Opinion
Civil No. 03-631-ST.
November 5, 2004
Barbara L. Creel, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Lester R. Huntsinger, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner brings this federal habeas corpus action pursuant to 28 U.S.C. § 2254. He contends that the Oregon Board of Parole and Post-Prison Supervision ("Board") violated his right to due process when it refused to reopen his prison term hearing to consider new evidence. For the reasons which follow, the Petition for Writ of Habeas Corpus (docket #2) should be dismissed with prejudice.
BACKGROUND
In 1985, petitioner was convicted of four counts of Solicitation to Commit Aggravated Murder, four counts of Distribution of a Controlled Substance, and one count of Possession of a Controlled Substance. Respondent's Exhibit 101. He was sentenced to 60 years in prison, including three consecutive 10year minimum sentences. Palacios v. Board of Parole, 132 Or.App. 243, 245, 888 P.2d 69 (1995).
The Board held its first prison term hearing in 1986 where it overrode one of petitioner's three 10-year minimum terms and sustained the other two. Id. The following year, the Oregon Court of Appeals concluded that pursuant to OAR 255-35-022(2), consecutive minimum terms were considered a "single unified minimum" that the Board could only sustain or override as a whole. Id; see also Roof v. Board of Parole, 85 Or.App. 188, 736 P.2d 193 (1987); Hill v. Board of Parole, 85 Or.App. 215, 735 P.2d 1301 (1987). The Board therefore amended OAR 255-35-022(2) and adopted a new provision authorizing it to override "one or more" consecutive minimum terms. OAR 255-35-023(3).
In 1989, petitioner asked that his parole release date be reset under the former version of OAR 255-35-022(2). The Board concluded that its earlier decision sustaining two of the three 10-year minimum terms was consistent with its new rule, and that retroactive application of the new rule to petitioner's case was permissible. Palacios, 132 Or.App. at 246. The Board noted that had it applied the former rule to petitioner, he likely would have received a 30-year term rather than the 20-year term which was ultimately imposed. Id.
The Board again held an administrative review hearing on February 26, 1992. Id. During that hearing, the following exchange ensued:
Coleman: Is there anything generally you would like to say to the Board that may relate to mitigation or something you believe we ought to consider that you haven't addressed already . . . in deciding whether to affirm the prior prison term or to decide on a different term?
Relator: Yes. In the [pre-sentence investigation report], the official version of it, it says in the first three or four paragraphs, says that I was a head of an organization. If you recall reading that? And . . . the court, when I went to sentencing, struck that from the record, made the correction and that should never have been, I mean, I don't understand why it's still in here now. And I'd like to get that on the record, that that shouldn't be in there.
* * *
Santos: Mr. Palacios, you indicated that the court struck that. Do you have any, in your documents at all, do you have any documentation that the court . . .
Relator: I tried to get the transcripts . . .
Santos: . . . My only reason for raising that is if you don't have those today, you may wish to received [sic] them in the future, whenever, you know, within 45 days or beyond the 45 days, you might want to submit those to the Board.
Relator: Right. I'm in the process of trying to get the transcripts. But they are so expensive. They're about $900.
Santos: We understand that.
Relator: And it's going to take me awhile to get the transcripts for you.
Santos: Thank you.
Respondent's Exhibit 111, pp. 5-6.
Also during the hearing, petitioner alleged that the presentence investigation report ("PSI") erroneously attributed to him prior convictions for "hit and run" and Driving While Suspended. Id at 6-7. He claimed to have prevailed on the "hit and run" conviction on appeal, and further asserted that the Driving While Suspended charge had been dropped. Id at 7. Board member Santos responded that "[t]he record today reflects something different. But, again, that's subject to getting new information." Id at 7.
Following its deliberations, the Board concluded as follows:
We have found, I believe, aggravating factor L, which is your persistent involvement in . . . substance abuse. And also, that your criminal history was more extensive than reflected by the history/risk score. And . . . because of the two DWS convictions, if anything has changed with those, you need to let the Board know.Id.
At petitioner's insistence, the Board applied former OAR 235-55-022(2) as interpreted by the Oregon Court of Appeals inRoof and Hill in calculating his prison term. The Board warned petitioner that to do so would require the Board to choose between prison terms of 110 months and 360 months only. It advised him that it would be "hard-pressed to set [him] at 110 months." Palacios, 132 Or.App. at 247. Petitioner nevertheless opted to proceed under former OAR 235-55-022(2). The Board then voted to sustain all three of the 10-year minimum sentences, resulting in an initial prison term of 360 months. Id.
