Opinion
Case No. 6:17-cv-01767-CL
05-14-2019
WAYNE HOUFF, Petitioner, v. GARRETT LANEY, Superintendent, Oregon State Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION :
Petitioner, an inmate at the Oregon State Correctional Institution, brought this habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner alleges that his rights to procedural due process were violated when the Oregon Board of Parole and Post-Prison Supervision (the Board) deferred his parole consideration date. For the reasons explained below, the petition should be denied.
DISCUSSION
In 1998, petitioner was convicted of four counts of Using a Child in a Display of Sexually Explicit Conduct, four counts of Encouraging Child Sexual Abuse in the Second Degree, and two counts of Sexual Abuse in the First Degree. Resp't Ex. 101 at 4-19. When imposing sentence, the trial court found petitioner to be a "dangerous offender" and sentenced him to concurrent, indeterminate thirty-year terms on four counts. Id. at 5-6. A dangerous offender was defined as one who "suffers from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another." Or. Rev. Stat. § 161.725(1) (1997). Based on the trial court's finding, petitioner was subject to the parole consideration provisions applicable to dangerous offenders under Or. Rev. Stat. § 144.228.
On September 17, 2013, the Board established a January 8, 2016 parole consideration date for petitioner. Resp't Ex. 102 at 79. On July 14, 2015, the Board conducted a parole consideration hearing to determine whether petitioner's parole date should be deferred. During that hearing, the Board considered petitioner's testimony and other evidence submitted by him, along with reports of two examining psychologists, Drs. Shellman and Stuckey. Resp't Ex. 102 at 272-347. At the conclusion of the hearing, the Board deferred petitioner's parole consideration date for an additional two years, finding that petitioner had "a mental or emotional disturbance, deficiency, condition, or disorder predisposing [him] to the commission of any crime to a degree rendering [him] a danger to the health or safety of others. Therefore, the condition which made [him] dangerous is not in remission. And [he does] continue to remain a danger." Resp't Ex. 102 at 343-347, 349-350.
Petitioner sought administrative review of the Board's decision, and the Board denied petitioner's requested relief. Resp't Ex. 102 at 352-359, 361-63. Petitioner then sought judicial review. Resp't Exs. 103-04. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp't Exs. 111-13.
On November 3, 2017, petitioner filed this federal habeas petition. He alleges that the Board violated his federal constitutional rights to due process as follows:
1) The Board lacked authority to defer petitioner's parole date because the psychological evaluations did not provide a "legally sufficient" prerequisite diagnosis;Pet. at 18 (ECF No. 1); Pet'r Mem. in Supp. at 1-2 (ECF No. 32). Petitioner requests that this Court grant his petition, vacate the Board's order, and release him from custody. Pet. at 19. Respondent maintains that petitioner's claims lack merit. I agree.
2) The Board "misinterpreted and misapplied the second of the two-step dangerous offender sentencing and release process, when it employed a process and burden substantially different than required by State v. Huntley, 302 Or 418 (1986) & Bell v. Board of Parole, 283 Or. App. 711 (2017)";
3) The Board "deprived Petitioner of a meaningful opportunity to be heard by prejudging and predetermining the outcome of the hearing, when it considered invalid risk assessment tools in the psychological evaluations, in violation of the Fourteenth Amendment to the United States Constitution."
These are the grounds petitioner presented to the Oregon Supreme Court when seeking review and are arguably reasserted in his federal petition. Resp't Ex. 111; see also Pet. at 18. Respondent maintains that only the third claim was presented to the Oregon Supreme Court as a federal constitutional claim, but petitioner arguably raised the Due Process Clause of the Fourteenth Amendment with respect to all claims when seeking review from the Oregon Supreme Court. Resp't Ex. 111 at 17-18, 21.
It is well settled that the United States Constitution does not create a protected liberty interest in a pre-release expectation of parole. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7-8 (1979). However, if a 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 v. Cooke, 562 U.S. 216, 220 (2011) (per curiam). Procedures necessary to satisfy due process requirements in the parole context are "minimal" and include only the opportunity to be heard and a statement of reasons for the parole decision. Id. "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.
The Ninth Circuit has indicated that "Oregon's dangerous offender parole release statute, Or. Rev. Stat. § 144.228, creates a liberty interest in parole." Houff v. Blacketter, 433 Fed. App'x 590, 590 (9th Cir. May 18, 2011); cf. Stogsdill v. Bd. of Parole & Post-Prison Supervision, 342 Or. 332, 336-38, 154 P.3d 91 (2007) (holding that a prisoner "has a state-created right to be released on parole unless the board finds that he suffers from a present severe emotional disturbance that presents a danger to the health or safety of the community"). Pursuant to Cooke, the procedures required to protect petitioner's interest are the opportunity to be heard and a statement of reasons for the parole decision. Houff, 433 Fed. App'x at 591 (finding that "Cooke forecloses Houff s due process claim" because "Houff had an opportunity to be heard at his hearing" and "the Board provided reasons for denying parole"); Smith v. Bd. of Parole & Post-Prison Supervision, 268 Or. App. 457, 469, 343 P.3d 245 (2015) (relying on Cooke in holding that "the ability to subpoena witnesses is not a requirement for a constitutionally adequate parole consideration hearing under ORS 144.228"); see also Rivas v. Bd. of Parole & Post-Prison Supervision, 272 Or. App. 248, 253, 356 P.3d 83 (2015) (finding that "the Oregon Supreme Court has not recognized a more significant liberty interest in early release under ORS 144.120 and ORS 144.125 than the United States Supreme Court has identified from the state statutes at issue in Greenholtz and Cooke").
Here, petitioner received the amount of process he was due. Prior to the parole consideration hearing, petitioner received notice of the hearing and materials provided by the Board. Resp't Ex. 102 at 6-11, 272. Further, petitioner provided the Board with a 165-page "Rehabilitation Summation" and an eighteen-page "Discussion on Hearing Notice Packet" for the Board's review prior to the hearing, and he testified at the hearing on his own behalf. Resp't Ex. 102 at 83-347. Finally, the Board announced its decision at the hearing and subsequently issued a written decision explaining the reasons for deferring parole. Resp't Ex. 102 at 343-347, 349-350. In short, petitioner received an opportunity to be heard and a statement of reasons why parole was deferred. That is "the beginning and the end of the federal habeas courts' inquiry." Cooke, 562 U.S. at 220.
Petitioner also fails to present - and the record does not reflect - any credible evidence of bias on the part of Board members. See Resp't Ex. 102 at 272-347. Moreover, petitioner ultimately challenges the Board's application of Oregon statutes to the evidence presented, and it is well established that federal habeas relief is not available to remedy alleged violations of state law. See Cooke, 562 U.S. at 222 (reiterating that "a 'mere error of state law' is not a denial of due process") (citations omitted). Accordingly, petitioner is not entitled to federal habeas relief.
CONCLUSION
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 pursuant to 28 U.S.C. § 2253(c)(2).
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within (14) days from service of the Findings and Recommendation. If objections are filed, any response is due fourteen (14) days after being served with a copy of the objections. Petitioner is advised that the failure to file objections within the specified time may waive the right to appeal the District Court's final order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 14 day of May, 2019.
/s/_________
MARK D. CLARKE
United States Magistrate Judge