Opinion
CV 00-300-BR
January 26, 2001
RICHARD O. BURGESS, #3577269, Snake River Correctional Institution, Ontario, Oregon 97914-0595 Pro Se Petitioner.
HARDY MYERS Attorney General. DAVID LYNN LARSEN Assistant Attorney General Department of Justice Salem, Oregon 97310, Attorneys for Respondent
OPINION AND ORDER
Petitioner, an inmate at the Snake River Correctional Institution, brings this action pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the legality of a 1994 conviction in Multnomah County Circuit Court for Escape in the Second Degree. For the following reasons, the Petition for Writ of Habeas Corpus (#2) is DENIED, and Petitioner is ordered to inform the Court whether he sought judicial review of the March 18, 1998, decision not to release him on parole.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
On July 26, 1988, Petitioner was convicted by a jury on a charge of Robbery in the First Degree (Robbery conviction) and sentenced to a term of imprisonment not to exceed 20 years. On August 24, 1988, Petitioner was found guilty of Failure to Appear in the First Degree (FTA conviction) and was sentenced to a term of imprisonment not to exceed five years, consecutive to the sentence on the Robbery conviction.
On April 22, 1992, while serving his sentences on the Robbery and FTA convictions, Petitioner escaped from the Columbia River Correctional Institution in Multnomah County, Oregon. On February 10, 1994, Petitioner was convicted by a jury on a charge of Escape in the Second Degree (Escape conviction). He was sentenced to 22 months of imprisonment and 24 months of post-prison supervision.
On April 20, 1995, the State of Oregon released Petitioner from custody subject to the supervision of the Oregon Board of Parole and Post-Conviction Supervision (Board). Petitioner began serving the post-prison supervision term for the Escape conviction and, although the record is not entirely clear, the Court assumes Petitioner also was "paroled" on his Robbery and Failure to Appear convictions.
In the period prior to his release from custody, Petitioner filed a direct appeal from the Escape conviction; however, on June 20, 1995, while the direct appeal was pending, a warrant was issued for Petitioner's arrest on the basis that he had absconded from supervision. The Oregon Court of Appeals subsequently dismissed Petitioner's direct appeal in accordance with O.R.A.P. 8.05(3) on the ground that Petitioner absconded from parole and post-prison supervision. State v. Burgess, CA A83321, August 18, 1995. Petitioner did not seek review of the dismissal of his appeal from the Oregon Supreme Court.
Petitioner was returned to custody on March 14, 1996; was again released; and again absconded supervision. On August 23, 1996, another warrant was issued for Petitioner's arrest. Petitioner was arrested on May 8, 1997, in Montana and was extradited to Oregon. Petitioner has remained in state custody since that date.
Following several hearings and administrative reviews of Petitioner's status that are alluded to but not detailed in the record before this Court, the Board issued an Administrative Review Response on March 18, 1998, in which it affirmed the revocation of Petitioner's parole and also issued a decision to set a new projected release date of January 28, 2008. The Board stated in pertinent part:
Finally, [Petitioner] alleges that the Board did not have the authority to sanction him for nine years. He states that since his was a technical violation, the most the Board can sanction him to was 90 days. This is incorrect. Because [Petitioner] was on parole, the law in effect at the time he committed his crime allowed the Board the option of denying his re-release on parole if it felt this was appropriate. The Board needed to have a majority vote of its members to deny [Petitioner's] re-release on parole. The Board voted unanimously to deny his re-release, and this was based on the Board finding that the following aggravating factors applied to [Petitioner's] case. One, there was a repetition of the type of conduct associated with the commitment offense or past conditions which was a return to involvement in the same type of criminal activity. [Petitioner] was arrested on local charges as well as the Board's warrant. Two, [Petitioner] had a prior parole revocation. Finally, [Petitioner] had been on parole for less than three months before he violated the conditions of his parole. The Board concluded that considering all of this evidence, [Petitioner] could not be adequately controlled in the community.
