Opinion
Case No. 2:16-cv-01841-TC
06-14-2018
RICHARD W. SALMON, Petitioner, v. MARK NOOTH, (Superintendent of SRCI), OREGON BOARD OF PAROLE, Respondents.
FINDINGS AND RECOMMENDATION :
Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner primarily argues that the Oregon Board of Parole and Post-Prison Supervision (the Board) violated his federal constitutional rights when it obtained two psychological evaluations before petitioner's parole hearing and failed to provide adequate reasons to defer his parole release date. For the reasons explained below, the petition should be denied.
I. BACKGROUND
In 1986, petitioner was convicted of one count of murder in Multnomah County Circuit Court and received an indeterminate sentence of life imprisonment. Resp't Ex. 101 at 5-6.
In April 2012, the Board conducted an exit interview hearing to assess and review petitioner's projected release date of August 29, 2012. Resp't Ex. 103 at 96-207. Prior to the hearing, the Board had arranged for the evaluation of petitioner by two different psychologists. Resp't Ex. 102 at 6; Ex. 103 at 100. Petitioner appeared at the hearing and confirmed that he had received a packet of materials, including a "notice of rights" and the relevant psychological evaluations; the Board confirmed that it had received materials from petitioner for its review. Resp't Ex. 103 at 99-100.
The Board questioned petitioner about the circumstances of his offense, his activities in prison, and his parole plan, and petitioner expressed his concerns about the opinions rendered by the two psychologists. Resp't Ex. 103 at 96-178, 200-02. The Board also heard from a representative of the victim's family and a Multnomah County Deputy District Attorney. Resp't Ex. 103 at 178-199. A majority of the Board concluded that petitioner suffered "from a present severe emotional disturbance that constitutes a danger to the health or safety of the community," based on "the doctors' report[s] and diagnosis coupled with all of the information that the Board is considering." Resp't Ex. 102 at 4; Ex. 103 at 203-04. Accordingly, the Board deferred petitioner's release on parole and set a new release date of August 29, 2014. Id.
Petitioner sought administrative review of the Board's ruling, arguing primarily that the Board's decision was not supported by substantial evidence or reasoning and the Board had improperly ordered two psychological evaluations. Resp't Ex. 103 at 216-222. The Board rejected petitioner's request for relief, stating:
After listening to everything you had to say and considering all the information before it, the Board did not feel that it would be safe to release you into the community. This decision falls squarely within the discretion of the Board as authorized by OAR 255-60-005(4) (5/19/1982), which allows the Board to order the postponement of the scheduled parole release date "if the record indicates that a psychiatric or psychological condition of severe emotional disturbance such as
to constitute a danger to the health and/or safety of the community" is present. The Board, taking both Dr. McGuffin's and Dr. Stuckey's reports and diagnoses into account, determined you presented with a severe emotional disturbance such as to constitute a danger to the health or safety of the community. Thus, the Board rejects your claims that it lacks substantial evidence to find that you have a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, that the evidence you presented of rehabilitation outweighed the evidence to the contrary, and that it deferred your release date solely because of your severe emotional disturbance.Resp't Ex. 102 at 7.
Petitioner then sought judicial review of the Board's decision, arguing that the Board erred in ordering a second psychological evaluation, finding that petitioner presented with a severe emotional disturbance, and relying on "confidential information" submitted by members of the victim's family. Resp. Ex. 104 at 2-4. During this process, petitioner requested the appointment of new counsel or the opportunity to file supplemental pro se briefing, and the Court of Appeals denied those requests. Resp't Exs. 107-09. The Court of Appeals ultimately affirmed the Board's ruling without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 114-15.
Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2254.
II. DISCUSSION
In Grounds A through H, petitioner challenges the Board's decision to defer his parole release date. Specifically, in Grounds A, B, C, and G, petitioner argues that the Board's decision was based on insufficient and improperly weighed evidence. Pet. at 4-7, 10 (ECF No. 2). In Ground D, petitioner argues that the Board improperly considered "confidential" information from the victim's family that was not provided to him. Id. at 7. In Grounds E and F, petitioner argues that the Board improperly sought an opinion from a second psychologist, and in Ground H, petitioner alleges that the Board engaged in "doctor shopping." Id. at 8-10.
Respondent maintains that most of these claims are unexhausted and procedurally defaulted and that all of the claims lack merit. Regardless of procedural default, I agree that petitioner's claims fail on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
As an initial matter, Grounds A through H are premised on the Board's alleged failure to comply with Oregon statutory and regulatory requirements governing the parole process. However, federal habeas relief is not available to remedy alleged violations of state law, and whether the Board incorrectly applied Oregon law is not a proper question for a federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (reiterating that "federal habeas corpus relief does not lie for errors of state law"). "A state's misapplication of its own laws does not provide a basis for granting a federal writ of habeas corpus." Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011). Instead, petitioner must establish a violation of his federal constitutional rights to support federal habeas relief.
As reiterated by the Supreme Court, there is no federal constitutional right to parole, and states "are under no duty to offer parole to their prisoners." Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (per curiam); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). However, when a state - such as Oregon - chooses to offer parole and creates a liberty interest, it must provide "fair procedures" for the "vindication" of that interest. Swarthout, 562 U.S. at 220; Miller v. Or. Bd. of Parole & Post-Prison Super., 642 F.3d 711, 716 (9th Cir. 2011); see also Roberts, 640 F.3d at 1046 ("[T]here is no substantive due process right created by California's parole scheme. If the state affords the procedural protections required . . . that is the end of the matter for purposes of the Due Process Clause.").
"In the context of parole, we have held that the procedures required are minimal." Swarthout, 562 U.S. at 220. Generally, if a prisoner "was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied," due process standards are met. Id. "Because the only federal right at issue is procedural, the relevant inquiry is what process [a petitioner] received, not whether the state court decided the case correctly." Id. at 222.
The record reflects, and petitioner does not dispute, that he received: 1) prior notice of the exit interview hearing; 2) the opportunity to be heard at his hearing (through testimony and submitted materials); and 3) a written decision by the Board explaining why it deferred his parole release date. See Resp. Ex. 102 at 4; Ex. 103 at 96-178. That is "the beginning and the end of the federal habeas courts' inquiry," and petitioner received the process he was due under the federal constitution. Swarthout, 562 U.S. at 220.
Finally, in Ground I, petitioner contends that the Oregon Court of Appeals improperly denied him new counsel on judicial review and disallowed supplemental pro se briefing. Pet. at 10-12. However, petitioner had no federal constitutional right to counsel during judicial review of the Board's decision. Myers v. Peterson, 744 F. Supp. 976, 980 (D. Or. 1989), aff'd, 902 F.2d 1579 (9th Cir. 1990) (finding that the petitioner "had no federal constitutional right to effective assistance of counsel on his petition for review of the Parole Board order, despite his state statutory right to counsel"). Therefore, the Court of Appeals' denial of new counsel did not implicate petitioner's federal constitutional rights.
CONCLUSION
The Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED and this case DISMISSED with prejudice. A Certificate of Appealability should be denied 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).
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 shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as 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 this recommendation.
Dated this 14 day of June, 2018.
/s/_________
Thomas Coffin
United States Magistrate Judge