On April 1, 1992, petitioner requested administrative review of the Board's decision on the basis that the Board made its decision in the absence of pertinent and existing information. Specifically, he claimed that his trial and sentencing transcripts were not available during the hearing, and would have rebutted the allegedly false information in the PSI. Respondent's Exhibit 111, pp. 7-8. The Board responded that the aggravating factors "clearly are documented and are applicable." Id at 8.
Petitioner directly appealed the Board's decision to set his prison term at 360 months, but he did not raise a due process challenge arising out of the Board's inability to review pertinent information which would have rebutted damaging information in the PSI. The Oregon Court of Appeals affirmed the decision in a written opinion, and the Oregon Supreme Court denied review. Palacios, 132 Or. App. 242, rev. denied 321 Or. 246 (1995).
It is unclear when petitioner actually filed for direct appeal, but the court notes the case was deemed "argued and submitted" on October 27, 1993, and decided on January 4, 1995.Palacios, 132 Or.App. at 243.
While his appeal was pending, on November 4, 1993, petitioner submitted a second request for administrative review in which he again advised the Board that it had been without pertinent information when it made its last decision. He claimed that he was "finally able to obtain a copy of the sentencing transcript where the judge specifically struck from the record false information in the State's `version' of the PSI." Respondent's Exhibit 111, p. 8. On November 19, 1993, the Board denied this request for administrative review because: (1) the information was not pertinent; and (2) the PSI was a court document which was not subject to alteration by the Board. Id at 9.
Almost two years later, on October 5, 1995, petitioner filed a 28 U.S.C. § 2254 habeas corpus petition challenging the constitutionality of the Board's 1992 decision. He alleged that the Board vindictively increased his term of imprisonment from 20 to 30 years in retaliation for petitioner having asserted his right to have the length of his prison term considered underRoof and Hill. Magistrate Judge Donald C. Ashmanskas recommended denying relief on the merits, and District Judge Owen M. Panner adopted that recommendation. Respondent's Exhibits 104 105.
On February 22, 1996, petitioner filed a third request for administrative review of the 1992 hearing and asked the Board to waive the 45-day requirement for requesting review. The Board denied petitioner's request as untimely. Respondent's Exhibit 111, pp. 9-10.
Between April of 1996 and July of 1999, petitioner filed five more requests for administrative review, none of which were fruitful. Id at 11-21. Accordingly, in January of 2000, petitioner filed for a state petition for writ of mandamus in which he alleged that the Board violated his constitutional rights when it refused to reopen his prison term hearing for the purpose of reconsidering the allegedly erroneous findings of aggravation in the PSI. The mandamus court dismissed the petition sua sponte on the basis that petitioner's remedy lay in a direct appeal, not a mandamus action. Respondent's Exhibit 112.
The Oregon Court of Appeals issued a per curiam opinion affirming the mandamus court on the merits, but reversing on a filing fee issue. Respondent's Exhibit 114, p. 4. The Oregon Supreme Court denied review. Id.
On May 12, 2003, petitioner filed his second 28 U.S.C. § 2254 habeas corpus proceeding. He alleges that the Board violated his right to due process when it refused to reopen his prison term hearing to consider new evidence which would have rebutted the criminal history as reported in the PSI, thereby invalidating the Board's findings of aggravation.
Respondent argues that the 2003 Petition currently before the court is successive to the 1995 Petition, and therefore is subject to dismissal pursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").
DISCUSSION
"A claim presented in a second or successive habeas corpus application under Section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). Dismissal is also required for claims presented in a second habeas corpus application that were not presented in a prior application unless:
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, nor reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2244(b)(2).
The "AEDPA does not define the terms `second or successive.'"Hill v. Alaska, 297 F.3d 895, 897 (9th Cir 2002). "The phrase `second or successive petition' is a term of art given substance in [the Supreme Court's] prior habeas corpus cases." Slack v. McDaniel, 529 U.S. 473, 486 (2000). The term "second or successive" is "derivative of the `abuse-of-the-writ' doctrine developed in pre-AEDPA cases." Hill, 297 F.3d at 898.
