Opinion
CV 02-85-BR (Lead Case), CV 02-480-BR (Related Case).
February 18, 2004
ANTHONY D. BORNSTEIN, Assistant Federal Public Defender, Portland, OR, Attorney for Petitioner.
HARDY MYERS, Attorney General, LYNN DAVID LARSEN, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
Petitioner, an inmate at the Snake River Correctional Institution, brings these consolidated cases pursuant to 28 U.S.C. § 2254. For the following reasons, habeas corpus relief is DENIED in both cases.
BACKGROUND
Petitioner is in the custody of the Oregon Department of Corrections ("ODOC") pursuant to a January 31, 1985, judgment of conviction from Multnomah County Circuit Court on charges of Rape in the First Degree, two counts of Sodomy in the First Degree, and Sexual Abuse in the First Degree. The trial court sentenced Petitioner to twenty years on each of the rape and sodomy convictions, and to five years on the sexual abuse conviction. The court ordered the sentences to be served concurrently, but consecutive to other sentences previously imposed.
Petitioner does not attack his convictions or sentences in these cases. Instead, he attacks two decisions of the Board of Parole and Post-Prison Supervision (the "Board") deferring his parole release date. In CV 02-84-BR, Petitioner attacks a March 17, 1998, Board decision (the "1998 Decision") to defer his parole by 24 months, while in CV 02-480-BR, he attacks a similar order issued by the Board on November 9, 1999 (the "1999 Decision").
I. The 1998 Decision
The Board gave the following reason for deferring Petitioner's parole in the 1998 Decision:
The Board, based on all the information it is considering at this hearing finds that the Doctor's diagnosis coupled with all the information it is considering, does result in a finding of a present several emotional disturbance such as to constitute a danger to the health and safety of the community. The Board has considered this matter under the laws in effect at the time of the commitment offense(s).
Resp. Exh. 101 (CV 02-85-BR).
The "Doctor's diagnosis" to which the Board referred was contained in a September 27, 1997, psychological evaluation by Dr. Robert Stuckey:
[Petitioner] is an individual who could be very charming and pleasant, but in spite of his past treatment efforts, has not made any substantial psychological change. He can involve himself in legal activities, but he does not have any real insight into his own behavior and he continues to remain in a state of "denial." He, therefore, is a potentially dangerous individual and he certainly appears to have the capacity to act-out in sexually aggressive ways in the future like he has in the past. Diagnostically, [Petitioner] presented a profile of a Mixed Personality Disorder with much overcontrol of anger and hostility. There appears to be some data indicative of pedophilia. It is my opinion that [Petitioner] presented data suggestive of a Mixed Personality Disorder with passive-aggressive and paranoid features. [Petitioner] appears to be above average in intelligence but he has not utilized such skills to break down his defenses. The results of the present psychological evaluation indicates that [Petitioner] has an emotional condition predisposing him to the commission of a crime to a degree rendering him a danger to the health and safety of the community.
Resp. Exh. 102, pp. 2-3 (CV 02-85-BR).
Petitioner sought administrative review of the 1998 Decision, which was denied. He then filed a petition for state habeas corpus relief, which was also denied. On appeal, the Oregon Court of Appeals granted the state's motion for summary affirmance on the ground that Petitioner presented no substantial question of law on appeal. Resp. Exh. 138 (CV 02-85-BR). The Oregon Supreme Court denied review. Resp. Exh. 140 (02-85-BR).
Petitioner filed his Petition for Writ of Habeas Corpus in CV 02-85-BR on January 22, 2002. He alleges six grounds for relief:
Ground One: Petitioner's established liberty interest in parole release was originally set at no later than May of 1994. Petitioner's legislatively enacted Matrix release range was set between 66 and 90 months. To date, Petitioner has been continuously imprisoned for over 240 months.
Supporting Facts: Petitioner was convicted in 1984 and the statutes and laws in effect at that time must apply.
The Oregon Board of Parole violated ex post facto laws in deferring Petitioner's parole.
Ground Two: The Oregon Board of Parole has subjected Petitioner to cruel and unusual punishment.
Supporting Facts: The Oregon Board of Parole is in violation of the Eighth Amendment to the United States Constitution and Article 1, Section 13 of the Oregon Constitution in denying Petitioner's equal protection and due process rights.
Ground Three: The members of the Oregon Board of Parole personally diagnosed Petitioner as ". . . inmate suffers from a present severe emotional disturbance sufficient to constitute a danger to the community." (Administrative Review Response #5, dated 12/02/1998).
