of legal error.'''
Moore, 386 F.3d 896,
915-916 (9th Cir. 2004)
Hillery, 474 U.S. 254, 257,
(quoting Vasquez v.
If a habeas litigant failed
to present his claims to the state courts in a procedural context
in which the merits of the claims were actually considered,
claims have not been fairly presented to the state courts and are
therefore not eligible for federal habeas corpus review.
529 U.S. 446,
453 (2000); Castille v. Peoples,
U.S. 346, 351 (1989).
A petitioner is deemed to have "procedurally defaulted" his
claim if he failed to comply with a
state procedural rule,
failed to raise the claim at the state level at all.
U.S. 722, 750 (1991).
If a petitioner has procedurally defaulted
a claim in state court, a federal court will not review the claim
unless the petitioner shows ''cause and prejudice'' for the failure
to present the constitutional issue to the state court, or makes
a colorable showing of actual innocence.
Gray v. Netherland, 518
(1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
6 - OPINION AND ORDER
Respondent asserts that even if petitioner asserts a federal
claim in this habeas corpus proceeding, he failed to present any
federal claim to Oregon's courts during his judicial appeal.
review of the record reveals that petitioner raised a due process
jurisdiction and authority to conduct a
'prison term hearing' in
2011, the board erred when it violated petitioner's rights to due
process to be free from ad hoc, arbitrary, and capricious actions
by the board."
Respondent's Exhibit 104, p. 41.
He claimed that
Board "deprived petitioner of due process,
Constitution not contain a due process clause,
State v. Miller,
327 Or. 622, 635 n. 10 (1998), but petitioner also cited to Cole
a case which engaged in a detailed
license suspension hearing.
This was sufficient to alert the
Oregon Court of Appeals to the need to adjudicate a federal due
process claim. 2
In his Petition for Review, however, petitioner omitted any
Respondent's Exhibit 116. Nowhere in his Petition for Review did
2 The court notes that petitioner's due process challenge in the Oregon Court
of Appeals did not pertain to the Board's alleged lack of jurisdiction.
7 - OPINION AND ORDER
he cite to any federal law. He therefore failed to fairly present
any due process claim to Oregon's state courts. Because the Lime
for doing so passed long ago,
petitioner's due process claim is
and he has not attempted to excuse the
For the reasons identified above,
the Petition for Writ of
Certificate of Appealability on the basis that petitioner has not
right pursuant to 28 U.S.C.
IT IS SO ORDERED.
day of August, 2017.
United States District Judge
8 - OPINION AND ORDER
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