Opinion
Civil No. 02-415-AS.
July 13, 2004
BARBARA L. CREEL Assistant Federal Public Defender Portland, OR, Attorney for Petitioner.
HARDY MYERS Attorney General LESTER R. HUNTSINGER Senior Assistant Attorney General Department of Justice, Salem, OR, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Currently before the court is the Petition for Writ of Habeas Corpus (#2). For the reasons that follow, the Petition should be DENIED, and this action should be DISMISSED.
BACKGROUND
In July 1981, Petitioner was placed on probation for the Unlawful Manufacture of a Controlled Substance. In June 1989, Petitioner's probation was revoked, and he was sentenced to 20 years in prison, with a 30-month minimum. Also in June 1989, Petitioner was sentenced to an additional 20 years of imprisonment, with a 10-year minimum, on a conviction of Robbery in the First Degree. In December 1989, he was sentenced to another 20-year term, with a 10-year minimum, on a second Robbery in the First Degree conviction.
At the time of Petitioner's offenses, applicable parole statutes and rules required the Oregon Board of Parole and Post-Prison Supervision (the "Board") to conduct a hearing to set an initial parole release date. On January 30, 1991, the Board conducted an initial parole hearing, established a matrix range of 96 to 126 months, and set Petitioner's projected release date in June 1996.
On February 7, 1996, the Board deferred Petitioner's release date for 24 months after a psychological evaluation. The Board Action Form ("BAF") #9 stated:
The Board, based on all the information it is considering at this hearing finds that you do have a mental or emotional disturbance, deficiency, condition, or disorder, predisposing you to the commission of a crime to a degree rendering you a danger to the health or safety of the community. The Board makes the additional finding that the Doctor's diagnosis coupled with all information it is considering, does result in a finding of a present severe emotional disturbance that constitutes a danger to the health or safety of the community. The Board has considered this matter under the provisions [of] ORS 144.125 as amended in 1993 and the laws in effect at the time of the commitment offenses. The Board does find the result to be the same under either version.
Resp. Exh. 102, p. 2.
Petitioner sought administrative review of the February 1996 order, but on March 20, 1996, relief was denied. Petitioner apparently did not receive the order denying relief on administrative review, and inquired on June 24, 1996, and July 4, 1996, about the status of his administrative review request. The Board provided Petitioner a copy of the administrative order denying relief on July 9, 1996.
On June 3, 1997, Petitioner filed a petition for writ of habeas corpus in state court. In his Replication, Petitioner argued the Board violated ex post facto principles by applying post-1993 statutes to defer Petitioner's release date. The state habeas trial court granted the respondent's motion to dismiss. The Oregon Court of Appeals ultimately affirmed without opinion, and the Oregon Supreme Court denied review. See Resp. Exhs. 120, 122, and 125.
The petition was dated May 16, 1996, but file-stamped June 3, 1997.
The Oregon Court of Appeals initially dismissed Petitioner's appeal as moot, as the Board had issued a intervening extension of Petitioner's parole date. The Oregon Supreme Court allowed review, however, and remanded the case back to the Oregon Court of Appeals.
On April 1, 2002, Petitioner filed this action. He alleges three grounds for relief: (1) an improperly paneled Board denied Petitioner's initial 1996 release; (2) it was cruel and unusual punishment to require a psychological evaluation of Petitioner and defer his release; and (3) the Board committed an ex post facto violation when it deferred release based upon an administrative law not in effect at the time of the crime.
Respondent argues the petition was untimely filed. Even if it was timely, Respondent further argues the state court decision denying relief was neither contrary to nor an unreasonable application of clearly established federal law.
Petitioner argues he is entitled to the benefit of the "prison mailbox rule" and, as such, the Petition was timely filed. Petitioner further argues the Board violated ex post facto principles in deferring Petitioner's release date. Petitioner does not address his claims that the Board was improperly paneled or that the deferral of his release date constituted cruel and unusual punishment.
