Opinion
Civil No. 02-1620-AS.
July 13, 2004
BARBARA L. CREEL, Assistant Federal Public Defender, Portland, OR, Attorney for Petitioner.
HARDY MYERS, Attorney General, LESTER R. HUNTSINGER, Senior Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, an inmate at the Eastern Oregon Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Currently before the court is the Petition for Writ of Habeas Corpus (#2). For the reasons that follow, the Petition should be DENIED, and this action should be DISMISSED.
BACKGROUND
In July 1981, Petitioner was placed on probation for the Unlawful Manufacture of a Controlled Substance. In June 1989, Petitioner's probation was revoked, and he was sentenced to 20 years in prison, with a 30-month minimum. Also in June 1989, Petitioner was sentenced to an additional 20 years of imprisonment, with a 10-year minimum, on a conviction of Robbery in the First Degree. In December 1989, he was sentenced to another 20-year term, with a 10-year minimum, on a second Robbery in the First Degree conviction.
At the time of Petitioner's offenses, applicable parole statutes and rules required the Oregon Board of Parole and Post-Prison Supervision (the "Board") to conduct a hearing to set an initial parole release date. On January 30, 1991, the Board conducted an initial parole hearing, established a matrix range of 96 to 126 months, and set Petitioner's projected release date in June 1996.
On November 18, 1997, the Board deferred Petitioner's release date for 24 months after a psychological evaluation. The Board Action Form ("BAF") #10 stated:
Petitioner's release date had previously been deferred for 24 months in 1996. The legality of the 1996 deferral is currently before this court in Birch v. Thompson, CV 02-415-AS. At the time of the 1996 and 1997 Board decisions, Petitioner was serving the 1981 drug sentence. The good time date on that offense was reached in May 2002, and he is now serving the first 1989 robbery sentence.
The Board has received a psychological evaluation on inmate dated 10/03/1997.
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 severe emotional disturbance such as to constitute 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 commitment offense(s).
The Board defers release date for 24 months for a projected parole release date of 06/24/2000, for a total of 144 months. A review will be scheduled in 12/1999 with a current psychological evaluation.
Resp. Exh. 102, p. 2.
Petitioner sought administrative review of the November 18, 1997, order, which the Board denied on March 30, 1998. On January 25, 2000, Petitioner filed a petition for writ of habeas corpus in state court. In his Replication, Petitioner argued the Board violated ex post facto principles by applying statutes and rules not in effect at the time of his crimes to defer his parole release date. The state habeas trial judge granted the respondent's motion to dismiss. The Oregon Court of Appeals affirmed without opinion. Birch v. Lampert, 177 Or. App. 225, 34 P.3d 1216 (2001). The Oregon Supreme Court reversed solely on the imposition of fees for court-appointed counsel compensation and affirmed on the merits. Birch v. Thompson, 334 Or. 75, 45 P.2d 449 (2002).
On November 29, 2002, Petitioner filed this action. He alleges three grounds for relief: (1) the Board committed an ex post facto violation by applying statutes and rules not in effect at the time of the crime; (2) the failure to grant parole on the initial release date constituted cruel and unusual punishment due to physical and mental anguish and "loss wages" because early release was not granted; and (3) a due process claim challenging the Board's use of psychiatric reports to cover up "illegal conditions" in the deferral order. Respondent argues Petitioner is not entitled to relief because the state court decision denying relief was neither contrary to nor an unreasonable application of clearly established federal law.
Respondent initially argued this action was not timely filed under 28 U.S.C. § 2244, but subsequently withdrew the argument.
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); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A "decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. at 340 (citation omitted).
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)), rev. denied, 124 S.Ct. 2105 (2004). 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").
DISCUSSION
I. Unaddressed Claims — Cruel and Unusual Punishment and Due ProcessIn his memorandum in support of the petition, Petitioner does not address his cruel and unusual punishment or due process claims. Although he does not expressly waive these grounds for relief, he does not present any legal argument in their support. Because it appears on the face of the petition that Petitioner cannot succeed on these claims, Petitioner is not entitled to relief. 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. Ex Post Facto Violation
At the time Petitioner committed his crimes in 1981, 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).
Throughout the memorandum in support of the petition, Petitioner argues his crimes were committed in 1989. Upon a careful review of the record, however, at the time of the November 1997 Board decision, Petitioner was still serving his sentence for the 1981 conviction, not the 1989 convictions. Accordingly, the court considers petitioner's ex post facto claim in the context of the laws and rules in existence in 1981.
In 1993, 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.
A. 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 crime in 1981. Under the 1981 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 1996, Petitioner concludes the Board necessarily applied the 1993 standards.
Petitioner is incorrect. 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 1981 version of § 144.125(3) 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, 959 P.2d 623 (1998), withdrawn by order July 13, 1998, reasoning reaffirmed and readopted in Merrill v. Johnson, 155 Or. App. 295 (construing 1991 version of law), rev. denied, 328 Or. 40 (1998); see also Godleske v. Morrow, 161 Or. App. 523, 526 (1999) (stating that the 1981 version is identical to the 1991 version, and applying Weidner with equal force), rev. denied, 330 Or. 553, 10 P.3d 943 (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 1996.
B. Reinterpretation of 1981 Standards
Even if the Board applied the 1981 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 1981 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 1981 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 inGarner, 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 (D. Or. Sept. 24, 2003), the Honorable Anna J. Brown of this court 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, Judge Brown 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, Judge Brown 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. Judge Brown reached the same conclusion in Hess v. Lampert, CV 02-85-BR (D. Or. Feb. 18, 2004).
I reach 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 1997 decision did not increase the punishment for Petitioner's crime or alter the standards for determining parole eligibility after the commission of Petitioner's crime in 1981. Accordingly, Petitioner is not entitled to relief on his ex post facto claim, and the petition for writ of habeas corpus should be DENIED.
RECOMMENDATION
Based on the foregoing, I recommend that the Petition for Writ of Habeas Corpus (#2) be DENIED, and that a judgment of DISMISSAL should be entered.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due July 30, 2004. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.If objections are filed, the response is due no later than August 13, 2004. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.