Opinion
Case No. 6:18-cv-00931-SB
03-24-2020
TIMOTHY DANIEL FINLEY, Petitioner, v. GARRETT LANEY, Superintendent, Oregon State Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Petitioner Timothy Daniel Finley ("Finley"), an individual in custody at the Oregon State Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging a 2014 decision by the Oregon Board of Parole and Post-Prison Supervision ("Board"). For the reasons set forth below, the district judge should deny Finley's Habeas Petition (ECF No. 1), deny a certificate of appealability, and dismiss this proceeding with prejudice. /// /// ///
BACKGROUND
On February 23, 1982, a jury convicted Finley of felony murder, manslaughter in the first degree, robbery in the first degree, and kidnapping in the second degree. Resp't Ex. 101 at 91. Finley committed the offenses on August 29, 1981. Resp't Ex. 102 at 3. Finley's manslaughter and robbery convictions merged with his felony murder conviction, and the trial court imposed a life sentence, with the possibility of parole in ten years. Resp't Ex. 101 at 91-92. The trial court imposed a consecutive ten-year sentence for kidnapping. Id. at 92.
Finley was convicted of additional offenses he committed both before and after his incarceration. See Resp't Ex. 102 at 3.
On March 17, 2010, the Board issued an order establishing the following dates with respect to Finley's impending release on parole: (1) a parole "physical release" date of March 20, 2010, (2) a tentative parole discharge ("TPD") date of March 19, 2011 (the tentative date active supervision would end), and (3) a sentence expiration date of August 24, 2039. Id. at 93-95.
Finley was released on parole on March 20, 2010, and subsequently moved to Kansas where he was supervised pursuant to an interstate compact agreement. Id. at 93; Resp't Ex. 104 at 98. On May 25, 2010, the Board issued Board Action Form ("BAF") 14 correcting Finley's TPD date to March 19, 2014, explaining that it had inadvertently determined Finley's TPD date based on rules that came into effect after the date he committed his offenses. The Board explained that under the rules in effect in August 1981, Finley was required to serve four years of active parole supervision, followed by five years of inactive supervision:
The Board, on its own motion, has administratively reviewed offender's tentative parole discharge (TPD) date of March 19, 2011, as established in the Board's Order of Supervision issued March 17, 2010. In the course of this review, the Board discovered that it inadvertently applied OAR 255-90-015 (temporary effective 11/03/1981; permanent effective 5/19/1982),
when it should have been applying OAR 255-90-010 (permanent effective 02/05/1981), which was in effect on the crime commitment date (August 29, 1981) . . . . Under the administrative rules that dictate the length of parole supervision and the conditions of eligibility for parole discharge . . . offender must serve four years of active supervision, plus five years inactive supervision, subject to change if there are violations of his supervised conditions. Therefore, the Board establishes a new tentative parole discharge date of March 19, 2014. At that time, the Board may discharge offender from parole upon a positive recommendation from his supervising officer.Resp't Ex. 103 at 4 (BAF 14). The Board advised Finley that he would not be discharged from parole until it issued a certificate of discharge. Id.
As set forth in Finley's state appellate brief, pursuant to OR. ADMIN. R. 255-90-005 (permanent effective 2/15/81) and Exhibit H-1 thereto, "an inmate such as [Finley], with a criminal history/risk assessment score of 8, and crime category of 7, subcategory 1, shall serve four years of supervised parole." Resp't Ex. 112 at 7; see also Resp't Ex. 114 at 33-38 (Board discharge rules effective 2/15/81).
On March 26, 2013, Finley was arrested in Kansas for violating the conditions of his parole. Resp't Ex. 104 at 97-98. On October 30, 2013, Kansas transported Finley back to Oregon. Id. at 98. Finley waived a revocation hearing and thereby acknowledged he violated one or more conditions of his parole. Id. at 94-95. On November 8, 2013, the Board revoked Finley's parole. Id. at 131-32. The Board held a future disposition hearing and subsequently issued BAF 20, denying Finley's re-release on parole and setting a projected parole release date of October 29, 2015. Id. at 175.
