Severy v. Oregon Board of Parole & Post-Prison Supervision
Filing
25
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
Petitioner,
OPINION AND ORDER
v.
OREGON 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
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
448 months.
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.
BACKGROUND
In
1985,
a
jury
convicted
petitioner
of
two
Aggravated Murder and one count of Arson in the
The
trial
court
imprisonment
with
convictions,
and
imposed
conviction.
In
a
consecutive
minimums
consecutive
on
10-year
the
of
First Degree.
terms
of
Aggravated
sentence
on
life
Murder
the
Arson
Respondent's Exhibit 113, p. 3.
2004,
petitioner
30-year
two
counts
the
where
Board
it
rehabilitated within a
held
a
concluded
murder
that
he
review
was
hearing
likely
to
for
be
reasonable time and therefore converted
one of his Aggravated Murder sentences to be "life in prison with
the
possibility of
parole
or
work
release."
Id
at
5.
During
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
possibility
remanded
of
parole
petitioner's
or
case
with its decision.
2 - OPINION AND ORDER
work
for
release.
further
Id.
As
a
proceedings
result,
it
consistent
On July 27,
that
is
the
petitioner's
projected
2011,
subject
prison
release
the Board held the prison term hearing
of
this
term
date
at
of
habeas
448
corpus
months,
February
3,
and
2022.
case.
It
established
Id
at
set
a
35-36.
Petitioner sought administrative review of that decision, but the
Board affirmed its July 27,
2011 Board Action Form.
Petitioner
availed himself of his judicial review remedies, but the Oregon
Court
of Appeals
denied relief in a
Oregon Supreme Court denied review.
written opinion,
and the
Respondent's Exhibits 113,
116.
Petitioner
filed
this
28
U.S.C.
§
2254
habeas
corpus
challenge on July 21, 2016. He seeks relief from the Board's July
27, 2011 decision based upon the following grounds for relief:
1.
Violated
petitioner's
5ili
&
14th
Amendments, failing to follow ORS 163.105(2),
once determined capable of rehabilitation in
2004. A matrix range should have been set.
Supporting
Facts:
Unanimous
decision
by
Parole Board should have released inmate
according
to
OAR
255-032-0011 (8):
"The
decision for the Board shall be whether there
are
significant
signs
of
reformation
&
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
3.
The Board of Parole lacked any authority
of legal jurisdiction over petitioner in
2011.
Supporting Facts:
The Board conducted an
illegal second "prison term hearing" where
they increased petitioner's crime category,
plus added an aggravating factor.
The Board
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.
4.
From Supreme Court, petitioner exhausted
his 280 maximum matrix range sentence. In
Feb. 5 2008, entitled petitioner to immediate
release.
Supporting Facts: Petitioner has served 6
years past the maximum combined unitary term
of imprisonment.
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.
Respondent
because:
asks
the
court
deny
relief
on
the
Petition
(1) three of petitioner's four grounds for relief do not
state a federal claim and are therefore not cognizable in this
proceeding;
and
(2)
petitioner
failed
to
fairly
present
any
federal issue to Oregon's state courts, leaving all of his claims
procedurally defaulted.
DISCUSSION
I.
Sufficiency of Petitioner's Grounds for Relief
Respondent contends that although petitioner cites the Fifth
and
Fourteenth
Grounds
Two,
Amendments
Three,
and
as
Four
part
do
of
not
his
Ground
specify
how
One
the
claim,
Board's
actions violated any federal law and therefore provide no basis
for federal habeas corpus relief. Petitioner counters that Ground
4 - OPINION AND ORDER
Three,
if construed liberally,
sets
forth
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.
One
month
after
petitioner
filed
this
case,
the
court
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
case,
it
is
doubtful
construction
Petition's
that
seeks. 1
he
grounds
for
he
The
is
entitled
court
to
nevertheless
relief together as
the
liberal
reads
the
a due process claim
containing a variety of sub-parts. Read in this way, the Petition
contains
claims
the
petitioner's
attorney
argues
in
the
supporting memorandum, namely, that the Board's decision violated
due
process
because
it
was
arbitrary
and
because
it
was
claims
are
undertaken without valid authorization or authority.
II.
Exhaustion and Procedural Default
Having
determined
that
petitioner's
argued
sufficiently pled, the court next turns to whether he adequately
preserved
those
claims
during
his
state
court
proceedings.
A
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
Rose v.
the merits of those claims.
455 U.S.
Lundy,
509,
519
(1982). ''As a general rule, a petitioner satisfies the exhaustion
requirement
by
appropriate
state
state courts,
fairly
presenting
courts
thereby
in
the
federal
the manner
claim
the
required by the
'affording the state courts a meaningful
Casey v.
opportunity to consider allegations of legal error.'''
Moore, 386 F.3d 896,
to
915-916 (9th Cir. 2004)
Hillery, 474 U.S. 254, 257,
(1986)).
(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,
the
claims have not been fairly presented to the state courts and are
therefore not eligible for federal habeas corpus review.
v.
Carpenter,
529 U.S. 446,
Edwards
453 (2000); Castille v. Peoples,
489
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.
Carpenter,
529 U.S.
446,
U.S. 722, 750 (1991).
451
(2000);
Coleman
v.
or
Edwards v.
Thompson,
501
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.
U.S.
152,
162
(1996);
Sawyer
v.
Gray v. Netherland, 518
Whitley,
505
U.S.
(1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
6 - OPINION AND ORDER
333,
337
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.
A
review of the record reveals that petitioner raised a due process
claim
in
his
Appellant's
"Even
Brief:
jurisdiction and authority to conduct a
if
the
board
had
'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."
the
Respondent's Exhibit 104, p. 41.
He claimed that
Board "deprived petitioner of due process,
petitioner
proposed
have
a
findings."
meaningful
Id
at
opportunity
43.
Not
which
to
only
challenge
does
Constitution not contain a due process clause,
required
the
the
Oregon
State v. Miller,
327 Or. 622, 635 n. 10 (1998), but petitioner also cited to Cole
v.
DMI/,
336 Or.
565
Fourteenth Amendment
(2004),
a case which engaged in a detailed
discussion
license suspension hearing.
Id.
in
the
context
of
a
driver's
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
mention
decision
of
was
due
process,
arbitrary,
no
and
longer
did
not
argued
cite
that
to
the
the
Board's
Cole
case.
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,
procedurally defaulted,
petitioner's due process claim is
and he has not attempted to excuse the
default.
CONCLUSION
For the reasons identified above,
Habeas
Corpus
( #2)
is
denied.
The
the Petition for Writ of
court
declines
to
issue
a
Certificate of Appealability on the basis that petitioner has not
made
a
substantial
showing
right pursuant to 28 U.S.C.
of
§
the
denial
of
a
constitutional
2253(c) (2).
IT IS SO ORDERED.
DATED this
~
day of August, 2017.
~J~
United States District Judge
8 - OPINION AND ORDER
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