Opinion
Civil No. 99-585-ST.
October 26, 2001
ANTHONY D. BORNSTEIN, Assistant Federal Public Defender, Portland, OR., Attorney for Petitioner
HARDY MYERS, Attorney General, CAROLYN ALEXANDER, Assistant Attorney General, Department of Justice, Salem, OR., Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, who is currently serving a term of post-prison supervision, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition for writ of habeas corpus (docket #2) should be DENIED and this action should be DISMISSED.
BACKGROUND
On May 8, 1986, petitioner was convicted a murder which he committed occurred on October 31, 1985. Petitioner was sentenced to life imprisonment with a 10-year minimum. Pursuant to Oregon law in effect at the time, upon the commencement of petitioner's sentence, the Oregon Board of Parole and Post-Prison Supervision (the "Parole Board" or "Board") established a parole release date.
Prior to the original parole release date, petitioner underwent a psychological evaluation by Dr. H. F. Shellman. Despite Dr. Shellman's conclusion that petitioner did not have an Anti-social Personality Disorder and would be a reasonable risk for parole, the Parole Board postponed petitioner's release date fo 24 months.
On June 5, 1996, the Parole Board deferred petitioner's parole for another 24 months. The Board's decision was based, in part, on a psychological report prepared by Dr. Robert Stuckey, in which he concluded that petitioner suffered from "an emotional condition predisposing him to the commission of a crime to a degree, rendering him a danger to the health and safety of the community."
Three days before the Parole Board issued the 1996 postponement order, petitioner challenged the 1994 action through a petition for writ of habeas corpus in Marion County Circuit Court. Petitioner argued that the 1994 Board action violated his "ex post facto rights guaranteed by the Oregon and United States Constitution" by applying a 1993 statute which allowed the Board to postpone petitioner's release date under a less stringent standard than the rule in effect at the time of his crime. The trial court dismissed the case.
Petitioner appealed, and in a published decision the Oregon Court of Appeals affirmed the dismissal. Payton v. Thompson, 156 Or. App. 217, 968 P.2d 388 (1998) (en banc). The court deemed the 1994 Board order a nullity because it was superseded by the 1996 order extending petitioner's release date. The Oregon Supreme Court initially denied review, then later issued an order vacating the order denying review, recalling the appellate judgment, and remanding the case back to the Oregon Court of Appeals for a decision on the merits. Payton v. Thompson, 328 Or. 275, 977 P.2d 1173 (1999), order vacated by, 330 Or. 281, 6 P.3d 1100, rev. allowed by 330 Or. 360, 6 P.3d 1102 (2000).
Petitioner filed his petition for federal habeas corpus relief in this court on April 23, 1999. Following entry of the Oregon Supreme Court order recalling the appellate judgment and remanding the state case to the Oregon Court of Appeals, this action was stayed. On October 5, 2000, the Parole Board released petitioner on parole. The state subsequently filed a motion to dismiss the state appeal, arguing that the release rendered petitioner's case moot. The Oregon Court of Appeals agreed, granting the state's motion in an order issued on March 6, 2001. The stay of this action was then lifted by order of March 28, 2001.
In the Petition for Writ of Habeas Corpus currently before this court, petitioner alleges that the Board's 1994 and 1996 decisions to postpone his parole release date violated the Ex Post Facto Clause of the United States Constitution. Respondent contends that petitioner's release on parole in October 2000 rendered his challenge to the legality of the Board's 1994 and 1996 release deferments moot. In response, petitioner maintains that had he been released on parole on the date originally set, he would no longer be under active parole supervision, and his claims are not, therefore, moot.
The Petition also includes a second ground for relief which petitioner expressly declines to pursue. Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus, p. 6.
DISCUSSION
In order to avoid dismissal on the basis of mootness, an action in federal court must present an active case or controversy under Article III, § 2, of the United States Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Throughout "`all stages of federal judicial proceedings . . . [t]he parties must continue to have a personal stake in the outcome of the lawsuit.'" Id. (citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)). This means that the petitioner "`must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable decision.'"Id. (citing Lewis, 494 U.S. at 477).
In habeas corpus actions involving wrongful convictions, the United States Supreme Court has been willing to presume continuing collateral consequences. Spencer, 523 U.S. at 8, 12, 14. A petitioner who is not challenging his conviction, however, must demonstrate that there are consequences adequate to meet Article III's injury-in-fact requirement.Id. Consequences that turn on discretionary decisions, or are purely speculative, are not sufficient to meet that requirement. Id. at 13, 16.
The Order of Supervision Conditions issued by the Parole Board upon petitioner's release provides that he must serve a three-year term of "active supervision. "Prior to expiration of the three-year term, petitioner's supervising officer may submit a report to the Parole Board requesting continuation of active supervision and, after reviewing the report, the Board may order petitioner to remain on active supervision. OAR 255-094-0000(3) 255-094-0010. In the absence of such a request and order, however, petitioner's supervision will then convert to "inactive."
Petitioner argues that had the Board not denied release, he would have been paroled in either 1994 or 1996. Once on parole, he contends that it is far more likely than not that his active parole supervision would have been terminated within three years. While a change from active to inactive status does not relieve a parolee of his responsibility to abide by all of the conditions of parole, the parolee is no longer required to pay supervision fees or obtain permission before leaving the state or changing employment or residence. OAR 255-094-0010(4). Petitioner's present status under the more onerous active supervision, he concludes, is a collateral consequence of the illegal 1994 and 1996 Board actions.
Petitioner's argument is without merit. As other Judges of this court have previously held, the possibility that petitioner's parole status would have previously changed to inactive had he been released from custody at an earlier date is insufficient to demonstrate collateral consequences. See Meadows v. Oregon State Board of Parole, Civ. No. 99-1692-AA (Opinion and Order, April 9, 2001); Vanderhoof v. Thompson, Civ. No. 99-191-CO (Order Adopting Findings and Recommendation, April 10, 2001); Vaughn v. Lampert, Civ. No. 99-775-HU (Order Adopting Findings and Recommendation, August 2, 2001). The decision to transfer petitioner from active to inactive parole supervision lies in the discretion of the Parole Board, and the possibility of such a favorable discretionary decision does not constitute an injury likely to be redressed by a favorable decision of this court. Spencer, 523 U.S. at 7.
Accordingly, petitioner's challenge to the Parole Board's 1994 and 1996 decisions deferring his release is rendered moot by his October 2000 release on parole.
RECOMMENDATION
Based on the foregoing, this court recommends that the Petition for Writ of Habeas Corpus (docket #2) should be DENIED AS MOOT, and that this action should be DISMISSED.
SCHEDULING ORDER
Objections to these Findings and Recommendation, if any, are dueNovember 16, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due no later thanDecember 4, 2001. 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.