Opinion
2:22-cv-00384-JR
09-27-2023
THOMAS NICHOLAS MERIWEATHER, Petitioner, v. ERIN REYES, Superintendent, Two Rivers Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Petitioner, an adult in custody at the Two Rivers Correctional Institution, brings this 28 U.S.C. § 2254 habeas corpus action as a self-represented litigant, challenging actions of the Oregon Board of Parole and Post-Prison Supervision (the “Board”). Currently before the Court are Petitioner's Petitioner for Writ of Habeas Corpus (ECF No. 1) and his “Motion for Leave to File Replication for Writ of Habeas Corpus” (ECF No. 21) by which he seeks leave to file an Amended Petition. For the reasons set forth below, both the Petition and the request for leave to amend should be DENIED.
BACKGROUND
Petitioner was convicted in Clackamas County Circuit Court in 1986 on several sex offenses and sentenced to a term of imprisonment not to exceed ten years, with a minimum of five years before eligible for parole. Respondent's Exhibit (“Resp. Exh.”) 101, ECF No. 30, pp. 3-5. In June 1987, the Board set an initial parole consideration date of March 1993, with a review scheduled for January 1993. Resp. Exh. 103, pp. 20-22. In January 1993, the Board ordered Petitioner's parole consideration deferred for 24 months to March 1995, and in March 1995, the Board deferred parole consideration for another 24 months, to March 1997. Resp. Exh. 103, pp. 40-41, 45-46. In April 1997, the Board once again deferred parole consideration for 24 months, to March 1999, and then again in February 1999, for another 24 months to March 2001, and in January 2001, another 24 months to March 2003. Resp. Exh. 103, pp. 50-51, 53-55. Ultimately, in March 2003, the Board ordered petitioner released to parole on March 27, 2003. Resp. Exh. 103, pp. 64-65.
Citations to Respondent's Exhibits refer to the page numbering in the lower right corner of the page cited.
In October 2006, the Board ordered that Petitioner's parole be revoked based on violations of the conditions of his supervision and requiring him to serve a further term of incarceration. Resp. Exh. 103, pp. 70-75. In March 2007, the Board conducted a future disposition hearing and imposed a “year and a day” of incarceration, setting Petitioner's rerelease date to October 4, 2007, when he was again released. Resp. Exh. 103, pp. 76-79.
In March 2008, the Board again revoked Petitioner's parole based on violations of the conditions of release. The Board held a future disposition hearing on May 14, 2008, and reset Petitioner's release date to December 19, 2010, “following 36 months” of incarceration. Resp. Exh. 103, pp. 96-99.
Petitioner was released in December 2010, and in July 2013 was charged with assault in the fourth degree against his then girlfriend. Resp. Exh. 107-115. Petitioner pleaded guilty to that charge and the court sentenced him to 180 days in jail. Resp. Exh. 101, pp. 6-8. In October 2013, as a result of the new conviction, the Board revoked Petitioner's parole and held a future disposition hearing in January 2014. Resp. Exh. 103, pp. 191-95. At the future disposition hearing, the Board sanctioned Petitioner with 120 months of imprisonment, and reset his parole release date to July 22, 2023, with a review scheduled for January 2023 with a current psychological evaluation. Resp. Exh. 103, pp. 196-99. The Board's decision was reflected in Board Action Form (“BAF”) #46. Id. Petitioner sought administrative review of that order, but the Board denied relief. Resp. Exh. 103, pp 200-202. Petitioner then sought judicial review of BAF #46, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Meriweather v. Board of Parole, 283 Or.App. 424, 388 P.3d 747, rev. denied, 361 Or. 800 (2017).
In August 2018, Petitioner requested an “interim hearing” from the Board. Resp. Exh. 103, pp. 203-205. In response, the Board issued BAF #48 on August 14, 2018, finding that Petitioner was not eligible for an interim hearing under Or. Admin. R. 255-062-0021(1). Petitioner sought administrative review of that ruling, but the Board denied his request for relief. Resp. Exh. 103, pp. 218-221. Petitioner sought judicial review of the order denying an interim hearing, but the Oregon Court of Appeals affirmed the Board's ruling with opinion, and the Oregon Supreme Court denied review. Meriweather v. Board of Parole, 310 Or.App. 382, rev. denied, 368 Or 511 (2021). The appellate judgment in that case issued on September 1, 2021. Resp. Exh. 116.
While Petitioner's judicial review from the 2018 decision denying an interim hearing was pending, the Board twice withdrew its Administrative Review Response related to BAF #48 and provided the Oregon Court of Appeals with replacement responses. Resp. Exhs. 105, 109. In each instance, Petitioner filed supplemental briefs addressing the replacement responses, which the Oregon Court of Appeals considered before it affirmed the Board without opinion. Resp. Exhs. 108, 111, 112.
