Opinion
Civil No. 02-1518-JE.
July 15, 2004
Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Youlee Yim You, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner brings this 28 U.S.C. § 2254 habeas corpus action challenging a decision by the Oregon Board of Parole and Post-Prison Supervision postponing his release. For the reasons set forth below, the Amended Petition for Writ of Habeas Corpus (#32) should be denied, and judgment should be entered dismissing this case with prejudice.
BACKGROUND
Petitioner is presently in the custody of the Oregon Department of Corrections serving four indeterminate, consecutive 20-year prison terms for Attempted Murder, Robbery in the First Degree, Rape in the First Degree and Sodomy in the First Degree. Respondent's Exhibit 101. On March 8, 1995, petitioner appeared before the Oregon Board of Parole and Post-Prison Supervision ("Board") seeking early release. After considering a psychological evaluation conducted on January 12, 1995 by Dr. H.F. Shellman, the Board elected to defer petitioner's release date as follows:
BASED ON ALL THE INFORMATION THE BOARD IS CONSIDERING AT THIS HEARING, PURSUANT TO HB 2478, THE BOARD FINDS THAT YOU DO HAVE A MENTAL OR EMOTIONAL DISTURBANCE, DEFICIENCY, CONDITION OR DISORDER, PREDISPOSING YOU TO THE COMMISSION OF A CRIME TO A DEGREE RENDERING YOU A DANGER TO THE HEALTH OR SAFETY OF THE COMMUNITY.
Respondent's Exhibit 103.
Petitioner then sought administrative review of the Board's decision. The Board upheld its ruling, finding that its deferral was supported by "substantial evidence in the record." Respondent's Exhibit 104. The Board explained:
IN DECIDING TO DEFER YOUR RELEASE DATE, THE BOARD CONSIDERED ALL OF THE INFORMATION BEFORE IT, INCLUDING THE UNDERLYING NATURE OF YOUR CRIME, THE PSYCHOLOGICAL EVALUATION, STATEMENTS MADE AT YOUR EXIT INTERVIEW HEARING, AND ALL OTHER MATERIALS IN YOUR FILE. THAT INFORMATION CONSTITUTES SUBSTANTIAL EVIDENCE TO SUPPORT THE BOARD'S ACTION. THE INFORMATION YOU NOW SUBMIT DOES NOT PERSUADE THE BOARD TO THE CONTRARY. THE BOARD ACTED WITHIN ITS RULES AND AUTHORITY TO DEFER YOUR PAROLE RELEASE DATE. THE MERE FACT THAT YOU DO NOT AGREE WITH THE DECISION DOES NOT INVALIDATE IT.Id.
On December 4, 1996, petitioner filed a state petition for writ of habeas corpus. Respondent's Exhibit 107. Among other claims, petitioner asserted the Board's retroactive application of the Oregon parole statute, ORS 144.125(3), violated the Ex Post Facto Clause and his right to due process under the U.S. Constitution. Id at 10. The state habeas court agreed, and ordered petitioner's release unless that Board determined that, "under the pre-1993 version of ORS 144.125(3), [petitioner's] parole should be postponed." Respondent's Exhibit 111.
On April 11, 1997, the Board conducted another review of petitioner's case, this time applying the former version of ORS 144.125(3). It found:
THE FULL BOARD HAS REVIEWED THIS FILE AND THE HEARING TAPE ADMINISTRATIVELY IN LIGHT OF THE APPELLATE COURT DECISION IN MEADOWS VS. SHIEDLER. BASED ON ALL THE INFORMATION THE BOARD HAS CONSIDERED AT THIS REVIEW AND THE PRIOR HEARING, AND APPLYING THE LAW IN EFFECT AT THE TIME YOU COMMITTED YOUR CRIME, THE BOARD FINDS THAT YOU SUFFER FROM A PRESENT SEVERE EMOTIONAL DISTURBANCE SUCH AS TO CONSTITUTE A DANGER TO THE HEALTH OR SAFETY OF THE COMMUNITY. THE PROJECTED RELEASE DATE REMAINS AT 11/03/1998, THE BOARD WILL SET ANOTHER EXIT INTERVIEW WITH A PSYCHOLOGICAL EXAM.
Respondent's Exhibit 106.