Following his return to custody, Petitioner filed a state post-conviction proceeding to challenge the legality of the Escape conviction. The post-conviction trial court denied relief. The Oregon Court of Appeals affirmed the denial of state post-conviction relief without opinion, and the Oregon Supreme Court denied review. Burgess v. Baldwin, 161 Or. App. 667, 984 P.2d 959, rev. denied, 329 Or. 357, 994 P.2d 124 (1999).
Petitioner filed this action on February 28, 2000. In his Petition, he alleges the following grounds for relief:
Ground One — Petitioner was never lawfully arraigned in violation of his rights under the Fourteenth Amendment.
Ground Two — Petitioner was denied his rights to due process and equal protection when he was prohibited from demurring and moving "to set aside the defective and unconstitutional accusatory instrument (sic) charging the crime of Escape in the Second Degree."
Ground Three — Petitioner was denied his rights to assistance of pre-trial and trial counsel under the Sixth and Fourteenth Amendments.
Ground Four — Petitioner was tried upon a set of facts other than those alleged in the Grand Jury Indictment; thus, his constitutional rights were violated, including those provided under the Fourteenth Amendment.
Ground Five — Petitioner "was denied his Constitutional right to confront and cross examine his accusor(s) (sic), particularly as named in the alleged Grand Jury Indictment."
Ground Six — The State of Oregon denied Petitioner his rights to due process and equal protection by denying him a direct appeal to the Oregon Court of Appeals and the Oregon Supreme Court.
Ground Seven — The State of Oregon denied Petitioner "Constitutional or statutorily created right to seek habeas corpus and/or post conviction relief on numerous claims and issues, with the reasonable expectation of obtaining truthful and lawful relief on the claims that were raised."
Ground Eight — In his direct appeal and his post-Conviction relief cases, Petitioner was denied "the due process and equal protection of the law right to a proper and truthful transcript record of the pre-trial and trial proceedings for purposes of obtaining redress of grievances regarding numerous trial errors and Constitutional (sic) violations occurring (sic) in said criminal trial matters."
Ground Nine — Petitioner "has been unlawfully and unconstitutionally seized into the State of Oregon and directly subjected to the jurisdiction and punishments of the Oregon Department of Corrections without benefit of any prior arraignment, trial, lawful hearing or appealable Judgment Order issued thereon, said act occurring (sic) on or about April 28, 1997 to May 8, 1997, and for the purpose of forcefully and unlawfully requiring him to assume the identity of the person named or alleged in direct conflict with the Constitution and laws of these United States of America, including under paragraph one of the Federal Fourteenth Amendment."
Ground Ten — "In regards to the Direct Appeal and the Post Conviction Proceedings:
A.) The merits of the factual dispute(s) were never resolved in either of the aforecited (sic) State Court proceedings.
B.) The fact finding procedure(s) employed by the State was not adequate to afford a full and fair hearing, including regarding the dismissal of the direct appeal by use of O.R.A.P. 8.05(3).
C.) The material facts were not adequately developed at, and during, the State Court hearing(s).
D.) The State Court lacked lawful personal jurisdiction of the Petitioner, particularly in the State Post Conviction Proceedings.
E.) The Appellant in case number A83321 [direct appeal], and Petitioner in case number CV97-0809 [post conviction relief proceedings], did not receive a full, fair and adequate hearing in the State Court proceedings.
F.) Both Appellant and Post Conviction Petitioner were denied due process and equal protection of the law(s) under the Fifth and Fourteenth Articles in Amendment to the United States Constitution."
Grounds One Through Ten — "The alleged Defendant in Multnomah County case number C92-05-32594, the Appellant in Court of Appeals case number A83321 and the Post Conviction Petitioner in case number CV97-0809 were each denied, and are being deprived of, those Constitutional rights and privileges set out under Article 1, section 10; Article IV, sections 1, 2, and 4; and the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendment of the United States Constitution, and as a consequence nullifying or voiding the Final Order(s) and Judgments(s) entered therein, and in any other case or cases directly related thereto."
