Opinion
3:11-cv-00394-AC
04-20-2012
MICHAEL MORRIS, Petitioner, v. JEFF PREMO, Superintendent of Oregon State Penitentiary, Respondent.
FINDINGS AND RECOMMENDATION :
Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) should be DENIED.
BACKGROUND
On February 15, 1999, a Linn County, Oregon, jury found Petitioner guilty of murder. (Ex. 101 at 11.) The trial judge sentenced Petitioner to thirteen years of imprisonment and a life term of post-prison supervision. (Ex. 101 at 12.) During the investigation of Petitioner's crime, police found pornographic photographs and films, taken by Petitioner, of his murder victim and of other, unidentified women. (Ex. 104 at 9.)
Citations "Ex." refer to indicated sections and pages in the exhibits to the answer filed on September 6, 2011. (Docket # 18.)
In September 2004, the Oregon Board of Parole and Post-Prison Supervision (the "Board") released Petitioner early from prison to begin his term of post-prison supervision. (Ex. 103 at 22.) The Board imposed conditions of release, violation of which could result in further incarceration at the discretion of the Board. (Ex. 103 at 22.) As one of the special conditions of release to post-prison supervision, Petitioner was subject to sanction if he possessed "printed, photographed, or recorded materials" that he could "use for the purpose of deviant sexual arousal." (Ex. 103 at 22.)
In December 2005, the Linn County Sheriff's Department discovered child pornography on Petitioner's personal computer. (Ex. 103 at 29-30.) Petitioner was arrested on charges he violated the general condition of his release - that he "obey all laws, municipal, county, state and federal." (Ex. 103 at 24.) On April 21, 2006, Petitioner was convicted in Linn County on a no contest plea to two counts of encouraging child sexual abuse. The trial judge sentenced Petitioner to 136 months of imprisonment on the new conviction. (Ex. 101 at 3-6.)
On December 25, 2005, Petitioner received notice from the Board of his rights to appear, present evidence, and examine witnesses on his own behalf or with the aid of an attorney at a hearing for the determination of whether his conviction for downloading pornography had violated the terms of his post-prison supervision. (Ex. 103 at 26.) Petitioner executed a written waiver of his right to attend the hearing, did not contest the alleged violations, and consented to the modification of his release conditions or additional sanctions as recommended by the hearings officer. (Ex. 103 at 30.) The hearings officer found Petitioner violated the terms of his release, and recommended that the Board revoke Petitioner's future post-prison supervision and recommit him to jail for the maximum sanction of thirty-five days. (Ex. 103 at 30.) On January 6, 2006, the Board approved this recommendation, revoked Petitioner's release, and ordered his return to custody three days later. (Ex. 103 at 32, 35.)
On August 2, 2006, the Board conducted a Future Disposition Hearing to decide whether to deny Petitioner's re-release under post-prison supervision or to defer Petitioner's release to a later date. (Ex. 103 at 35, 47.) Petitioner appeared at the hearing by video conference. (Ex. 103 at 47.) At the conclusion, the Board denied immediate release, extended Petitioner's term of imprisonment to twenty years, and established a new release date of December 7, 2025. (Ex. 103 at 68, 73.) In announcing their decision, the Board cited their finding that Petitioner's possession of pornography was an aggravating factor because the conduct violated a specific condition of his past release to post-prison supervision. (Ex. 103 at 68.) The Board issued the following written findings:
Pursuant to the laws and rules in effect at the time of the commitment offense(s) and citing aggravating factor(s): repetition of type of conduct associated with commitment offense or past conditions (possession of pornography which violates a condition of post-prison supervision). The Board denies re-release (sic) finding the inmate can not be adequately controlled in the community.(Ex. 103 at 73.)
On August 10, 2006, Petitioner requested administrative review of his revocation. (Ex. 103 at 76.) He argued the Board's action exceeded the sanctioning guidelines without reason, and thus was ad hoc and in violation of his due process rights. (Ex. 103 at 76.) On November 13, 2006, the Board denied Petitioner's request for review. (Ex. 103 at 78-79.) The Board explained OR. ADMIN. R. 213-005-0004 conferred the authority to assign a twenty-year prison term. (Ex. 103 at 79.)
