Opinion
Civil No. 02-1690-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 Eastern Oregon Correctional Institution, 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 In June 1989, Petitioner's probation was revoked, and he was sentenced to 20 years in prison, with a 30-month minimum.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 November 4, 1999, the Board deferred Petitioner's release date for 24 months. At the time of the 1999 Board decision, Petitioner was still serving his sentence for the 1981 drug conviction. The good-time date on that offense was reached in May 2002, and Petitioner is now serving the first 1989 sentence.
Petitioner's release date had twice previously been deferred, in 1996 and 1997. The legality of the 1996 deferral is currently before this court in Birch v. Thompson, CV 02-416-AS, and the legality of the 1997 decision is currently before the court in Birch v. Thompson, CV 02-1260-AS.
In reaching the November 4, 1999, decision to defer release, the Board mistakenly believed Petitioner was serving his first 1989 Robbery sentence, rather than the 1981 drug sentence. The Board Action Form ("BAF") #11 stated:
The record indicates that the offender committed his/her crime(s) on or after 05/19/1988.
The Board has received a psychological evaluation on inmate dated 09/15/1999.
The Board determines that the psychological evaluation does constitute a finding that the offender has a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. This determination is based solely on the psychological evaluation.
In light of this determination, and after considering the psychological evaluation and all of the other evidence in the record, the Board defers the release date 24 months. . . .
Resp. Exh. 102, p. 2.
The psychological evaluation referred to by the Board was performed by David R. Starr, Ph.D. In his September 27, 1999, report, Dr. Starr concluded:
It is unclear from the record why BAF #11 referred to a "9/15/99" report. It is apparent, however, that the September 27, 1999, psychological report submitted by Petitioner is the report actually considered and relied upon by the Board.
This 37-year-eight-month-old, single, caucasian male may best be diagnosed at this time as:
AXIS I: Polysubstance Abuse by history AXIS II: Personality Disorder NOS with narcissistic and antisocial features ( DSM IV, 301.7) AXIS III: Sleep Disorder by self report AXIS IV: Incarceration AXIS V: Global Assessment of Functioning — Current — 50, severe symptoms of impairment in social functioning related to poor judgment and resistence to authority. Highest GAF past year = 50.
Martin Birch was convicted of two counts of First Degree Robbery. He entered a grocery store with a ski mask and a gun and robbed the checkers. He was on parole at the time and in addition to sentencing for the crimes his parole was revoked. Mr. Birch has a lengthy legal history and he has had a troublesome adaptation in the prison setting with many DR's over the years. He is not a particularly insightful individual and he takes no responsibility for his crimes. He is somewhat callous in his regard to the victims of his crimes and he generally lacks empathy for others. He is somewhat self centered in his appraisal of himself and he takes a one up position in comparing himself with others.
In Mr. Birch's favor he has an adequate plan of parole. His plan to pursue inpatient treatment for substance abuse is appropriate under the circumstances and he indicated appropriately that he would utilize his support group from Pathfinders.
Mr. Birch's response to the psychological testing was suggestive of a relatively defensive individual who tended not to have much evidence of clinical pathology. He is outgoing and friendly, at least initially. He may be impulsive in his common sense decision making and he may be somewhat distractible at times. Mr. Birch's score on the Hare Psychopathy Checklist-Revised emphasizing empathy and lack of predictable behavior was suggestive of violent recidivism in the future. He may benefit from a therapy program designed to enable him to develop insight into his own psychological functioning perhaps toward an end to taking more responsibility for his own behavior.
Pet. Exh. A, pp. 5-6.
Petitioner sought administrative review of the November 4, 1999, order, which the Board denied on January 13, 2000. The Administrative Review Response stated:
In your [administrative review] request, you allege that the Board violated its rules, the United States and Oregon Constitutions, and the Oregon Court of Appeals ruling in Peek v. Thompson, 160 Or. App. 260 (1999) by deferring your release 24 months based on a psychological evaluation. You go on further to allege that the Board could not hold you in custody based on Dr. David Starr's psychological evaluation because it did not specifically say that you have a present severe emotional disturbance. You are incorrect. It is clear from reading BAF #11 that the Board made its determination based on the findings in Dr. Starr's psychological evaluation. The Board stated that Dr. Starr's psychological evaluation constituted a finding that you have a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. The Board went on further to say that this determination was based solely on Dr. Starr's psychological evaluation. Your argument that because Dr. Starr did not specifically say this in his psychological evaluation, you must be released, has no merit. The Oregon Court of Appeals in Merrill v. Johnson, 155 Or. App. 295 (1998) made it clear that it was not necessary for the psychologist to specifically say those words in order for the determination to be made. It is clear that the Board followed the Court's ruling in Peek by virtue of its basing its determination on Dr. Starr's psychological evaluation. In Dr. Starr's psychological evaluation he diagnosed you as having a Personality Disorder NOS with Narcissistic and Antisocial Features under Axis II and under Axis V as having a Global Assessment Functioning Score of 50. That score represents severe symptoms of impairment in social functioning related to poor judgment and resistance to authority. Dr. Starr goes on to conclude that you are not a particularly insightful individual, and you take no responsibility for your crimes. You are somewhat callous in regard to the victims of your crimes, and you generally lack empathy for others. Dr. Starr states that the psychological testing shows that you are relatively defensive and impulsive in your common sense decision making, and you may be distractible at times. Your score on the Hare's Psychopathy Checklist-Revised emphasizing empathy and lack of predictable behavior was suggestive of violent recidivism in the future. Therefore, there was more than substantial evidence to support the Board's determination that you continue to suffer from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community.