An abuse of the writ is demonstrated where the failure to raise a claim in an earlier petition was due to the petitioner's inexcusable neglect. McCleskey v. Zant, 499 U.S. 467 (1991). The standards used to determine inexcusable neglect are identical to those used to determine whether to excuse a state procedural default. Id. Thus, a petitioner must show cause for failing to raise his claim earlier and "actual prejudice resulting from the errors of which he complains." Id. If a petitioner is unable to demonstrate cause for his failure to present his claims earlier, he still does not abuse the writ if he can show that he is actually innocent of his underlying crimes. Id.
Here, petitioner first filed for federal habeas corpus relief on October 5, 1995. In that proceeding, he claimed only that the Board violated his right to due process when it vindictively increased his punishment in retaliation for his request to have his case evaluated under former OAR 235-55-022(2) as interpreted by the Oregon Court of Appeals in Roof and Hill.
In his 2003 Petition, petitioner challenges the Board's refusal to reopen his case in order to assess rebuttal evidence regarding his criminal history as detailed in the PSI. He asserts that the current action arises out of his 2000 state mandamus proceeding, which he filed after numerous unsuccessful attempts to obtain relief through administrative appeals. He therefore characterizes the 2003 Petition as his first federal habeas challenge to the Board's failure to reopen his case.
Despite petitioner's characterization, the instant case actually challenges the validity of his February 26, 1992 prison term hearing. The 1995 and 2003 Petitions both attack the validity of the Board's decision to set petitioner's release date at 360 months, a decision which was affirmed on administrative review and direct appeal. However, the due process issue presented in the 1995 Petition is separate and distinct from the due process issue contained in the 2003 Petition. Consequently, the court must determine whether petitioner abused the writ when he omitted the claim he now presents from his 1995 Petition.
As previously noted, petitioner first raised the issue regarding the allegedly improper finding of aggravation during his February 26, 1992 hearing, which took place more than three years prior to the filing of his 1995 Petition. Respondent's Exhibit 111, pp. 5-7. He also raised the issue in his request for administrative review dated April 1, 1992, when he claimed that there was "[p]ertinent information [which] was not available at the time of the original hearing which would have had an effect on the Board action." Id at 7-8.
When the Board denied his request for administrative review on May 20, 1992, petitioner had exhausted his administrative remedies on this issue and could have presented it to the Oregon Court of Appeals during direct review. Instead of presenting the issue during his direct appeal, on November 4, 1993, he submitted a second request for administrative review and provided the Board with a copy of the sentencing transcript to disprove the PSI's recitation of his criminal history. Respondent's Exhibit 111, p. 8.
On November 19, 1993, almost two years prior to the filing of his 1995 Petition, the Board rejected the challenge and advised petitioner that it could not change the information in the PSI.Id at 9. At that point, petitioner had not only raised his claim with the Board on three separate occasions, but had presented the Board with documentary evidence to support it. Rather than raise the due process claim in his 1995 Petition, petitioner continued to file futile requests for administrative review before improperly seeking state mandamus relief in 2000.
Well before filing the 1995 Petition, petitioner knew that the Board would not entertain additional challenges to the contents of the PSI. It had denied his second request for administrative review November 19, 1993, despite his offer of new evidence in the form of his sentencing transcript. Although his administrative challenges prior to the 1995 Petition were not cast as requests to reopen his case, this distinction is immaterial. The requests for administrative review sought relief identical to that of the challenges he characterized as requests to reopen the proceedings.
The Board's refusal to accept any additional information submitted by petitioner is troubling in light of its February 26, 1992 invitation to petitioner to supplement the record. However, almost two full years before he filed the 1995 petition, petitioner had full knowledge of his claim and realized that the Board would no longer entertain it even if he offered new evidence to support it. Because petitioner could have raised his current claim in his 1995 Petition, his attempt to file another federal habeas corpus action raising the claim constitutes an abuse of the writ. As petitioner has not demonstrated cause and prejudice or made a colorable showing of actual innocence, this action should be dismissed with prejudice.
Even if the 2003 Petition was not considered abusive, the sua sponte dismissal of petitioner's state mandamus action shows that petitioner failed to present the due process claim at issue to the Oregon courts in a context in which the merits of the claim would have been considered. Accordingly, the claim remains unexhausted and is now procedurally defaulted. See Castille v. Peoples, 489 U.S. 346, 351 (1989).
RECOMMENDATION
For the reasons identified above, judgment should be entered DISMISSING the Petition for Writ of Habeas Corpus (docket #2) with prejudice.
SCHEDULING ORDER
Objections to these Findings and Recommendation, if any, are due November 29, 2004. If no objections are filed, then the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due within 10 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 be referred to a district court judge and go under advisement.