Opinion
6:21-cv-01143-CL
08-01-2022
PAUL ERVEN JACKSON, Petitioner, v. JOSHUA HIGHBERGER, Superintendent, Oregon State Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
CLARKE, MAGISTRATE JUDGE.
Petitioner Paul Erven Jackson (“Petitioner”), an individual in custody at Oregon State Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 challenging a 2019 ruling by the Oregon Board of Parole and Post-Prison Supervision (the “Board”). For the reasons set forth below, the district judge should DISMISS AS MOOT the Petition for Writ of Habeas Corpus (ECF No. 2) and decline to issue a certificate of appealability.
BACKGROUND
In June 1990, Petitioner and his half-brother, Vance Roberts (“Roberts”), abducted a woman (the “victim”), confined her in Roberts's home, and repeatedly raped her for twenty-four hours before she managed to escape. (Resp't Exs. (ECF No. 22), Ex. 101 at 19-22.) The victim reported her ordeal to the police, who arrested Roberts and Petitioner and executed a search warrant at Roberts's home. (Id. at 22-24.) Police investigators found, among other things, several Polaroid photographs depicting various women in bondage. (Id. at 24.) The police were able to identify arid interview one of the women, who described similarly being abducted, bound, sexually assaulted, and continuously abused over the course of seven days in 1988, before then being released. (Id.) The woman ultimately identified Roberts and Petitioner as her captors. (Id.)
When citing Respondent's Exhibits, the Court cites to the exhibit-assigned pagination located in the lower right comer. .
For the crimes committed in 1988, Petitioner was charged in Washington County Circuit Court Case No. C901052CR with four counts of Kidnapping in the First Degree; two counts of Sexual Penetration with a Foreign Object; four counts of Sodomy in the First Degree; three counts of Rape in the First Degree; and one count of Sexual Abuse in the First Degree. (Id. at 8, 15-16.) For the crimes committed in 1990, Petitioner was charged in Washington County Circuit Court Case No. C901053CR with four counts of first-degree kidnapping; two counts of first-degree sodomy; three counts of first-degree rape; and two counts of first-degree sexual abuse. t' (Id. at 11, 18.)
Roberts and Petitioner posted bail and were conditionally released shortly after their arrest. (Id. at 25.) Both absconded, with Petitioner fleeing to Guadalajara, Mexico, where he cultivated a new life under an assumed identity. (Id. at 25-26.) Twenty-four years later, in 2015, Petitioner was identified, arrested, and extradited to the United States. (Id. at 26-27.)
On May 5, 2016, Petitioner pleaded guilty to all counts in the Washington County Circuit Court. (Resp'tEx. 101 at 27.) For Case No. C901052CR, which concerned the 1988 crimes, Petitioner was sentenced to an indeterminate sentence of eighteen years under the matrix system. (Id. at 8-9.) For Case No. C901053CR, which concerned the 1990 crimes, Petitioner was sentenced to a determinate sentence of 216 months under Oregon's sentencing guidelines. (Id. at 11-13.) The Circuit Court ordered that Petitioner's matrix and guidelines sentences would run concurrently for a total custodial term of 216 months, (kt)
Effective November 1, 1989, the Oregon legislature abolished Oregon's matrix system and replaced it with the sentencing guidelines. Engweiler v. Bd. of Parole and Post-Prison Supervision, 343 Or. 536, 540 (2007) (en banc). Because Case No. C901053CR concerned crimes committed after November 1, 1989, it was subject to the sentencing guidelines rather than the indeterminate sentencing system applicable to Case No. C901052CR.
On May 1,2019, the Board held a hearing to establish a prison term on Petitioner's indeterminate sentence in Case No. C901052CR. (Resp't Ex. 103 at 4, 86-97.) At the hearing, the Board explained that although it had jurisdiction over Petitioner's “matrix case,” it would not “be considering [Petitioner's] sentencing guidelines case, as . .. the Board has no authority or .. . jurisdiction over [it].” (Id. at 89.) The Board ultimately imposed a fifty-six-month prison term and set Petitioner's parole release date for May 2, 2020 on the matrix offenses, noting that the Oregon Department of Corrections would “determine [Petitioner's] actual physical release date” to account for his concurrent guidelines sentence. (Id. at 97.) In closing, the Board noted that January 23, 2030 appeared to be the earliest possible date that Petitioner could be released from prison. (Id.)
The Board memorialized its decision in a Board Action Form (“BAF No. 1”). (Id. at 99100.) The Board expressly noted in BAF No. 1 that Petitioner also had “concurrent sentencing guideline sentences with an earliest release date of 01/23/2030.” (Id. at 100.)