On May 27, 2008, Petitioner sought leave to proceed with an appeal in the Oregon Court of Appeals. (Ex. 105 at 1.) On July 31, 2008, the court granted Petitioner's motion on the ground that his claim presented a substantial question of law. (Ex. 108 at 1.) In both his brief in support of his motion to proceed and his reply brief after his motion was granted, Petitioner asserted the claim that the Board violated his rights under the Due Process Clause of the Constitution. (Ex. 105 at 19; 110 at 19.) The Oregon Court of Appeals affirmed without opinion. Morris v. Bd. of Parole and Post-Prison Supervision, 231 Or. App. 254, 254 (2009). Finally, Petitioner petitioned the Oregon Supreme Court for review on several questions, including whether the Board's "failure to adhere to governing procedural statutes when imposing sanctions for a supervision violate[d] petitioner's due process rights under the Fourth (sic) Amendment to the United States Constitution." (Ex. 112 at 5.) The Oregon Supreme Court denied review of Petitioner's petition. Morris v. Bd. of Parole and Post-Prison Supervision, 348 Or. 114, 114 (2010).
On March 28, 2011, Petitioner filed his habeas corpus action in this court. Petitioner alleges the Board violated his due process rights guaranteed by the United States Constitution (the "Constitution") by exceeding their discretionary authority under Oregon state sentencing laws, by providing insufficient factual basis or justification for deferring his release twenty years, and by "double counting" - using the same conduct that had resulted in revocation of his initial post-prison supervision as an aggravating factor for deferring his re-release. Petitioner also alleges the combination of the Board's refusal to address his due process claim in their denial of his request for administrative review and the state courts' affirmation without opinion of the Board's decision lacked basic fairness guaranteed by the Due Process Clause. (Pet'r's Br. at 7.)
Respondent argues Petitioner failed to fairly present to the state courts all the grounds stated in his federal petition. (Resp. to Pet. at 6.) Respondent also argues the Board cited adequate reasons and evidence for their decision. (Resp. to Pet. at 10.) Finally, the Respondent argues Petitioner was provided the necessary procedural due process protections for release hearings because he was given the opportunity to be heard, adequate notice, and a statement of why the Board denied his re-release. (Resp. to Pet. at 12.)
DISCUSSION
I. Failure to Exhaust State Remedies
Respondent argues Petitioner did not fairly present federal claims in appealing the denial of his re-release on post-prison supervision in the state courts. (Resp. to Pet. at 6.) Specifically, Respondent states Petitioner failed to state a federal claim in his petition for administrative review, failed to cite any federal violation in his petition for review before the Oregon Supreme Court, and instead characterized his claim before that court as "one of state law." (Resp. to Pet. at 8.) A federal court cannot grant a state prisoner a writ of habeas corpus, "unless it appears that the applicant has exhausted the remedies available in the court of the State." 28 U.S.C. § 2254(b) (2006). A claim has been fairly presented if the petitioner described in his appeal to the state courts both the operative facts and the federal legal theory on which the claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982).
Here, Petitioner claimed in his request for administrative review that the Board had acted in an ad hoc fashion, and in doing so had violated his due process rights. (Ex. 103 at 76.) Petitioner continued this due process claim throughout his appeal in the state court system. This claim appeared as his final assignment of error in his petition to the Oregon Court of Appeals (Ex. 110 at 19) and as his third question presented to the Oregon Supreme Court. (Ex. 112 at 8.)
This is not a case where the petitioner's "general appeal to a constitutional guarantee" was too vague to put the state courts on notice of his federal claim. Cf. Shumway v. Payne, 223 F.3d 982, 988 (9th Cir. 2000) (holding that mere reference to "due process" and citation to a state law case that referenced the federal constitution for a proposition other than that for which the case was cited to the state court was insufficient to put the state court on notice of the federal claim), Petitioner alleged a specific constitutional violation - the arbitrary and capricious nature of the Board's decision to deny his re-release and recommit him to twenty years in prison. While the due process claim relies on many of the same facts as Petitioner's state law claims in his petitions to the state courts, he also provided the state the opportunity to "apply controlling legal principles to the facts bearing on his constitutional claim." Anderson, 459 U.S. at 6.