On March 10, 2022, Petitioner filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 with this Court. Petitioner alleges that following his 2018 request for an interim hearing, the Board, on three separate occasions, issued new findings related to the Board's order in 2014. He sets forth five separate grounds for relief:
Ground One: The Board of Parole violated petitioner's Due Process and Equal Protection under the 5th and 14th amendment, Equal Privilege under Article I, Section 20 of the Oregon Constitution by failing to follow its own rules required by legislative enactment of ORS 144. 346(1)(2) (1989). The Board must follow its own rules. See, Oregon Laws 1989, Chapter 790, Section 18B. (1)(2).
Ground Two: The Board applied a new version of its rules to petitioner's Parole Revocation, increasing the allowable revocation term from 180 days to “up to” the remainder of the sentence, in violation of the Ex Post Facto Clause under Article I, Section 21 of the Oregon Constitution, and Article I, Section 10 of the U.S. Constitution.
Ground Three: The Board continues to enforce illegal provisions of law to Parole Revocation cases, in violation of Due Process and Equal Protection under the 5th and 14th amendment.
Ground Four: The Board of Parole violated petitioner's Due Process under the 5th and 14th amendments by applying arbitrary, capricious, and discriminatory revocation sanctions to petitioner's case and by failing to follow the requirements of ORS 144.232(4)(a), and OAR 255-75-079(4) (1989), specifically designated for those who were sentenced as a dangerous offender, such as petitioner.
Ground Five: The Board of Parole Denied petitioner his protected liberty interest established by state law and protected under the 14th Amendment. See ORS 144.346(1) (1989); ORS 144.232(4)(a)(b) (1989); OAR 255-75-079(1-6) (1989).
In his request for leave to file an amended petition, Petitioner's proposed amended petition restates the five grounds set forth in his original petition, and seeks to add the following, sixth ground for relief:
Ground Six: On March 10, 2022, petitioner filed a petition for federal writ of habeas corpus raising multiple grounds for relief. However, during these challenges the Oregon Board of Parole handed down an Order by of letter dated July 12, 2022, ordering him to participate in a psychological evaluation. There is no such authority for requiring a parole violator to participate in a psychological evaluation prior to being re-paroled. The Board's letter contains threats of retaliation if petitioner does not comply with the Board's order. The Board's order is without authority, in violation of the 5th and 14th amendment of the U.S. Constitution.
Respondent objects to Petitioner's request for leave to file an amended petition and contends that Petitioner is not entitled to habeas corpus relief on the claims alleged in his original petition.
DISCUSSION
I. Relief Under the Original Petition
Respondent contends that Petitioner is not entitled to the relief requested in his original petition because success on his claims pertaining to the 2018 Board decision denying an interim hearing would not necessarily lead to Petitioner's immediate release from confinement. Moreover, to the extent Petitioner's claims relate to the Board's 2014 ruling ordering Petitioner to serve 120 months of imprisonment on the 2013 parole violations, Respondent contends the petition is untimely.
A. The Board's 2018 Decision Denying an Interim Hearing
The core of Petitioner's claims rests on his disagreement with the Board's 2018 decision denying his request for an interim hearing. Under Oregon law, an inmate may request an interim hearing when the Board has previously granted a hearing that is more than two years from the date that parole is denied. Or. Rev. Stat. § 144.280(2). The Board shall grant an inmate's request for an interim hearing if the inmate shows “there is reasonable cause to believe that the prisoner may be granted parole.” Id. (emphasis supplied). Thus, if Petitioner were to prevail in this action, he would not be entitled to immediate release on parole; at most, the Board would be required to conduct an interim hearing to consider whether Petitioner has established a basis upon which to release him.
The Ninth Circuit held that if success on the merits of a habeas petitioner's claim would not necessarily lead to his immediate or earlier release from confinement, such claim does not fall within the “core of habeas corpus,” and his exclusive remedy lies under 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 930-31 (9th Cir. 2016) (en banc) (citing Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam); see also Woods v. Valenzuela, 734 Fed.Appx. 394, 395-96 (9th Cir. 2017) (where success on petitioner's claim would result in a new parole hearing at which parole authorities may, in their discretion, decline to shorten his prison term, claim was not cognizable in habeas because a favorable judgment would not necessarily result in earlier release) (citing Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)).
In the context of a challenge to the Board's denial of a request for an interim hearing under Or. Rev. Stat. § 144.280(2), at least one other court in this District found it lacked jurisdiction to consider the petitioner's claims because the relief sought, i.e., requiring the Board to conduct an interim hearing, would not result in the petitioner's immediate release on parole. See Gutierrez v. Cain, Case No. 2: 16-cv-02025-SB, 2019 WL 5198170, at *2 (D. Or. March 7, 2019), findings and recommendation adopted, 2019 WL 5197551 (D. Or. Oct. 14, 2019), certificate of appealability denied, 2020 WL 2188919 (9th Cir. 2020). As in Gutierrez, this Court lacks habeas jurisdiction over Petitioner's challenge to the Board's 2108 decision denying an interim hearing. Accordingly, the petition is denied.