Petitioner then filed a second state habeas petition which the state court denied in a written opinion. Respondent's Exhibits 114 122. Petitioner appealed the denial and, following an Oregon Supreme Court remand based on an erroneous finding of mootness, the Oregon Court of Appeals affirmed the lower court's dismissal without opinion. Respondent's Exhibit 136. The Supreme Court denied review. Respondent's Exhibit 135.
On November 8, 2002, petitioner filed the current action. In his Amended Petition, he alleges that the Board's decision to defer his parole violated his Fourteenth Amendment right to due process "when it denied his early release based upon a finding that did not meet the requisite legal standard for continued detention in prison." Amended Petition (#32), p. 2. Respondent asks the court to deny relief on this claim because the state court decisions are entitled to deference.
DISCUSSION
I. Standard of Review.
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "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). A state court's findings of fact are presumed correct and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. The state court's application of clearly established law must be objectively unreasonable. Id at 409. II. Analysis.
Petitioner alleges that the Board's April 11, 1997 decision deferring his release pursuant to ORS 144.125(3) violated his right to due process because Dr. Shellman's diagnosis did not provide sufficient evidence from which to draw the conclusion required by ORS 144.125(3) that petitioner suffered from a severe emotional disturbance. Petitioner bases his federal due process argument on Superintendent v. Hill, 472 U.S. 445 (1985). InHill, the Supreme Court addressed the kind of evidence required to satisfy due process considerations in a prison disciplinary hearing:
We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.Id at 455-56 (internal citations omitted).
In the case at bar, the state habeas court made the following findings with respect to petitioner's due process claim:
Again, my task is to determine if the Board had a legally sufficient basis to defer parole, i.e. that there is evidence having some indicia of reliability supporting their decision. It is not, to substitute my own interpretation of Dr. Shellman's report for the Board's. I feel I must state this in this case, because I would not personally find that a "present severe emotional disturbance" exists based upon the evidence before me. However, for the reasons cited above, there is "some evidence having an indicia of reliability" from which the Board could reach a finding of a present severe emotional disturbance, and that that disturbance constitutes a danger to health or safety of the community.
Respondent's Exhibit 122.
The version of ORS 144.125(3) in effect at the time petitioner committed his crimes allowed the Board to postpone release only if "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. . . ." In 1993, the Oregon legislature amended the statute to allow the Board to postpone release 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." O.R.S. 144.125(3). Consequently, after the 1993 amendment, the requirement that a disturbance be "severe" no longer existed.
The Oregon Court of Appeals has concluded that the version of O.R.S. 144.125(3) in effect at the time petitioner committed his crimes "does not require that a psychiatrist or psychologist recite the words `severe emotional disturbance' when diagnosing the prisoner, nor does 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, 959 P.2d 623 (1998), vacated as moot, 327 Or. 317 (1998); Merrill v. Johnson, 155 Or. App. 295, 964 P.2d 284,rev. denied, 328 Or. 40 (1998) (adopting reasoning inWeidner); Godleske v. Morrow, 161 Or. App. 523, 526, 984 P.2d 339 (1999).
Petitioner argues that Dr. Shellman's report, while supporting parole deferral under the 1993 version of ORS 144.125(3), does not support deferral under the version of the statute in effect at the time he committed his crimes. He maintains that Dr. Shellman's findings do not provide any evidence of a severe emotional disturbance as required by former ORS 144.125(3).
Dr. Shellman's report revealed that petitioner: (1) showed the presence of a personality disorder with elements of passive-dependency, narcissism and sociopathy; (2) had problems controlling his emotions; (3) experienced "cognitive slippage" and thinking errors; (4) was lacking in insight; (5) was experiencing seemingly random, disconnected patterns of thinking, and that there were "elements of impulsivity and inability to delay gratification of impulses. Poor judgment would be shown with little consideration of consequences for their actions;" (6) still posed a danger to the community and was in need of sex offender treatment. Respondent's Exhibit 102. These findings provide "some evidence" to support the Board's conclusion that petitioner suffered from a severe emotional disturbance which justified the deferral of his early release under the pre-1993 version of ORS 144.125(3). Accordingly, the state court decisions denying petitioner's due process claim are neither contrary to, nor unreasonable applications of, clearly established federal law.
CONCLUSION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#32) should be DENIED, and judgment should be entered DISMISSING this action with prejudice.SCHEDULING ORDER
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 ten (10) days from the date of service of a copy of this recommendation within which to file specific written 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 issue, 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.