Finally, you allege that your rights to due process and equal protection under the United States and Oregon Constitutions were violated when the Board deferred your release based on the finding that you have a present severe emotional disturbance. This is incorrect. Your release was deferred based on the present severe emotional disturbance constituting a danger to the health or safety of the community. The Board never made a finding that you were suffering from a mental illness or that you had a mental disorder as defined in ORS 426.005(d). However, Dr. Starr did diagnose you as having a personality disorder which led to the Board's determination that you were suffering from a present severe emotional disturbance. You are not being treated any differently than other offenders similarly situated as far as being sentenced under the matrix system. The Board did not violate any rules, policies, statutes, or constitutions in making its decision.
Resp. Exh. 104, pp. 1-2.
Petitioner filed a petition for writ of habeas corpus in state court in 2000. In his Replication, Petitioner alleged the Board committed an ex post facto violation. The state filed a motion to dismiss, which the trial judge granted after a hearing. Petitioner appealed. The Oregon Court of Appeals issued a written opinion addressing only the issue of attorney fees, and the Oregon Supreme Court denied review. Birch v. Lampert, 182 Or. App. 541, 49 P.3d 112, rev. denied, 335 Or. 42, 57 P.3d 581 (2002).
Petitioner filed this action on December 13, 2002. He alleges three claims for relief: (1) the Board violated his due process rights because the Board was "improperly paneled," it lacked authority to require a psychological evaluation, and it improperly used the psychological evaluation to "cover up" the deferral of parole; (2) the Board violated Petitioner's right to be free from cruel and unusual punishment by failing to grant early release; and (3) the Board committed an ex post facto violation by applying statutes and rules not in effect at the time Petitioner committed the crime.
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").
DISCUSSION
I. Unaddressed Claims — Cruel and Unusual Punishment and Due ProcessIn his memorandum in support of the petition, Petitioner does not address his cruel and unusual punishment or due process claims. 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.")
II. Ex Post Facto Violation A. Legal Standards
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.
B. Analysis 1. Board Use of the Peek v. Thompson Standard
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). The applicable administrative rule implementing this statute in 1981 provided:
Throughout his memorandum in support of the petition, Petitioner argues his crimes were committed in 1989. Upon a careful review of the record, however, at the time of the November 1999 Board decision, Petitioner was still serving his sentence for the 1981 conviction, not the 1989 convictions. This fact was recognized by Petitioner's counsel in the state habeas corpus proceeding, where Petitioner argued the Board inappropriately applied a 1988 administrative rule to defer his release date.
(1) Should the interview indicate that:
(a) A psychiatric or psychological diagnosis of the prisoner reveals a present severe emotional disturbance which the Board finds based upon the crime of committal and/or behavior in the institution poses a threat to the health and/or safety of the community; or
(b) The prisoner has engaged in serious institutional misconduct, a hearing shall be conducted by the Board to consider deferring the parole release date. . . .
(2) Following the hearing, a panel may order postponement of the scheduled release of a prisoner found to have a present emotional disturbance which the Board finds poses a threat to the health or safety of the community until after a specified future date not to exceed or until the prisoner or institution presents evidence that the emotional disturbance is over or in remission.
(3) The Board may not deny release on parole solely because of a prisoner's severe emotional disturbance. . . .
Former Or. Admin. R. § 255-60-010 (1981).
Oregon courts construed the statute and rule in effect in 1981 to allow the Board to look at the entire record before it in determining whether the inmate had a present severe emotional disturbance, which constituted a danger to the health or safety of the community. 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). The "Weidner/Merrill" rule did not limit the Board to considering solely the psychiatric or psychological report. In other words, even if the psychiatric or psychological report was completely favorable to the prisoner, the Board could still defer release based upon other factors. Moreover, the statute created a legal, not a medical standard. Weidner, 154 Or. App. 18.
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.
In 1988, the administrative rules changed. The pertinent statutory provision still provided:
(3) If 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, the board may order the postponement of the scheduled parole release date until a specified future date.
Or. Rev. Stat. § 144.125(3) (1987). A new administrative rule, however, adopted in 1998, implemented this statute as follows:
(7) The Board may order a psychiatric/psychological report anytime prior to the release. If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may consider deferring parole release until a specified future date.