On June 7, 2019, Petitioner sought administrative review of BAF No. 1, arguing that the Board improperly relied on an inadmissible and biased post-sentence report in setting his matrix prison term. (Id. at 104-05.) Petitioner also argued that the parole release date set by the Board - May 2, 2020 - “established [Petitioner's] actual date of release from prison” and that he was “legally entitled to release [on his matrix and guidelines cases] on that date.” (Id. at 105-06.) .
In an Administrative Review Response dated August 6, 2019, the Board denied relief, finding, among other things, that the post-sentence report at issue was relevant, accurate, and contained information helpful to Petitioner. (Id. at 113-14.) With respect to Petitioner's arguments concerning his proper release date, the Board again noted its limited jurisdiction, explaining:
As you are serving concurrent time on your sentencing guidelines case, you will not be automatically paroled to the community on May 2, 2020 as you demand you are legally entitled to be.. .. The Board was required to establish a prison term and parole release date on your matrix case, and it did so. The Board does not have any jurisdiction relative to release on your sentencing guidelines case, and therefore does not have the authority to release you into the community on May 2, 2020. The Department of Corrections has calculated a firm release date of January 23, 2030 on your sentencing guidelines case. You will remain in custody until that date.(Id. at 114.)
Petitioner sought judicial review of the Board's decision. (Resp't Ex. 104.) On July 28, 2020, Petitioner, through appointed counsel, filed a Notice of Probable Mootness. (Id.) In the Notice, Petitioner explained that he sought release on May 2, 2020 in accordance with his parole release date, but acknowledged that he “was not released on May 2 because he is serving a guidelines sentence in a related criminal case in which he has an earliest release date (set by DOC) of January 23, 2030.” (Id.) Petitioner further conceded in the Notice that “the Board does not, in fact, have any authority to release [him], and [that] his claims that the Board used - inappropriate evidence in setting a release date that is now past, are moot.” (Id.) The Oregon Court of Appeals agreed and dismissed the appeal. (Resp't Ex. 105.)
Petitioner moved for reconsideration pro se, arguing that the order of dismissal should be vacated because his claims were reviewable pursuant to Oregon Revised Statute § 14.175.(Resp't Exs. 106, 107.) The Court of Appeals disagreed, explaining that because Petitioner “is serving a guidelines sentence in a related criminal case in which his earliest release date is January 23, 2030, a decision in this case can offer no practical relief,” and declining “to exercise its discretion to review the proceeding under [ORS 14.175].” (Resp't Ex. 108.) The Oregon Court of Appeals thus adhered to the order of dismissal. (Id.) The Oregon Supreme Court denied review. (Resp't Ex. 111.)
ORS 14.175 provides:
In any action in which a party alleges that an act, police or practice of a public body, as defined in ORS 174.109, or of any officer, employee or agent of a public body, as defined in ORS 174.109, is unconstitutional or otherwise contrary to law, the party may continue to prosecute the action and the court may issue a judgment on the validity of the challenged act, policy or practice even though the specific act, policy or practice giving rise to the action no longer has a practical effect on the party if the court determines that:
(1) The party had standing to commence the action;
(2) The act challenged by the party is capable of repetition, or the policy or practice challenged by the party continues in effect; and
(3) The challenged policy or practice, or similar acts, are likely to evade judicial review in the future.
On August 4, 2021, Petitioner filed a Petition for Writ of Habeas Corpus (the “Petition”) in this Court, asserting four grounds for relief, as follows:
(a) Ground One (Due Process Violation)
Petitioner is entitled to relief on the ground that he is being unlawfully detained in violation of his rights under the Fourteenth Amendment to the United States Constitution, because he was denied due process. The Oregon Board of Parole's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United
States and was based on a decision that was based on an unreasonable; determination of the facts in light of the evidence presented in the Board proceeding in the following manner:
By rendering a decision that was devoid of evidence, or based on evidence that lacked an indicia of reliability with which the Board could use to base a release decision that will ultimately be used to fashion and enforce conditions of release and parole, which denied [Petitioner] an opportunity to be heard and a fundamentally fair hearing. Williams v. Pennsylvania,___U.S.,)) 136 S.Ct. 1899 (2016).
(b) Ground Two (Due Process Violation)
Petitioner is entitled to relief on the ground that he is being unlawfully detained in violation of his rights under the Fourteenth Amendment to the United States Constitution, because he was denied due process. The Oregon Board of Parole's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States and was based on a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Board proceeding in the following manner:
When the Board prejudged and predetermined the outcome of the ... hearing when it knowingly utilized and considered a post-sentence report that was completed and complied [sic] mainly based on news articles, which were biased against Petitioner. Williams v. Pennsylvania,__U.S.,__ 136 S.Ct. 1899 (2016).