Supporting Facts: The Board of Parole is in direct violation of the injunction imposed by the United States District Court in Daniels v. Cogswell, CV 79-651. In that case, the United States District Court held that a person who is diagnosed as suffering from a severe emotional disturbance is mentally handicapped, and pursuant to Section 504 of the Rehabilitation Act, is entitled to the benefits and protections of that Act.
Pursuant to the Inmate Communication, dated October 2, 2001, the Oregon Department of Corrections (DOC) denies the Board of Parole diagnosis that Petitioner has a severe emotional disturbance, yet suggests cognitive restructuring and alcohol and drug programs are available for the "Catch-22" system. (See Inmate Communication, Ex. 4).
Ground Four: The Oregon Board of Parole solicited a citizen who has no connection whatsoever with either the conviction or sentence for which Petitioner is currently imprisoned.
Supporting Facts: This citizen, Cathy Bjork, was allowed by the Board of Parole to accuse Petitioner of having at least 150 more victims as well as numerous other unadjudicated and unprovable accusations. The Board of Parole would not allow Petitioner to question or cross examine this accuser. The Board of Parole acknowledges that Cathy Bjork's involvement in any aspect of Petitioner's life, current conviction, as any current victim's advocate or current inprisonment [sic], ". . . expired on 06/03/1987." (Administrative Review Response #5, dated 12/02/1998). To allow this is nothing less than holding a kangaroo trial in which Petitioner has no Constitutional rights whatsoever.
Ground Five: Petitioner has an established liberty interest in parole.
Supporting Facts: Established parole release dates as well as legislatively enacted Matrix Range release dates create a liberty interest in parole and equal protection and due process as guaranteed in the United States Constitution, must be granted.
Ground Six: Petitioner has been trying to get the Board of Parole ordered psychological testing process open and recorded for public record and peer and judicial review. Petitioner, to the best of his ability, tried to waive any confidentiality that may exist within the parameters of the psychological testing and evaluations. The attached Motion and letters (Ex. 5, pages 1-6) were pursuant to subsequent denials of parole but are dated within the parameters of the time period of this instant case.
Respondent argues Petitioner exhausted only one of the above claims in his state proceedings, i.e., that the Board violated ex post facto prohibitions by applying a law that was not in effect at the time Petitioner committed his crimes. Respondent also argues this claim is an issue solely of state law and, in any event, that Petitioner is not entitled to relief on the merits. In response, Petitioner maintains the Board violated the Ex Post Facto Clause when it denied parole based on harsher standards for release resulting from legislation and policies enacted well after the offenses of conviction. In addition, Petitioner contends the evidence before the Board did not support a finding of severe emotional disturbance. Petitioner does not address Respondent's exhaustion argument concerning the remaining claims. II. The 1999 Decision
Unlike his response in CV 02-480-BR discussed supra, Petitioner did not explicitly waive the remaining claims against the 1998 Decision.
The 1999 Decision deferring Petitioner's parole release date for another 24 months contained the following statement:
The Board has received a psychological evaluation on inmate dated 08/05/1999.
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 laws in effect at the time of the committment [sic] offense(s).
Resp. Exh. 102, p. 2 (CV 02-480-BR).
The Board relied on a psychological evaluation completed by Dr. David R. Starr, who concluded:
[Petitioner] was convicted of very serious crimes of rape, sodomy, and sex abuse. He has steadfastly denied his crimes since his convictions in 1985. He is continuing in an appeal process and it is his view that he has not yet been paroled simply because he has appealed his original conviction. Psychological testing is suggestive of a defensive individual who may have problems with authority. He's likely to lack insight in to his own psychological functioning and he would be seen as rebellious and hostile. [Petitioner] does not acknowledge much in the way of personal fault or limitation.
Furthermore, [Petitioner] has a significant lack of empathy and has a great deal of difficulty recognizing the needs, feelings, and ideas of others. He is manipulative and controlling. He misconstrues communication. He makes assumptions and interrupts. [Petitioner's] assessment suggests some improvement in his judgment and thinking since the previous examination in 1995. His interpersonal behavior has not improved much, however, insofar as he continues to be manipulative and controlling of the interview process. He is difficult to interview because he changes the subject so frequently.
It was the examiner's impression that there may have been some softening in [Petitioner's] denial of his crime since the previous evaluation in that he acknowledged a willingness to participate in sex offender treatment. He also acknowledged walking around naked in front of his daughters which may have been construed as sex abuse. He still adamantly denies the rape, sodomy, and sex abuse, however. It is this [sic] opinion of this examiner that [Petitioner] is not likely to be safe in the community until he successfully completes a rigorous, long term treatment program for sex offenders and demonstrates a willingness to cooperate with persons he views in authority. If he can learn to cooperate with supervisors such as a parole officer then he will have some success in parole. As it stands, however, his current behavior is clearly uncooperative.