Petitioner argued to the Oregon Court of Appeals, as the factual basis for his federal claim, that the Board failed to exercise its discretion as authorized by state law, present a sufficient basis for its decision, or apply the necessary criteria in reaching that decision. (Ex. 110 at 19.) In support of his claims, Petitioner cited federal cases including Whalen v. United States, 445 U.S. 684 (1980), which held that the Constitution precluded the imposition of consecutive sentences unless authorized by Congress. (Ex. 110 at 20.) Petitioner presented his Due Process Clause claim to the Oregon Supreme Court as he had to the Oregon Court of Appeals. (Ex. 112 at 8.) The combination was sufficient to fairly present Petitioner's federal due process claim to the state judicial system. As such, Petitioner exhausted his state remedies.
II. Relief on the Merits
A. Legal Standard
When a state prisoner has exhausted remedies for judicial review in the state where he was convicted, the habeas statute provides that a federal court may issue a writ of habeas corpus on behalf of a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C.A. § 2254. An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless the adjudication on the merits in State court:
Respondent alleges that Petitioner does not set forth any specific allegations of the federal Constitution or other body of federal law in his petition. (Resp. to Pet. at 5.) To the contrary, Petitioner's federal habeas petition lists three grounds for claiming that the Board violated the Due Process Clause of the Constitution. (Pet. for Writ of Habeas Corpus at 2.)
(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.A. § 2254(d). In Williams v. Taylor, 529 U.S. 362, 386-89 (2000), the Supreme Court construed this provision as requiring federal habeas courts to be highly deferential to the state court decisions under review. In Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), the Court reiterated the highly deferential nature of federal habeas review, and limited federal review "to the record that was before the state court that adjudicated the claim on the merits."
"'[C]learly established Federal law' is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lambert v. Blodgett, 393 F. 3d 943, 974 (9th Cir. 2004) (quoting Lockyer v. Andrade, 538 U.S. 63, 72 (2003)). An "unreasonable application" of clearly established federal law occurs when "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." Lambert, 393 F.3d at 974 (quoting Williams, 529 U.S. at 413). The state court's application of law must be objectively unreasonable. Williams, 529 U.S. at 410. A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state court decision applied clearly established federal law incorrectly. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In reviewing a state court decision, "a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (citations omitted). This standard will be met in relatively few cases. Id. at 1000. Absent clear and convincing evidence to the contrary, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C.A. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The last reasoned decision by the state court is the basis for review by the federal court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002).
Federal courts examine due process questions in two steps: first the court determines whether there exists a liberty or property interest of which a person has been deprived; and, if so, second the court asks whether the procedures followed by the state were constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989). When a State creates a liberty interest, the Due Process Clause requires fair procedure for its vindication-and federal courts will review the application of those constitutionally required procedures. Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 16 (1979), the United States Supreme Court held a state parole statute consistent with the Due Process Clause, which afforded an inmate the opportunity to be heard and, when parole was denied, informed him in what respects he fell short of qualifying for parole. The Court recently upheld the minimal requirements set forth in Greenholtz - an opportunity to be heard and notification as to the reasons parole was denied - as adequate due-process protection of the liberty interest in receiving parole. Swarthout, 131 S. Ct. at 862.
B. Analysis
The court assumes without deciding that Oregon's post-prison supervision statute creates a liberty interest protected by federal due process guarantees. The Oregon Supreme Court determined that, at least, a prisoner has a state-created interest in being released early from prison, which the state may not deny without due process. Stogsdill v. Bd. of Parole & Post-Prison Supervision, 342 Or. 332, 337 (2007). The Oregon Supreme Court has not yet ruled on whether a prisoner facing denial of his re-release to post-prison supervision or parole has that same liberty interest, and the Ninth Circuit has declined to decide whether Oregon's parole statute creates one. See O'Bretnski v. Maas, 915 F,2d 418, 421 (9th Cir. 1990) (instead concluding that petitioner failed to demonstrate a due process violation assuming Oregon prisoners have a protected liberty interest under ORS §§ 144.120, 144.780). In light of the lack of precedent on this threshold issue, the court follows the Ninth Circuit's approach in Jancsek v. Or. Bd. of Parole, 833 F.2d 1389, 1389 (9th Cir. 1987): the court does not decide whether the Oregon parole statute confers a liberty interest entitling prisoners to due process protection in the setting of release dates; "[i]nstead, we assume for the purposes of this decision that prisoners have such a liberty interest." More specifically, the court assumes that Petitioner had a state-created interest in being released on post-prison supervision at the completion of his jail sentence for violation of his previous post-prison supervision.