Finley sought administrative review of BAFs 14 and 20. Id. at 177-89. The Board responded with Administrative Review Response (ARR) 6, holding that Finley's request for review of BAF 14 was untimely and concluding that BAF 20 was supported by substantial evidence. Id. at 191-94. As to the latter conclusion, the Board stated:
On November 6, 2013 you waived your right to [a] formal Morrissey hearing with a Hearings Officer (HO). Pursuant to OAR 255-075-0026(2), 'the waiver of the right to a hearing acknowledges that the offender violated the conditions in whole or in part.' The HO concluded that you had violated the terms of your parole by 1) consuming illegal controlled substances, 2) failing to report to your Parole Officer (PO), and 3) changing your address without your PO's approval. She noted that a urinalysis test was positive for the presence of methamphetamine and marijuana. You admitted to the HO that you had relapsed into drug use, failed to report to your PO and changed [your] address without his permission.Id. at 191, 193.
. . . .
[T]he Board, by a unanimous vote, determined that an aggravating factor applied to your conduct. The Board found . . . that the aggravating factor of, 'repetition of type of conduct associated with commitment offense or past conditions' applied to you. The Board found that your relapse into drug use qualified you for this aggravated factor since you had consumed marijuana before you participated in the victim's murder. As a result, the Board unanimously concluded that you be recommitted to prison for a period of 24 months. Thus, the Board's decision to recommit you to prison for 24 months was supported by substantial evidence and comported with the Board's rules in effect at the time of the commission of the murder.
Finley sought judicial review of BAF 14, BAF 20, and ARR 6, raising the following assignments of error: (1) the Board erred in applying an administrative rule that had been superseded by statute to change his TPD date from March 19, 2011 to March 19, 2014, (2) the Board lacked jurisdiction to conduct a future disposition hearing, deny him re-release on parole, and set a tentative parole release date of October 29, 2015, because his parole had already expired as a matter of law, and (3) the Board violated his right to due process by applying "rules that had been superseded by statute." Resp't Ex. 112 at 12-13, 15, 28-29. Finley filed a pro se supplemental brief, arguing that the Board violated his right to due process by extending his TPD date on its own motion without a hearing. Resp't Ex. 113 at 4-5.
Finley filed a second appeal challenging BAF 14 and ARR 6. Resp't Ex. 103. That appeal was consolidated with his appeal challenging BAF 20 and ARR 6. See Resp't Ex. 111.
With respect to Finley's first assignment of error, Finley argued that the Board erred by relying on OR. ADMIN. R. 255-90-005 (permanent effective 2/15/81) to postpone his TPD date because the rule was superseded by OR. REV. STAT. § 144.310 (1981), limiting his maximum term of active supervision to six months. Finley reasoned:
OR. REV. STAT. § 144.310(2) (1981) provided that "[a] paroled prisoner shall be subject to active parole supervision during the first six months of the period of parole. The board may require a more extended period of active supervision if, in a manner provided by rule, it finds that a six-month period of supervision is incompatible with the welfare of the parolee or of society." Resp't Ex. 114 at 39.
OAR 255-90-005 (permanent effective 2/15/81), allowed the board to set an inmate's tentative parole discharge (TPD) date for a person in petitioner's position as four years active supervision followed by five years inactive supervision. However, in July 1981, the legislature amended the statute that provided the board with authority to set TPD dates and determined that the term of active supervision must be at least six months. The legislature further granted the board authority to adopt rules that allow for the extension of that term in certain circumstances. The board did not adopt new rules until November 1981. Here, petitioner's crime commission date is August 29, 1981, thus, the board was limited to placing petitioner on parole for six months. The board erred in applying the out-of-date rule that had been superseded by statute and in placing petitioner on supervision for four years.Resp't Ex. 112 at 9. Finley argued that his parole therefore terminated as a matter of law after six months. Id. at 21.
Finley acknowledged that the Oregon Court of Appeals held in Haskins v. Palmateer, 186 Or. App. 159, 165-66 (2003), that parole does not terminate as a matter of law on a parolee's TPD date and concluded instead that the Board must affirmatively discharge a parolee by issuing a certificate of discharge. --------
The Board responded to Finley's assignments of error, arguing that (1) OR. REV. STAT. § 144.310 did not expressly invalidate the administrative rules under which the Board set Finley's TPD date and did not expressly or impliedly limit the Board's authority to set a longer period of supervision, (2) even if OR. REV. STAT. § 144.310 superseded the relevant administrative rules, the Board did not formally discharge Finley from active or inactive supervision and therefore retained jurisdiction to revoke his parole, (3) Finley does not have a protected liberty interest in a TPD date or to be discharged from parole before his sentence completion date, and (4) any error in correcting Finley's TPD was harmless because the Board never discharged him from parole. Resp't Ex. 114 at 6-7, 12-30.