(c) Ground Three (Due Process Violation)
Petitioner is entitled to relief on the ground that he is being unlawfully detained in violation of his rights under the Fourteenth Amendment to the United States Constitution, because he was denied due process. The Oregon Board of Parole's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States and was based on a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Board proceeding in the following manner:
When the Board deliberately denied Petitioner his liberty interest in his May 2, 2020 release date. Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989); Williams v. Pennsylvania,__U.S.__, 136 S.Ct. 1899 (2016).
[(d)] Ground Four (Cruel and Unusual Punishment Violation)
Petitioner is entitled to relief on the ground that he is being unlawfully detained in violation of his rights under the Eighth Amendment to the United State Constitution, because the Board acted in a way that was deliberately indifferent to Petitioner's liberty interested May 2, 2020 release date. The Oregon Board of Parole's decision resulted in, and was contrary to, or involved an
unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States and was based on a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Board proceeding. Haygoodv. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985); Williams v. Pennsylvania,__U.S.__, 136 S.Ct. 1899 (2016). .(Pet. at 6-8.) Respondent urges this Court to deny habeas relief, arguing that Petitioner's claims are moot and procedurally defaulted, and otherwise lack merit. (Resp. to Pet. (ECF No. 20).)
DISCUSSION
Petitioner asks this Court to vacate BAF No. 1, arguing that the Board's improper use of a “false and erroneous” post-sentence report and its decision “setting a release date for May 2, 2020, but refusing to actually order[] his release on that date” violated his right to due process under the Fourteenth Amendment and rendered his continued incarceration cruel and unusual punishment under the Eighth Amendment. (Pet'r's Mem. (ECF No. 27), at 1.) As noted above, Petitioner filed the Petition on August 4, 2021, over a year after the carceral sentence imposed by the Board had expired.
“Article III, Section 2 of the United State Constitution establishes the scope of federal court jurisdiction, which includes “all Cases ... arising under this Constitution ... [and] Controversies to which the United States shall be Party[.]”' Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005). The case-or-controversy requirement “underpins ... mootness jurisprudencef.]” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, . 180 (2000). Mootness is jurisdictional. See Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000) (explaining that “mootness [is a] jurisdictional issue[] deriving from the requirement of a case or controversy under Article III”). “This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (simplified); see also Am. Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997) (explaining that federal courts “do[] not have jurisdiction to give . opinions upon moot questions ... or to declare principles or rules of law which cannot affect the matter in issue in the case before it”) (simplified).
In determining whether a habeas petition is moot, the “analysis is specifically limited to the sort of equitable relief [that the court] may grant in response to a habeas petition[.]” Burnett, 432 F,3d at 999. A habeas petition therefore is moot when the petitioner “seeks relief [that] cannot be redressed by a favorable decision of the court issuing a writ of habeas corpus.” Id. at 1000-01 (simplified). A moot petition must be dismissed because there is nothing left before the court to be remedied. See Spencer, 523 U.S. at 18 (explaining that mootness deprives a federal court of the “power to act” because “there is nothing for [the court] to remedy”).
Petitioner challenges the Board's 2019 ruling setting a prison term and parole release date, but that prison term already has expired and the parole release date long since has passed. Petitioner instead remains in custody while he is serving his concurrent guidelines sentence and may be released, at the earliest, on January 23, 2030. Because the release date set by the Board already has passed, and because the Board did not consider, determine, or otherwise change Petitioner's guidelines sentence and does not possess the authority to do so, any alleged injury traceable to the Board “cannot be redressed by a favorable decision of the court issuing a writ of habeas corpus.” Burnett, 432 F.3d at 1000-01.
Petitioner appears to concede that the expiration of his matrix prison term generally would moot his claims. (Pet'r's Mem. at 23-24.) He argues, however, that this case is not moot because it is “capable of repetition, yet evading review.” (Id.) “[T]he capable-of-repetition doctrine applies only in exceptional situations where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again[.]” Spencer, 523 U.S. at 17 (simplified).
Neither condition is met here. Petitioner has not demonstrated that the time between the Board's decision setting a prison term and the expiration of that term is always so short as to evade review. Nor has he demonstrated a reasonable likelihood that he again will be convicted of a matrix offense that will require the Board to set a prison term and parole release date. See, e.g., id. (finding capable-of-repetition doctrine did not apply where petitioner failed to establish “that the time between parole revocation and expiration of sentence is always so short as to evade review” and that there was “a reasonable likelihood that he once again will be paroled and have that parole revoked”). The capable-of-repetition doctrine therefore does not apply.
Petitioner's claims challenging the Board's 2019 decision setting a prison term and parole release date on his matrix offenses are moot. Because mootness deprives this Court of jurisdiction, the district judge should dismiss the petition and should decline to address Respondent's additional arguments.
CONCLUSION
Based on the foregoing, the district judge should DISMISS the Petition for Writ of Habeas Corpus (ECF No. 2), without prejudice, and should DENY a Certificate of Appealability. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or Judgment entered pursuant to the Magistrate Judge's recommendation.