(8) If the evaluation does not make a finding of severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parole release date and set parole conditions.
Former Or. Admin. R. 255-60-006 (1988).
In Peek v. Thompson, 160 Or. App. 260, 980 P.2d 178, rev. dismissed, 329 Or. 553, 994 P.2d 130 (1999), the Oregon Court of Appeals considered the effect of former Or. Admin. R. 255-60-006 on the Board's authority to defer a prisoner's parole release date. The court concluded the rule required that the finding under Or. Rev. Stat. § 144.125(3) of a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community" be derived only from the psychiatric or psychological report before the Board could defer an inmate's early release on parole. Peek, 160 Or. App. at 265, 980 P.2d 181-82 (citation omitted). The court described the difference between the 1988 rule and the rule in effect at the time of the offenses in Weidner/Merrill:
So long as [the 1988] rule was in effect, it required the Board to treat the statute as requiring a formal finding in the psychiatric or psychological evaluation as a prerequisite to the Board's authority to extend a prisoner's parole release date. That requirement imposes a greater limit on the Board's authority to extend a release date than does allowing the Board to make its own determination, based on all the evidence in the record, of the prisoner's condition. The rule, thus, is more favorable to a prisoner than is the view of the statute that we adopted in Weidner.Peek, 160 Or. App. at 265-66, 980 P.2d at 182 (emphasis added).
While the 1988 rule limited the information the Board could consider in determining whether to defer release, the legal standard remained the same:
Determining whether the psychologist's diagnosis satisfies the standard of the statute and the rule is not a simple task. . . . [T]he statute creates a legal, not a medical standard, so applying a medical diagnosis to that legal standard necessarily requires some translation from one system to the other. The legal determination is whether a "prisoner's emotional disorder was (a) present, (b) severe, and c) one that made the prisoner a `danger to the health and safety of the community."Peek, 160 Or. App. at 268, 980 P.2d at 183 (quoting Weidner, 154 Or. App. at 18, 959 P.2d at 623).
Here, the Board erroneously applied the more favorable Peek standard to determine Petitioner had a present, severe emotional disorder, making the prisoner a danger to the health and safety of the community. The Board reviewed solely Dr. Starr's psychological evaluation to decide the legal standard for deferring release under statute was satisfied.
In Petitioner's state habeas case, the trial judge recognized the Board's mistake, found the Board applied a more favorable standard than the one in effect at the time of Petitioner's crime, and concluded no ex post facto violation occurred. The state habeas trial judge stated on the record:
THE COURT: . . . Here's the way I'm going to approach this case, Gentlemen. And, first of all, let me address your statement, Mr. Birch. Your statements seem to be ones of attempting to persuade this Court that you are ready for release. This Court does not make that decision. That decision is for the Board of Parole and post-prison supervision. This Court simply reviews what has been done to be sure that it meets legal standards or, in this particular case, their deferral of your parole release. Now, I do agree that there is no ex post facto issue in this particular case, as contended by your attorney on your behalf. But, I do recognize that Mr. Carlson has reversed the argument somewhat, contending now that rather than the more advantageous standard of review, which was utilized in your case, that actually the less advantageous, that is, the broader standard of review should have been utilized and therefore, the Board should have had all the materials before it. . . . I've already indicated although the Board was entitled to use the lesser, Weidner/Merrill standard in determining whether to release you on parole, the Board actually relied upon the more favorable Peek v. Thompson standard. Under the Peek v. Thompson rule, the Board is confined to, and this Court simply determines whether the psychiatric or psychological report contained information from which the Board could conclude that the petitioner had a present severe emotional disturbance that constituted a danger to the health or safety of the community.
* * *
In essence, from this Court's review of that particular report, there was ample content within Dr. Starr's psychological evaluation of 9/27/99, on which the Board could find that you did have a present severe emotional disturbance that constituted a danger to the health or safety of the community and the Board thus did have, under the narrower standard, Peek v. Thompson, and the report it had before as the proper basis for proper deferral.
Resp. Exh. 111, pp. 26-29.
The trial judge's conclusion that no ex post facto violation occurred as a result of the Board's misapplication of the Peek standard to defer Petitioner's parole release date is neither contrary to, nor an unreasonable application of, clearly established federal law. The Board's 1999 decision did not increase the punishment for Petitioner's crime or negatively alter the standards for determining parole eligibility after the commission of Petitioner's crime in 1981.
2. Reinterpretation of the Standards for Deferring Release
Regardless of whether the Board applied the 1981 or 1988 standards for deferring his release, Petitioner 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 and 1988 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.
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 1999 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.
RECOMMENDATION
Based on the foregoing, I recommend that the Petition for Writ of Habeas Corpus (#2) be DENIED, and that a judgment of DISMISSAL 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.