DISCUSSION
I. Timeliness of the Federal Petition
Respondent argues the petition should be dismissed on the basis that it is time-barred under 28 U.S.C. § 2244(d)(1). Pursuant to 28 U.S.C. § 2244(d)(1), a one-year period of limitation applies to an application for a writ of habeas corpus filed "by a person in custody pursuant to the judgment of a State court." The limitation period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
©) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
Petitioner's challenge of a parole board action is governed by § 2244(d)(1)(D). Wade v. Robinson, 327 F.3d 328, 331 (4th Cir.), cert. denied, 124 S.Ct. 292 (2003); Kimbrell v. Cockrell, 311 F.3d 361, 363 (5th Cir. 2002); Cook v. New York State Div. of Parole, 321 F.3d 274, 280 (2nd Cir. 2003); Thompson v. Hill, Civ. No. 03-255-MA (D.Or. Dec. 12, 2003); see also Redd v. McGrath, 343 F.3d 1077, 1080 n. 4 (9th Cir. 2003) (assuming that § 2244(d)(1) applies to a state prisoner's challenge to a parole board decision, subsection (d)(1)(D) governs its commencement).
Granting Petitioner the benefit of the doubt about when he received the Board's Administrative Review Response, the limitation period for Petitioner's challenge began July 10, 1996, the day after the Board mailed a copy of its March 20, 1996, Administrative Review Response. A total of 327 days elapsed between July 10, 1996, and June 3, 1997, the date on which Petitioner filed his state habeas corpus petition. The parties agree the limitation period for a federal habeas petition remained statutorily tolled from June 3, 1997, until January 23, 2002, when the state habeas action concluded. The parties also agree that Petitioner submitted a pro se federal habeas petition and an application to proceed in forma pauperis to prison authorities by January 22, 2002, and that this federal habeas corpus action was filed with the court on April 1, 2002.
Petitioner argues that, pursuant to the "prison mailbox rule," his state habeas petition should be deemed filed on May 26, 1996, the date he signed the petition and allegedly gave it to prison officials to mail, rather than the filing date of June 3, 1997. See Houston v. Lack, 487 U.S. 266, 270 (1988). There is no evidence in the record to resolve this issue. Because Petitioner contends he did not receive a copy of the Board's Administrative Review Response until after July 9, 1996, some 6 weeks after his state habeas petition was allegedly signed, however, the court accepts the June 3, 1997, filing date.
Petitioner argues he is entitled to the benefit of the prison mailbox rule such that January 22, 2002, must be considered the date of filing. Respondent counters, however, that Petitioner did not submit a signed habeas corpus petition to prison authorities until March 26, 2002, at the earliest.
In Fallen v. United States, 378 U.S. 139, 144 (1964), the Supreme Court held an inmate had "done all that reasonable could be expected" in a direct criminal appeal when prison officials were given the notice of appeal two days before the deadline. InHouston v. Lack, 487 U.S. 266 (1988) the "prison mailbox rule" was applied to civil litigants, and delivery to correctional officials was considered the moment of filing. In Ford v. Hubbard, 330 F.3d 1086, 1097 (9th Cir. 2003), vacated on other grnds by Pliler v. Ford, 2004 WL 1373174 (U.S. June 21, 2004), the Ninth Circuit held a habeas petition to be timely under the mailbox rule when it was signed and delivered to correctional officials before the statute of limitations ran.
As Petitioner notes in his Memorandum in Support of Petition for Writ of Habeas Corpus, "there is nothing in the record to account for the time delay between the date the paperwork was processed and the signature date on the petition." Petitioner does not dispute, however, that the petition filed with this court was signed and dated March 26, 2002. Accordingly, to the extent Petitioner is entitled to the benefit of the prison mailbox rule, that benefit extends only to March 26, 2002, not the earlier January date. There are 61 days between January 24, 2002, and March 26, 2002. Because the elapsed days before the petition was filed total 388, the petition was untimely and should be dismissed. Even if the petition had been timely filed, however, Petitioner is not entitled to relief on the merits of his claim.
II. Relief on the Merits A. Legal Standards
A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he demonstrates that the state court's adjudication: "(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. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172-75 (2003).