The Oregon Court of Appeals affirmed the Board's decision without opinion and the Oregon Supreme Court denied review. Finley v. Bd. of Parole and Post-Prison Superv., 287 Or. App. 887 (2017), rev. denied, 362 Or. 545 (2018).
STANDARDS
Pursuant to 28 U.S.C. § 2254(d), a district court shall not grant a petition for writ of habeas corpus filed by a state prisoner, with respect to any claim that was adjudicated on the merits in state court, unless the adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Harrington v. Richter, 562 U.S. 86, 100 (2011). A state court unreasonably applies clearly established federal law if its decision is so lacking in justification that there is an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement. Id.; Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014). Respondent acknowledges that there is no reasoned state court decision for this Court to review, and therefore the Court conducts an independent review of the record to determine whether the state court's decision was objectively unreasonable. Resp't Resp. (ECF No. 21) at 7; see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (explaining that an independent review of the record is not de novo review, but rather the "only method by which [the court] can determine whether a silent state court decision is objectively unreasonable").
DISCUSSION
Finley alleges that the Board violated his right to due process by extending his TPD date from March 19, 2011 to March 19, 2014, without notice and a hearing. Habeas Pet. at 4. In his supporting brief, Finley argues that the Board (1) arbitrarily applied the wrong rule when calculating his TPD date, and (2) failed to hold a hearing before depriving him of a vested liberty interest in his original TPD date of March 19, 2011. Pet'r's Br. in Supp. (ECF No. 30) at 7-9.
I. Arbitrary Application of State Law
It is well settled that "it is not the province of a federal habeas court to reexamine state court determinations on state law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that habeas review is limited to determining whether a conviction violates the constitution, laws, or treaties of the United States); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (holding that a state court's interpretation of state law is binding in a habeas corpus proceeding). Further, a petitioner may not transform a state law issue into a federal one merely by asserting a violation of due process. Langford v. Day, 110 F.3d 1380, 1399 (9th Cir. 1996).
However, a state court's misapplication of state sentencing law may violate due process if the petitioner demonstrates that the error was so arbitrary or capricious as to constitute an independent due process violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992) (holding that the federal constitutional question is whether the state court's reliance on state law was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation); Hubbard v. Knapp, 379 F.3d 773, 779 (9th Cir. 2005) (holding that a habeas court may not second guess a state court's construction of state law unless it appears to be an obvious subterfuge to avoid a federal constitutional issue).
Finley has failed to demonstrate that the Board's action was so arbitrary or capricious as to constitute a due process violation. The 1981 amendment to OR. REV. STAT. § 144.310 prohibited the Board from issuing a certificate of discharge to a parolee less than six months after the date of his release on parole. The statute did not expressly or impliedly limit the Board's authority to set longer periods of supervision. See OR. REV. STAT. § 144.310(2) (1981) (providing that the Board may extend supervision beyond six months if the minimum period is incompatible with the welfare of the parolee or society). Thus, Finley has failed to demonstrate that the Board's action in postponing his TPD date was an arbitrary or capricious application of state law. Accordingly, this Court concludes based on an independent review of the record that the state court's rejection of Finley's due process claim is neither contrary to, nor an unreasonable application of, clearly established federal law.
II. Failure to Hold a Hearing
Finley also argues that "[a]t a minimum, under established principles of federal due process, the Board was required to hold a hearing before it extended his parole discharge date." Pet'r's Br. in Supp. at 9. In this regard, Finley argues that he had a protected liberty interest in his original TPD date. ///
Finley does not have a protected liberty interest in his original TPD date because (1) under Oregon law a parolee remains on parole until the Board expressly discharges him (regardless of his TPD date) (see Haskins, 186 Or. App. at 164), and (2) the extension of a TPD date does not impact a parolee's sentence expiration date. As such, the Board's correction of Finley's TPD date without a hearing did not violate the Due Process Clause. See Cleveland v. Bd. of Parole and Post-Prison Supervision, No. 3:09-00563-MO, 2010 WL 5069862, at *3 (D. Or. Dec. 7, 2010) (holding that the extension of a parolee's TPD date without a hearing did not violate due process). Accordingly, the Court concludes based on an independent review of the record that the state court's rejection of Finley's due process claim is neither contrary to, nor an unreasonable application of, clearly established federal law.
CONCLUSION
Based on the foregoing, the district judge should DENY Finley's Habeas Petition (ECF No. 1) and DISMISS this proceeding with prejudice. Additionally, the district court should DENY a certificate of appealability because Finley has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. /// /// /// ///
If objections are filed, then a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 24th day of March, 2020.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge