Opinion
3:22-cv-01993-MK
08-29-2023
ELIZABETH DIANE DOWNS, Petitioner, v. OREGON BOARD OF PAROLE, Respondent.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, United States Magistrate Judge.
Petitioner brings this federal habeas action pursuant to 28 U.S.C. § 2254 and challenges a 2020 decision of the Oregon Board of Parole and Post-Prison Supervision (the Board) deferring Petitioner's parole consideration date. Petitioner contends that her sentence of imprisonment expired in 2014 and the Board violated her due process rights by failing to release her on parole. Petitioner's claims are either barred from review or were denied in decisions that are entitled to deference, and the Petition should be denied.
BACKGROUND
In 1984, Petitioner was convicted of Murder, Attempted Murder, and Assault in the First Degree after a jury found that Petitioner fatally shot one of her children and gravely wounded the other two. Resp't Ex. 101; Downs v. Hoyt, 232 F.3d 1031, 1034-35 (9th Cir. 2000). The trial court sentenced Petitioner as a “dangerous offender” pursuant to Or. Rev. Stat. § 161.725 and imposed a sentence of life imprisonment on the murder charge and consecutive sentences of thirty years' imprisonment and twenty years' imprisonment on the remaining charges. Resp't Ex. 101 at 1-2, 5-6; Downs v. McGee, No. 04-cv-6215-MA, 2006 WL 1582304, at *1 (D. Or. June 1, 2006), aff'd, 246 Fed. App'x 476 (9th Cir. 2007). According to the Board's interpretation of Petitioner's sentence, she is “serving a sentence under the dangerous offender designation for an indeterminate sentence of life.” Resp't Ex. 107 at 2.
In 1985, the Board set an initial parole consideration date of February 2009. Resp't Ex. 108 at 113-14, 121. Between 1999 and 2007, the Board denied Petitioner's numerous requests for early parole consideration. Id. at 128-48.
In December 2008, the Board held a parole review hearing and found that Petitioner had a persistent severe emotional disturbance (PSED) that rendered her dangerous to the health or safety of others. Based on this finding, the Board deferred Petitioner's parole consideration date for twenty-four months, until March 2011. Id. at 149-54. In December 2010, the Board again found that Petitioner suffered from a PSED and that she could not reasonably be expected to be released on parole for ten years. The Board then deferred Petitioner's parole consideration date for 120 months, until March 2021. Id. at 155-58.
In September 2020, the Board held a parole review hearing and issued Board Action Form (BAF) #14. Id. at 379-534. The Board found that Petitioner's PSED was not absent or in remission, that Petitioner remained a danger to others, and that she could not reasonably be expected to be released on parole for an additional five years. Resp't Ex. 108 at 527, 531. The Board explained in BAF #14:
Based on the complexity and persistent nature of [Petitioner's] psychological and emotional issues, no marked improvements in her understanding of her offending from her last hearing where a subsequent hearing was deferred for 10 years, her continued inability to recognize the issues that makes her a risk to reoffend, and her lack of real remorse for her past criminal conduct, a deferral of five years is an appropriate deferral term. A passage of five years is a reasonable amount of time to reassess [Petitioner's] progress.Resp't Ex. 108 at 532. Accordingly, the Board deferred Petitioner's parole consideration date for sixty months, until March 2026. Id. at 530-34.
Petitioner sought administrative review of BAF #14, and the Board ultimately denied the merits of Petitioner's request. Resp't Exs. 107, 108 at 535-46. Petitioner sought judicial review, and the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp't Exs. 102, 116-17. Petitioner now seeks federal habeas review.
DISCUSSION
Petitioner's federal Petition raises four grounds for relief. In her first claim, Petitioner contends that the Board should have granted her release on parole, because Oregon's dangerous offender statute prohibits an offender from being sentenced to more than thirty years' imprisonment and her sentence expired in 2014. In her second claim, Petitioner argues that the trial court's imposition of a thirty-year sentence for Attempted Murder was not authorized by Oregon law. In her third claim, Petitioner contends that the Board violated her federal due process rights by deferring her parole consideration date to March 2026. In her fourth and final claim, Petitioner alleges that the Board's deferred parole date exceeds her maximum sentence. See Pet. at 4-8 (ECF No. 1).
A. First and Second Claims: Expiration and Validity of Petitioner's Sentence
Petitioner argues that the dangerous offender statute authorizes a maximum term of thirty years' imprisonment, and the Board should have released her on parole because her sentence necessarily expired in 2014. See Or. Rev. Stat. § 161.725(1). Petitioner further contends that the trial court's imposition of a thirty-year sentence for Attempted Murder was unauthorized under Oregon law and is void. Respondent maintains that Petitioner's first and second claims challenge the legality of her sentence rather than the Board's 2020 decision, and those claims cannot be challenged in this federal habeas action. I agree.
The judgment of the trial court imposed an indeterminate life sentence for Petitioner's Murder conviction and consecutive, maximum terms of thirty and twenty years of imprisonment for Petitioner's Attempted Murder and Assault convictions. Resp't Ex. 101. The trial court's judgment therefore authorizes Petitioner's current confinement, and her claims necessarily implicate its validity. Petitioner challenged the same judgment in her initial federal habeas action and could have raised her first and second claims at that time. See Downs v. Hoyt, Case No. 3:96-cv-0900-HA. Consequently, Petitioner's first and second claims are successive and barred from federal review. See 28 U.S.C. § 2244(a),(b); Magwoodv. Patterson, 561 U.S. 320, 333 (2010) (holding that “the phrase ‘second or successive' must be interpreted with respect to the judgment challenged”); Gage v. Chappell, 793 F.3d 1159, 1164-65 (9th Cir. 2015) (holding that claims “in which the factual predicate existed at the time of the first habeas petition” qualify as second or successive). Petitioner has not obtained an order from the United States Court of Appeals for the Ninth Circuit allowing her to bring a successive petition, and this Court lacks jurisdiction to consider her first and second claims. See 28 U.S.C. § 2244(b)(3)(A).
Petitioner does not dispute that her second claim is successive and barred from review. However, Petitioner argues that she could not have raised her first claim in her initial federal action, because her sentence did not expire until 2014 and “Respondent wasn't violating Petitioner's Due Process Rights until they failed to release Petitioner from custody in 2014.” Pet'r Reply at 4. Petitioner's argument is unavailing, as the trial court's Sentencing Order clearly imposed consecutive sentences exceeding thirty years and the factual predicate for this claim existed when Petitioner initially sought federal habeas relief. Regardless, even if Petitioner's first claim was not ripe at that time, it became ripe in 2010 - when the Board deferred Petitioner's parole consideration date to March 2021 - and Petitioner's first claim is time-barred in that event. See 28 U.S.C. § 2244(d)(1).
Moreover, the Oregon courts rejected Petitioner's interpretation of Oregon's dangerous-offender statute, and federal habeas relief cannot arise from alleged errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (federal habeas relief is not available to remedy alleged errors of state law). Finally, Petitioner's claim ignores the trial court's imposition of consecutive sentences, and the dangerous offender statute does not prohibit multiple, consecutive sentences.
In sum, Petitioner is not entitled to habeas relief on her first and second claims, as her claims are successive, time-barred, or otherwise lack merit.
B. Due Process Procedures during Parole Review Hearing
In her third claim, Petitioner contends that the Board violated her rights to due process by deferring her parole consideration date to March 2026. Specifically, Petitioner argues that the evidence before the Board did not establish that she still suffered from a severe narcissistic personality disorder, the condition that Petitioner alleges made her dangerous in 1984. The Oregon Court of Appeals rejected this claim, and Respondent maintains that its decision is entitled to deference.
A federal court may not grant habeas relief regarding any claim “adjudicated on the merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” established federal law if it fails to apply the correct Supreme Court authority or reaches a different result in a case with facts “materially indistinguishable” from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly established federal law if the state court identifies the correct legal principle but applies it in an “objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). To meet this highly deferential standard, a petitioner must demonstrate that the state court's ruling “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
The Supreme Court has held that prisoners have no federal constitutional right to “to be released before the expiration of a valid sentence” and states “are under no duty to offer parole.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (per curiam); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). However, where state law creates a liberty interest in parole, “the Due Process Clause requires fair procedures for its vindication - and federal courts will review the application of those constitutionally required procedures.” Swarthout, 562 U.S. at 220; Miller v. Or. Bd. of Parole & Post-Prison Super., 642 F.3d 711, 716 (9th Cir. 2011).
The procedures required to satisfy due process requirements in the parole context are minimal and include only the opportunity to be heard and a statement of the reasons supporting the parole decision. Swarthout, 562 U.S. at 220. “Because the only federal right at issue is procedural, the relevant inquiry is what process [the petitioner] received, not whether the state court decided the case correctly.” Id. at 222; see also Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 201l) (“[T]here is no substantive due process right created by California's parole scheme. If the state affords the procedural protections required ... that is the end of the matter for purposes of the Due Process Clause.”)
Here, the Oregon Court of Appeals reasonably rejected Petitioner's due process claim. The record reflects that Petitioner had notice of the Board's hearing, and she participated at the hearing and submitted materials on her behalf. Resp't Ex. 108 at 287-344, 381-514, 525-26. Further, the Board provided Petitioner with statements explaining its decision to defer parole consideration for sixty months and its denial of administrative review. Resp't Ex. 107, 108 at 530-34.
Petitioner's argument that the facts before the Board did not support the deferral of parole is a substantive challenge to the Board's decision and foreclosed by Swarthout. In the parole context, sufficiency of the evidence is not a protected due process right. See Miller, 642 F.3d at 716-17 (explaining that the relevant question is “is not whether the Board's decision ... was substantively reasonable [or] whether the Board correctly applied Oregon's parole standards” but is “simply whether the state provided Miller with the minimum procedural due process” requirements). Whether a prisoner is given an opportunity to be heard and provided a statement of reasons explaining why parole was denied or deferred is “the beginning and the end of the federal habeas courts' inquiry.” Swarthout, 562 U.S. at 220.
In this case, Petitioner received notice, an opportunity to be heard, and a statement of reasons supporting the Board's decision. Accordingly, Petitioner received the process she was due, and she is not entitled to habeas corpus relief on this claim.
C. Maximum Sentence for Murder
Fourth and finally, Petitioner alleges that the Board's new parole consideration date exceeds her maximum sentence, because the “actual time” she could serve for Murder was eight to fourteen years. Pet. at 7. Petitioner did not raise this claim in her request for Administrative Review or in her briefing before the Oregon appellate courts, and it is unexhausted. Resp't Exs. 103, 110, 114-15; see 28 U.S.C. § 2254(b)(1); Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (“Exhaustion requires the petitioner to ‘fairly present' his claims to the highest court of the state.”). Petitioner can no longer raise this claim before the Oregon courts, and it is procedurally defaulted and barred from federal review. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (“A procedural default may be caused by a failure to exhaust federal claims in state court.”).
CONCLUSION
For the forgoing reasons, the Petition for Writ of Habeas Corpus (ECF No. 1) should be DENIED. A Certificate of Appealability should be DENIED on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed.R.Civ.P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).