Resp. Exh. 103, pp. 6-7 (CV 02-480-BR).
Petitioner sought administrative review of the 1999 Decision, which was denied. He again filed a petition for state habeas corpus relief, which was also denied. On appeal, the Oregon Court of Appeals granted the state's motion for summary affirmance on the ground that Petitioner presented no substantial question of law on appeal. Resp. Exh. 124 (CV 02-480-BR). The Oregon Supreme Court denied review. Resp. Exh. 127 (CV 02-480-BR).
Petitioner filed his Petition for Writ of Habeas Corpus in CV 02-480-BR challenging the 1999 Decision on April 11, 2002. The six grounds for relief are similar to those alleged in CV 02-85-BR:
Ground One: Petitioner's established liberty interest in parole release was originally set at no later than May of 1994. Petitioner's legislatively enacted Matrix release range was set at between 66 and 90 months. To date, Petitioner has been continuously imprisoned for over 241 months.
Supporting Facts: Petitioner was convicted in 1984 and the statutes and laws in effect at that time must apply. The Oregon Board of Parole violated ex post facto laws in deferring Petitioner's parole.
Ground Two: The Oregon Board of Parole has subjected Petitioner to cruel and unusual punishment.
Supporting Facts: The Oregon Board of Parole violated Petitioner's rights guaranteed under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. The members of the Oregon Board of Parole is [sic] punishing Petitioner because he maintains his innocence. The Board of Parole members stated, ". . . your denial for committing the offenses lead the Board to the conclusion that you are suffering from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community." (Emphasis added). The United States Constitution guarantees that an individual cannot be punished merely because he or she maintains his or her innocence.
Ground Three: The Oregon Board of Parole is also in violation of the injunction imposed by the United States District Court in Daniels v. Cogswell, CV 79-651.
Supporting Facts: In Daniels v. Cogswell, the United States District Court held that [even if] a person is diagnosed as suffering with a severe emotional disturbance is mentally handicapped, and pursuant to Section 504 of the Rehabilitation Act, is entitled to the benefits and protections of that act. The Oregon Board of Parole members do not allow Petitioner the benefits and protections of that Act.
Ground Four: Petitioner has an established liberty interest in parole.
Supporting Facts: Established parole release dates as well as legislatively enacted matrix ranges for parole release dates create a liberty interest in parole and equal protection and due process rights as guaranteed by the United States Constitution must be granted.
Ground Five: Petitioner has been trying to get the Board of Parole ordered psychological testing process open and recorded and made available for peer and judicial review. The Board of Parole refuses to open this testing for the record.
Supporting Facts: Petitioner, to the best of his ability, has tried to waive any confidentiality, real or feigned, that may exist within the parameters of psychological testing and evaluation. Petitioner's motion and letters were addressed in this case, and show that the Board of Parole has refused to allow their secretive testing and process of evaluation to be open and above board for quality assessment or judicial review. This refusal violates Petitioner's Constitutional rights of due process and equal protection.
Ground Six: The members of the Oregon Board of Parole violated Petitioner's due process rights by refusing to allow civil commitment proceedings.
Supporting Facts: The members of the Oregon Board of Parole diagnosed Petitioner as a dangerous, severely emotionally disturbed individual. Upon this diagnosis, Petitioner must be granted a civil commitment hearing with all protections. The "catch-22" is that the Department of Corrections records indicate that I do not have a severe and persistent mental illness.
Petition, pp. 4-7 (CV 02-480-AS) (emphasis in original).
Again, Respondent argues Petitioner exhausted only one of the above claims in his state proceedings, i.e., that the Board violated ex post facto prohibitions by applying a law that was not in effect at the time Petitioner committed his crimes. Respondent asserts this claim is an issue solely of state law and, in any event, Petitioner is not entitled to relief on the merits. In his response, Petitioner explicitly limits his habeas petition challenging the 1999 Decision to the claim the Board violated ex post facto laws in deferring Petitioner's release dates.
DISCUSSION
I. Procedural Defaulted Claims
A. Legal Standards
Generally, a state prisoner must exhaust all available state 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). To satisfy the exhaustion requirement, a prisoner must fairly present his federal claims to the state courts. Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003).