A state court acts "contrary to . . . clearly established Federal law" if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ramdass v. Angelone, 530 U.S. 156, 165-66 (2000). An "unreasonable application of clearly established Federal law" occurs if a state court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle.Williams, 529 U.S. at 412; Ramdass, 530 U.S. at 166.
Determinations of factual issues by a state court are presumed to be correct, and a petitioner in federal court has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A "decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. at 340 (citation omitted).
In conducting a review, this Court must look to the last reasoned state-court decision. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003) (citing Franklin v. Johnson, 290 F.3d 1223, 1233 n. 3 (9th Cir. 2002)), cert. denied, 124 S.Ct. 2105 (2004). When a state court does not articulate a rationale for its determination, a review of that court's application of clearly established law is difficult. As the Ninth Circuit explained: "[f]ederal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (2000) (citation omitted); see also Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002) ("in such a case review of the record is the only means of deciding whether the state court's decision was objectively reasonable").
B. Analysis
1. Unaddressed Claims — Illegitimate Board Panel and Cruel and Unusual Punishment
As noted, Petitioner does not address his improper Board or cruel and unusual punishment claims in his memorandum in support of his petition. Although he does not expressly waive these grounds for relief, he does not present any legal argument in their support. Because it appears on the face of the petition that Petitioner cannot succeed on these claims, Petitioner is not entitled to relief. See 28 U.S.C. § 2248 ("[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.") 2. Ex Post Facto Violation
At the time Petitioner committed his crimes in 1981, Or. Rev. Stat. § 144.125(3) provided that the Board may extend a prisoner's parole release date "[i]f a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner." Former Or. Rev. Stat. § 144.125(3) (1981).
In 1993, the Oregon legislature amended Or. Rev. Stat. § 144.125(3) to allow the Board to defer release on parole if it finds the prisoner has a "mental or emotional disturbance, deficiency, condition or disorder predisposing the prisoner to the commission of a crime to a degree rendering the prisoner a danger to the health or safety of the community." Former Or. Rev. Stat. § 144.125(3) (1993).
Or. Rev. Stat. § 144.125(3) was further amended by the Oregon Legislature in 1999. That amendment, however, is not pertinent to this action.
a. Application of 1993 Standards
Petitioner contends the Board committed an ex post facto violation by changing the manner in which suitability for parole is determined. He complains that the Board retroactively applied the more onerous 1993 standards for determining parole eligibility instead of the standards in effect at the time he committed his crime in 1981. Under the 1981 version, Petitioner argues, the Board was required to grant release in the absence of a specific diagnosis from a psychiatrist or psychologist of a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community." Because the Board did not have before it such a diagnosis in 1996, Petitioner concludes the Board necessarily applied the 1993 standards.Petitioner is incorrect. The Board specifically stated it had considered Petitioner's release eligibility under the laws in effect at the time Petitioner committed his offenses. Moreover, the Oregon Court of Appeals has concluded that the version of Or. Rev. Stat. § 144.125(3) in effect in 1981 did "not require that a psychiatrist or psychologist recite the words `severe emotional disturbance' when diagnosing the prisoner, nor [did] it require that the Board base its release decision solely on a psychiatrist or psychologist's diagnosis of `severe emotional disturbance.'"Weidner v. Armenakis, 154 Or. App. 12, 959 P.2d 623 (1998),withdrawn by order July 13, 1998, reasoning reaffirmed and readopted in Merrill v. Johnson, 155 Or. App. 295 (construing 1991 version of law), rev. denied, 328 Or. 40 (1998); see also Godleske v. Morrow, 161 Or. App. 523, 526 (1999) (stating that the 1981 version is identical to the 1991 version, and applying Weidner with equal force), rev. denied, 330 Or. 553, 10 P.3d 943 (2000).
