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)

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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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