As also noted in Gutierrez, the district judge here should not convert petitioner's habeas petition into a civil rights complaint because petitioner names his custodian as the sole respondent and his habeas petition does not include a prayer for relief. See Nettles, 830 F.3d 936 (explaining that court may recharacterize a habeas petition as a civil rights complaint if the petition names the correct defendants and seeks appropriate relief). Further, an automatic conversion would not provide petitioner the opportunity to consider the impact of seeking relief in a civil rights action, including the requirement that he pay the full filing fee of $350.00 when funds exist pursuant to 28 U.S.C. § 1915(b)(1), and his eligibility under 28 U.S.C. § 1915(g) for filing future in forma pauperis proceedings if the court were to dismiss his complaint for failure to state a claim. See Gutierrez, 2019 WL 5198170, at *2 n.2.
B. The Board's 2014 Decision Requiring Petitioner to Serve 120 Months Imprisonment
The basis upon which the Board denied Petitioner's request for an interim hearing was the Board's 2014 decision memorialized in BAF #46 ordering Petitioner to serve 120 months of imprisonment following the 2013 parole revocation. To the extent Petitioner seeks to challenge the underlying 2014 decision, this action is untimely.
Under 28 U.S.C. § 2244(d), a one-year statute of limitations applies to habeas petitions brought under 28 U.S.C. § 2254. The limitation period begins to run on the date the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The limitation period applies when a habeas petitioner is challenging an “administrative decision” such as a Board ruling. See Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (Section 2244's one-year limitations period applies to all habeas petitions filed by persons in custody pursuant to the judgment of a State court even if the petitioner challenges a pertinent administrative decision rather than a state court criminal judgment).
Here, Petitioner sought administrative review of the BAF #46 issued by the Board in 2014, and then pursued a petition for judicial review. That process concluded in 2017, when the Oregon Supreme Court denied review following the Oregon Court of Appeals' decision affirming the Board decision without opinion. Meriweather v. Board of Parole and Post-Prison Supervision, 283 Or.App. 424, 388 P.3d 747, rev. denied, 361 Or. 800 (2017). As noted, Petitioner filed his habeas petition in this action on March 10, 2022, well beyond the one-year limitations period. Accordingly, to the extent Petitioner challenges the Board's 2014 decision, his claims are dismissed as untimely, and he is not entitled to habeas corpus relief.II. Petitioner's Request to Amend
Petitioner appears to argue that the Board's withdrawal and re-issuance of its Administrative Review Responses in December 2019 and July 2020 somehow “revive” his claims pertaining to the Board's 2014 BAF #46. Those Administrative Review Responses, however, pertained not to the Board's 2014 BAF #46, but instead to the Board's 2018 BAF #48 denying petitioner's request for an interim hearing. Petitioner does not provide, and this Court could not locate, any authority for the argument that revision of an Administrative Review Response to a separate, subsequent Board action may revive claims against prior Board action.
As noted, Petitioner seeks leave to amend his petition to add a claim challenging a 2022 Board order requiring Petitioner to participate in a psychological evaluation. An application for a writ of habeas corpus “may be amended or supplemented as provided in the rules of civil procedure applicable to civil actions.” 28 U.S.C. § 2242. Under Federal Rules of Civil Procedure 15(a), a habeas petitioner may amend his pleadings once as a matter of course under circumstances not extant in this case, and otherwise may do so with leave of the court. Fed.R.Civ.P. 15(a); Mayle v. Felix, 545 U.S. 644, 648 (2005). Under Rule 15(a)(2), “[t]he court should freely give leave when justice so requires.” However, a district court may deny leave to amend when amendment would be futile. Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); Young v. Pfeiffer, Case No. 1: 18-cv-01339-DAD-JDP, 2020 WL 916723, at *5 (E.D. Cal. Feb. 26, 2020).
Like the claims alleged in the original petition challenging the Board's 2018 decision denying an interim hearing, Petitioner's attempt to challenge a board order requiring him to submit to a psychological examination does not fall within the core of habeas corpus because success on the merits of this claim would not result in petitioner's release. As such, this Court lacks jurisdiction to consider such a claim, and allowing the amendment would be futile. Accordingly, petitioner's Motion for Leave to File Replication for Writ of Habeas Corpus (ECF No. 21) is denied.
CONCLUSION
For the reasons stated above, Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1) and Motion for Leave to File Replication for Writ of Habeas Corpus (ECF No. 21) should be denied. The Court should enter a judgment dismissing this action and denying a certificate of appealability. 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 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 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.