This Court defers to the state courts' construction of its penal statute unless the interpretation is untenable or amounts to a subterfuge to avoid federal review of a constitutional violation. Aponte v. Gomez, 993 F.2d 705, 707 (9th Cir. 1998). This Court previously found, and reiterates here, that the state courts' interpretation of Or. Rev. Stat. § 144.125(3) is neither untenable nor a subterfuge. See Everist v. Czerniak, CV 02-386-BR, Opinion and Order, p. 14 n. 3.
The standard to determine whether a prisoner has a severe emotional disturbance such as to constitute a danger to the health or safety of the community is a legal one, rather than a medical one, and the decision is the Board's. Weidner, 154 Or. App. at 19-20. Accordingly, it is not apparent the Board applied the 1993, rather than the 1981, standards in postponing Petitioner's parole release date in 1996.
b. Reinterpretation of 1981 Standards
Even if the Board applied the 1981 version of Or. Rev. Stat. § 144.125(3), Petitioner nonetheless argues the Board violated the Ex Post Facto Clause by reinterpreting the law to expand its authority to deny release. Petitioner contends that in 1981 the Board had interpreted the statute to mandate a prisoner's release on parole in the absence of a specific diagnosis by a Board-appointed psychiatrist or psychologist that the inmate suffered from a "severe emotional disturbance." Thus, comparing the Board's previous interpretation of the 1981 version of the statute to the current interpretation, Petitioner maintains his term of incarceration increased.
The Ex Post Facto Clause prohibits states from enacting laws which, by retroactive application, increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 250 (2000); Lynce v. Mathis, 519 U.S. 433, 441 (1997). Retroactive changes in laws governing the availability of parole to prisoners, in some instances, may violate this precept. Garner, 529 U.S. at 250.
The relevant inquiry in cases involving parole is whether the amended rule creates a significant risk of prolonging a prisoner's incarceration. Garner, 529 U.S. at 251. As noted inGarner, however, whether retroactive application of a change in parole law violates the prohibition against ex post facto legislation "is often a question of particular difficulty when the discretion vested in a parole board is taken into account."Id. at 250. In determining whether a change in parole laws actually resulted in increased punishment, policy statements, along with actual practices of the Board, are important considerations. Id. at 256.
In Everist v. Czerniak, CV 02-386-BR (D. Or. Sept. 24, 2003), the Honorable Anna J. Brown of this court considered the argument that application of the Board's revised interpretation of its authority under the 1981 version of Or. Rev. Stat. § 144.125(3) to postpone release on parole violated the Ex Post Facto Clause. Upon reviewing various Supreme Court and circuit decisions, Judge Brown concluded there was no clearly established federal law addressing this issue. See Portley v. Grossman, 444 U.S. 1311 (1980); California Department of Corrections v. Morales, 514 U.S. 499 (1995); Garner, 529 U.S. at 251-52; see also Holguin v. Raines, 695 F.2d 372, 374 (9th Cir. 1982), cert. denied, 464 U.S. 896 (1983); Methany v. Hammonds, 216 F.3d 1307 (11th Cir. 2000), cert. denied, 531 U.S. 1196 (2001);Hamm v. Latessa, 72 F.3d 947, 956 n. 14 (1st Cir. 1995), cert. denied, 519 U.S. 856 (1996). As such, Judge Brown further concluded that the Oregon courts' decisions denying the prisoner relief in Everist were neither contrary to nor an unreasonable application of clearly established federal law. Judge Brown reached the same conclusion in Hess v. Lampert, CV 02-85-BR (D. Or. Feb. 18, 2004).
I reach the same conclusion here. The state courts' decisions denying Petitioner habeas corpus relief were neither contrary to, nor an unreasonable application of, clearly established federal law because the Board's 1996 decision did not increase the punishment for Petitioner's crime or alter the standards for determining parole eligibility after the commission of Petitioner's crime in 1981. Accordingly, Petitioner is not entitled to relief on his ex post facto claim, and the petition for writ of habeas corpus should be DENIED.
RECOMMENDATION
Based on the foregoing, the Petition for Writ of Habeas Corpus (#2) should be DENIED, and a judgment of dismissal should be entered.SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due July 30, 2004. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than August 13, 2004. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.