To "fairly" present a federal claim, the prisoner must present both the operative facts and the legal theory on which the claim is based so as to adequately alert the state courts to the federal nature of the claim. Koerner, 328 F.3d at 1046; Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.), cert. denied, 123 S. Ct. 2094 (2003). This may be accomplished by explicit reference to a constitutional amendment or by citing state or federal case law discussing the federal constitutional right in question. See Peterson, 319 F.3d at 1158; Reese v. Baldwin, 282 F.3d 1184, 1190 (9th Cir. 2002), cert. granted, 123 S. Ct. 2213 (2003). Further, the Ninth Circuit concluded a claim is "fairly presented" if the petitioner identifies the federal nature of the claim in a lower state court and that court specifically addresses the federal claim in its opinion in a manner sufficient to put the reviewing court on notice of the specific federal claim. Kelly, 315 F.3d at 1067 (citing Reese, 282 F.3d at 1193).
A federal habeas claim is procedurally defaulted if the claim could have been raised in state court, but was not and is now procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). If a state prisoner has procedurally defaulted his federal claims in state court, federal habeas review is precluded unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 750.
B. Analysis
As noted, Respondent contends Petitioner failed to exhaust all of the grounds for relief alleged in the petition challenging the 1998 Decision with the exception of Petitioner's claim that the Board violated his ex post facto rights. This Court agrees.
Petitioner does not address Respondent's procedural default argument with respect to the petition challenging the 1998 Decision. Although he does not expressly waive these grounds for relief, he does not present any legal argument in their support. Because Respondent's allegations of procedural default with the exception noted above are correct, and because Petitioner makes no showing of cause and prejudice or fundamental miscarriage of justice to excuse the procedural default, Petitioner is not entitled to relief on the defaulted claims.See 28 U.S.C. § 2248 ("[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.")
II. Relief on the Merits
A. Legal Standards
A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he demonstrates that the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was 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); Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1172-75 (2003).
A state court acts "contrary to . . . clearly established Federal law" if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ramdass v. Angelone, 530 U.S. 156, 165-66 (2000). An "unreasonable application of clearly established Federal law" occurs if a state court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle. Williams, 529 U.S. at 412; Ramdass, 530 U.S. at 166.
Determinations of factual issues by a state court are presumed to be correct, and a petitioner in federal court has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981) (discussing former § 2254(d) presumption of correctness afforded findings of fact). In conducting a review, this Court must look to the last reasoned state-court decision. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003) (citing Franklin v. Johnson, 290 F.3d 1223, 1233 n. 3 (9th Cir. 2002)). When a state court does not articulate a rationale for its determination, a review of that court's application of clearly established law is difficult. As the Ninth Circuit explained: "[f]ederal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (2000) (citation omitted); see also Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002) ("in such a case review of the record is the only means of deciding whether the state court's decision was objectively reasonable").
B. Analysis
1. Oregon Statutory History
At the time Petitioner committed his crimes in 1984, Or. Rev. Stat. § 144.125(3) provided that the Board may extend a prisoner's parole release date "[i]f a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner." Former Or. Rev. Stat. § 144.125(3) (1981).
In 1993, however, the Oregon Legislature amended Or. Rev. Stat. § 144.125(3) to allow the Board to defer release on parole if it finds the prisoner has a "mental or emotional disturbance, deficiency, condition or disorder predisposing the prisoner to the commission of a crime to a degree rendering the prisoner a danger to the health or safety of the community." Former Or. Rev. Stat. § 144.125(3) (1993).
Or. Rev. Stat. § 144.125(3) was further amended by the Oregon Legislature in 1999. That amendment, however, is not pertinent to this action.
2. Application of 1993 Standards
Petitioner contends the Board committed an ex post facto violation by changing the manner in which suitability for parole is determined. He complains that the Board retroactively applied the more onerous 1993 standards for determining parole eligibility instead of the standards in effect at the time he committed his crimes in 1984. Under the 1984 version, Petitioner argues, the Board was required to grant release in the absence of a specific diagnosis from a psychiatrist or psychologist of a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community." Because the Board did not have before it such a diagnosis in either 1998 or 1999, Petitioner concludes the Board necessarily applied the 1993 standards.
Petitioner is incorrect. In both the 1998 and 1999 Decisions, the Board specifically stated it had considered Petitioner's release eligibility under the laws in effect at the time Petitioner committed his offenses. Moreover, the Oregon Court of Appeals has concluded that the version of Or. Rev. Stat. § 144.125(3) in effect in 1984 did "not require that a psychiatrist or psychologist recite the words `severe emotional disturbance' when diagnosing the prisoner, nor [did] it require that the Board base its release decision solely on a psychiatrist or psychologist's diagnosis of `severe emotional disturbance.'" Weidner v. Armenakis, 154 Or. App. 12, 17, 969 P.2d 623 (1998) (construing identical 1991 version of Or. Rev. Stat. § 144.125(3)), vacated as moot, 327 Or. 317, 966 P.2d 220 (1998); Merrill v. Johnson, 155 Or. App. 295, 964 P.2d 284 (adopting reasoning of Weidner), rev. denied, 328 Or. 40, 977 P.2d 1170 (1998); see also Godleske v. Morrow, 161 Or. App. 523, 526, 984 P.2d 339 (1991) (construing the 1981 version of Or. Rev. Stat. § 144.125(3)), rev. denied, 330 Or. 553, 10 P.3d 948 (2000).