Petitioner was entitled to due process protection of his state-created interest, and the Board afforded Petitioner those minimum guarantees in executing his future disposition hearing. Petitioner does not dispute, and the record reflects that he was allowed to speak during his hearing and offer an explanation for the evidence against him. (Ex. 103 at 47-69.) Additionally, the Board provided Petitioner with access to the evidence against him in advance, and he had the opportunity to request non-disclosure of his records before the future disposition hearing. (Ex. 103 at 37, 47.) Finally, the Board notified Petitioner of the reasons for their denial of his re-release, both when the Board announced their decision at the conclusion of the hearing and in a written statement of the Board's additional findings on August 2, 2006. (Ex. 103 at 68, 73.) Verification that these procedural safeguards were available and in place is the beginning and end of the federal court's inquiry into whether a prisoner facing parole release received due process. Swarthout, 131 S. Ct. at 862 (petitioners had been allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied).
Petitioner argues he deserves greater constitutional protection because he was once on conditional release before being recommitted to state prison for violation of those conditions, which he states is distinguishable from the situation in Swarthout. In Swarthout, the Court reaffirmed its holding in Greenholtz that the constitutionally required procedures are minimal for prisoners facing Board decisions about their parole release, Id. The adverse final decision flowing from a future disposition hearing is more similar to parole release than parole revocation. This separate future disposition hearing is not only authorized but also necessary when the Board intends to invoke the weighty consequence of denying re-release. Himes v. Thompson, 336 F.3d 848, 862 (9th Cir. 2003) (citing Or. ADMIN. R. 255-075-0096(2)). Moreover, the minimum requirements due a prisoner turn on the differentiation between parole revocation and release. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. Greenholtz, 442 U.S. at 9. In Petitioner's situation, the Board had already revoked his post-prison supervision - a decision that Petitioner did not contest. The Board's subsequent decision at Petitioner's future disposition hearing was intended to determine whether to release Petitioner at the end of his sanction, a thirty-five day prison term, for essentially a new period of post-prison supervision. For this reason, this court joins others in this circuit in applying Swarthout in the context of future disposition hearings. See Shoemaker v. Czerniak, Civil Nos. 01-1703-AA, 02-724-AA, 2011 WL 4381727, at *2 (D. Or. Sept. 20, 2011) (holding Board afforded prisoner adequate due process as required by Swarthout by permitting him to speak at his future disposition hearing and notifying him of the reasons for denying his re-release).
A . Board Authority Under Oregon Statute
Petitioner contends that the Board exceeded authority granted under Oregon law and thus acted arbitrarily and capriciously when they recommitted him for a twenty-year prison term at his future disposition hearing. (Pet'r's Br. at 5.) Respondent maintains the Board adhered to the authority granted under OR. ADMIN. R. 253-05-005, which provides that the 180-day prison term limit on sanctions for violations of post-prison supervision does not apply to prisoners serving sentences for murder. (Resp. to Pet. at 11.)
Renumbered to OR. ADMIN. R. 213-005-0004. --------
The court need not address the merits of this dispute over the Board's authority under Oregon statute. The federal court's review stops short of deciding whether a state law that bestows rights beyond what the Constitution demands, was correctly applied. Swarthout, 131 S. Ct. at 863. In Swarthout, the Supreme Court found the Constitution did not guarantee adherence to California's "some evidence" rule, because the Court had not issued an opinion converting that state law into a substantive federal requirement. 131 S. Ct. at 862. Likewise, the Supreme Court has not declared an interpretation of Oregon's sentencing statute, such as the Board used to reschedule Petitioner's release date to December 7, 2025, to be an independent violation of the Due Process Clause. As such, the requirements in Oregon's sentencing statute are above and beyond the guarantees afforded a prisoner facing a decision for parole release, and not grounds for a federal court to grant a writ of habeas corpus.