DISCUSSION
I. The Escape Conviction
This Court has subject matter jurisdiction over those persons "in custody pursuant to the judgment of a State." 28 U.S.C. § 2254(a). See also 28 U.S.C. § 2241(c)(3). Federal habeas corpus law permits prisoners to challenge the validity of those convictions for which they are in custody. Garlotte v. Fordice, 115 S.Ct. 1948, 1951 (1995). See also Feldman v. Perrill, 902 F.2d 1445, 1446 (9th Cir. 1990); Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994). The custody requirement must be met at the time the petition is filed. "[A]n expired conviction can never satisfy the `in custody' requirement, even though it may possibly be used to enhance a subsequent sentence, and even if this possibility `actually materialized.'" Feldman, 902 F.2d at 1448 (quoting Maleng v. Cook, 490 U.S. 488, 492 (1989)). See also Brock, 31 F.3d at 889.
Respondent submitted Affidavits of Michael R. Washington that assert Petitioner no longer is in custody on his Escape conviction because he completed service of his 22-month sentence and his 24-month term of post-prison supervision on September 27, 1998, before this Petition was filed. Petitioner disputes this conclusion, but provides no evidence to the contrary. This Court, therefore, lacks subject matter jurisdiction to the extent Petitioner claims he is "in custody" on his conviction for Escape in the Second Degree.
In his Answer, Respondent also contends Petitioner "procedurally defaulted on certain issues by his failure to timely pursue to completion all of his available remedies." Respondent, however, does not specify the issues on which Petitioner may have procedurally defaulted and does not discuss this argument in his Response to Habeas Corpus Petition. Accordingly, the Court need not consider these defenses.
II. Petitioner's Continued Confinement
The fact that Petitioner no longer is in custody on the Escape conviction does not end the Court's inquiry. If a petitioner currently is confined pursuant to a separate conviction, the court must liberally construe the petition as challenging the petitioner's current confinement as enhanced by the conviction claimed to be illegal. Maleng, 490 U.S. at 493. See also Brock, 31 F.3d at 890; Feldman, 902 F.2d at 1448. Here Petitioner currently is confined pursuant to the Board's March 18, 1998, decision not to release him on parole again on the Robbery and FTA convictions. Although not a model of clarity, Petitioner's submissions to this Court may be liberally construed as alleging the Board decision was based in part on the prior Escape conviction. In the absence of the allegedly unconstitutional Escape conviction, Petitioner argues the Board would have ordered his release on parole prior to the current estimated full-term date of January 28, 2008.
Having determined the Petition must be so construed, this Court must decide whether Petitioner has adequately exhausted his state court remedies before the Court addresses the merits
of Petitioner's claims. Brock, 31 F.3d at 891 n. 7 (citing [former] 28 U.S.C. § 2254(b)). See also Rose v. Lundy, 455 U.S.509, 522 (1982). A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Picard v. Connor, 404 U.S. 270, 275 (1971).
The March 18, 1998, Administrative Review Response that upheld the Board's decision not to release Petitioner again on parole informed Petitioner:
You may petition the Court of Appeals for judicial review of this order within 60 days of the mailing date of this order, per O.R.S. 144.335.
There is no indication on the record currently before this Court, however, whether Petitioner sought judicial review. This Court, therefore, cannot determine whether Petitioner exhausted his available state remedies as to the Board's decision. Accordingly, Petitioner must inform the Court whether he sought judicial review of the Board's order in state court and, if so, the grounds alleged and the outcome.
CONCLUSION
Based on the foregoing, IT IS ORDERED:
1.To the extent the pending Petition for Writ of Habeas Corpus is construed as challenging the legality of Petitioner's Escape conviction, the Petition is DENIED because Petitioner no longer is in custody on that conviction and the Court lacks subject matter jurisdiction.
2. To the extent the Petition is construed as challenging the legality of Petitioner's continued confinement on the Robbery and FTA convictions because the Escape conviction affected the Board's March 18, 1998, decision not to release Petitioner on parole, Petitioner shall inform the Court in writing no later than February 1, 2001, whether he sought judicial review of the Board's order in state court and, if so, the grounds alleged and the outcome. Petitioner is advised this action shall be dismissed if he fails to provide the required information by February 1, 2001. The Court will set a further briefing schedule after February 1, 2001, for any response by Respondent to Petitioner's filings submitted in compliance with this Opinion and Order.