This Court defers to the state courts' construction of its penal statute unless the interpretation is untenable or amounts to a subterfuge to avoid federal review of a constitutional violation. Aponte v. Gomez, 993 F.2d 705, 707 (9th Cir. 1998). This Court previously found, and reiterates here, that the state courts' interpretation of Or. Rev. Stat. § 144.125(3) is neither untenable nor a subterfuge. See Everist v. Czerniak, CV 02-386-BR, Opinion and Order, p. 14 n. 3.
The standard to determine whether a prisoner has a severe emotional disturbance such as to constitute a danger to the health or safety of the community is a legal one, rather than a medical one, and the decision is the Board's. Weidner, 154 Or. App. at 19-20. Accordingly, it is not apparent the Board applied the 1993, rather than the 1981, standards in postponing Petitioner's parole release date in either 1998 or 1999.
3. Reinterpretation of 1984 Standards
Even if the Board applied the 1984 version of Or. Rev. Stat. § 144.125(3), Petitioner nonetheless argues the Board violated the Ex Post Facto Clause by reinterpreting the law to expand its authority to deny release. Petitioner contends that in 1984 the Board had interpreted the statute to mandate a prisoner's release on parole in the absence of a specific diagnosis by a Board-appointed psychiatrist or psychologist that the inmate suffered from a "severe emotional disturbance." Thus, comparing the Board's previous interpretation of the 1984 version of the statute to the current interpretation, Petitioner maintains his term of incarceration increased.
The Ex Post Facto Clause prohibits states from enacting laws which, by retroactive application, increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 250 (2000); Lynce v. Mathis, 519 U.S. 433, 441 (1997). Retroactive changes in laws governing the availability of parole to prisoners, in some instances, may violate this precept. Garner, 529 U.S. at 250.
The relevant inquiry in cases involving parole is whether the amended rule creates a significant risk of prolonging a prisoner's incarceration. Garner, 529 U.S. at 251. As noted in Garner, however, 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." Id. at 250. In determining whether a change in parole laws actually resulted in increased punishment, policy statements, along with actual practices of the Board, are important considerations. Id. at 256.
In Everist v. Czerniak, CV 02-386-BR, this Court previously considered the argument that application of the Board's revised interpretation of its authority under the 1981 version of Or. Rev. Stat. § 144.125(3) to postpone release on parole violated the Ex Post Facto Clause. Upon reviewing various Supreme Court and circuit decisions, the Court concluded there was no clearly established federal law addressing this issue. See Portley v. Grossman, 444 U.S. 1311 (1980); California Department of Corrections v. Morales, 514 U.S. 499 (1995); Garner, 529 U.S. at 251-52; see also Holguin v. Raines, 695 F.2d 372, 374 (9th Cir. 1982), cert. denied, 464 U.S. 896 (1983); Methany v. Hammonds, 216 F.3d 1307 (11th Cir. 2000), cert. denied, 531 U.S. 1196 (2001); Hamm v. Latessa, 72 F.3d 947, 956 n. 14 (1st Cir. 1995), cert. denied, 519 U.S. 856 (1996). As such, this Court further concluded that the Oregon courts' decisions denying the prisoner relief in Everist were neither contrary to nor an unreasonable application of clearly established federal law.
The Court reaches the same conclusion here. The state courts' decisions denying Petitioner habeas corpus relief were neither contrary to, nor an unreasonable application of, clearly established federal law because the Board's 1998 and 1999 Decisions did not increase the punishment for Petitioner's crime or alter the standards for determining parole eligibility after the commission of Petitioner's crimes in 1984. Petitioner, therefore, is not entitled to federal habeas corpus relief, and his request for discovery in CV 02-85-BR is DENIED.
CONCLUSION
For these reasons, the Court DENIES the Petitions for Writ of Habeas Corpus in both Hess v. Lampert, CV 02-85-BR (Doc. #2) and Hess v. Lampert, CV 02-480-BR (Doc. #2), and DISMISSES these actions.
IT IS SO ORDERED.