Petitioner cites Whalen v. United States, 445 U.S. 684 (1980), to support his contention that the Board's disregard for state sentencing law violates the Due Process Clause. In Whalen, the Court held the District of Columbia Court of Appeals, by imposing consecutive sentences not authorized by Congress, violated the defendant's constitutional guarantee against receiving multiple punishments for the same offense. 445 U.S. at 684. Whalen is inapposite to Petitioner's position for several reasons. First, the precise holding in Whalen outlines a constitutional violation of the Double Jeopardy Clause and separation of powers, not the Due Process Clause. Id. Second, the footnote referenced by Petitioner is dicta, not mandatory authority. Third, that footnote assumes the Due Process Clause of the Fourteenth Amendment prohibits state courts from depriving persons of liberty or property as punishment for criminal conduct "except to the extent authorized by state law." Id. at 689 n.4 (emphasis added). Whalen does not set out a due process guarantee that is additive to the rights outlined in Greenholtz, and thus does not support Petitioner's contention,
Petitioner also contends that the Board's decision was ad hoc and thus a violation of due process because they did not provide a factual basis or reasons to justify either deferring his release date by twenty years or linking his possession of pornography to his original conviction of murder. (Pet'r's Br. at 4.) Moreover, when the Board did provide reasons, Petitioner argues those justifications were not sufficient to meet the requirements of due process. (Pet'r's Br. at 5.) Specifically, Petitioner contends the Board's use of his state conviction for encouraging child sexual abuse as an aggravating factor, when he had already received sanctions for that conduct, was unfair "double counting." (Pet'r's Br. at 7.) In response, Respondent notes the Board's specific mention of the reason for their ultimate decision: "repetition of type of conduct associated with commitment offense or past conditions." (Resp. to Pet. at 10.) Respondent also maintains Petitioner's use of pornography to control his former wife and murder victim provided the link between his original conviction and post-prison supervision violation. (Resp. to Pet. at 10.)
In Greenholtz, the Supreme Court held that no due process concept requires a parole board "to specify the particular evidence in an inmate's file or at his interview on which it rests the discretionary decision that an inmate is not ready for conditional release." 442 U.S. at 15. "The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 456 (1985). In fact, the Court in Hill declined to adopt a more stringent evidentiary standard as a constitutional requirement in these situations. Id. While the liberty interest at stake in Hill was the accumulation of good-time credits, the Court's holding in Hill applies to Board decisions that affect the duration of the prison term. Jancsek, 833 F.2d at 1390.
The Board provided two reasons for deferring Petitioner's release date by twenty years: (1) the aggravating factor that Petitioner's violation of his post-prison supervision was of the same type of conduct associated with the murder he committed in 1995 and prohibition of which was a condition of his prior post-prison supervision, and (2) the finding that Petitioner could not be adequately controlled in the community. (Ex. 103 at 73.) The Due Process Clause does not require greater specificity than the Board provided.
Finally, Petitioner contends the combined effect of the Board's failure to address his federal due process claim in denying him administrative review and the state courts' silent affirmation of the Board's decision lacked basic fairness. (Pet'r's Br. at 7.) 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). In Estelle, the Supreme Court found that consideration of whether evidence had been properly admitted under California law was not part of the federal court's due process inquiry. Id. Likewise, the Oregon rules of judicial review provide procedure beyond what the federal Due Process Clause demands and violations thereof, if any, are not grounds for habeas corpus relief.
The court finds Petitioner fairly presented his due process claims to the Oregon state courts. Accordingly, the court has subject matter jurisdiction over all claims in his federal petition pursuant to 28 U.S.C. § 2254(b)(1). The court also finds the Board provided Petitioner the necessary procedural guarantees of the Constitution due prisoners facing release on parole. As such, the Oregon state courts decisions denying relief are entitled to deference.
Recommendation
Petitioner failed to demonstrate a violation of the Due Process Clause of the Constitution because the Board afforded him the minimum procedural requirements guaranteed by the Constitution for prisoners facing release on parole. For these reasons, I recommend Petitioner's Petition for Writ of Habeas Corpus (Docket #2) be DENIED, and a judgment of dismissal be entered.
Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(3) (2006).
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due May 4, 2012, If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 20th day of April 2012.
/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge