Opinion
CV. 03-463-HU
June 1, 2004
Anthony D. Bornstein, Portland, Oregon, for Petitioner
Youlee Y. You, Salem, Oregon, for Respondent
FINDINGS AND RECOMMENDATION
Petitioner, an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's habeas corpus petition (#2), and Amended Petition (#25) should be denied.
BACKGROUND
In 1993, petitioner pleaded no contest to one count of Use of a Child in Display of a Sexual Act and one count of Sexual Abuse in the First Degree. He was sentenced to probation. Due to a failure to attend treatment sessions and to take a plethysmograph, on December 5, 1997, petitioner's probation was revoked and he was sentenced to imprisonment for 20 years.On July 1, 1999, Dr. David Starr, a licensed psychologist, issued a report of his May 14, 1999, evaluation of petitioner. Based on Dr. Starr's report and "all the information" before it, on September 30, 1999, the Board of Parole and Post-Prison Supervision Board ("Parole Board") concluded that petitioner suffered from "a present severe emotional disturbance ["PSED"] that constitutes a danger to the health or safety of the community." Resp. Exh 103. Accordingly, the Board deferred petitioner's release date for an additional 24 months.
Petitioner filed a request for administrative review of this decision. On March 2, 2000, the Board affirmed its decision to defer petitioner's release date. On June 9, 2000, petitioner sought habeas corpus relief. On November 14, 2000, the Malheur County Circuit Court granted defendants' motion to dismiss petitioner's writ of habeas corpus. In so doing, Judge Patricia Sullivan noted that a PSED does not require a finding of violence, but a concern that the inmate presents a danger to the community. Resp. Exh 110 at pp. 17. Second, Judge Sullivan noted that Dr. Starr was "limited" in making a diagnosis because he "had some real difficulty with [petitioner] who is in total denial and wouldn't cooperate with evaluations." Id. at 18. Because Dr. Starr "can't do much better" in making a diagnosis, due to petitioner's "lack of cooperation," Judge Sullivan found "that this is [a] sufficient diagnosis to meet the requirements of the rule. . . ." Id. at 19.
Subsequently, the Oregon Court of Appeals affirmed without opinion,Snow v. Lampert, 185 Or. App. 253, 60 P.3d 41 (2002), and the Oregon Supreme Court denied review, Snow v. Lampert, 335 Or. 266, 66 P.3d 1027 (2003).
In the instant proceeding, petitioner alleges that: (1) he is being unlawfully confined; (2) this unlawful confinement is causing him severe emotional distress; and (3) this unlawful confinement is kidnaping. In his Amended Petition, petitioner additionally alleges that the Parole Board violated his right to due process by deferring his parole release date based on insufficient evidence. The first three claims do not raise federal constitutional issues apart from due process and I need not discuss them. Therefore, the only issue before this court is petitioner's claim of a denial of due process.
DISCUSSION
I. Procedural Default
Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. See 28 U.S.C. § 2254 (b)(1). To satisfy the exhaustion requirement, a prisoner must fairly present his federal claims to the state courts. Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003);Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003).
A "fair" presentation requires that the prisoner present both the operative facts and the legal theory on which the claim is based so as to adequately alert the state courts to the federal nature of the claim.Koerner, 328 F.3d at 1046; Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), cert. denied, 538 U.S. 1042 (2003). This may be accomplished by explicit reference to a constitutional amendment or by citing state or federal case law discussing the federal constitutional right in question. See Peterson, 319 F.3d at 1158.
Defendants argue that petitioner's claims are procedurally defaulted because petitioner alleged only a state sufficiency of the evidence claim in his state habeas petition and appeal therefrom. In a reply to his state habeas petition, petitioner asserted that his "continued incarceration violates his United States Constitutional Rights to be free from Cruel and Unusual Punishment; to Due Process of Law; to the Equal Protection of the Laws; and the 14th Amendment applying the above mentioned rights to the states." Resp. Exh 108, pp. 2-3.
Petitioner correctly titles his state court reply as a "Replication." Or. Rev. Stat. § 34.670 states in relevant part: "the plaintiff in the proceeding . . . may, by replication . . . controvert any of the material facts . . . or the plaintiff may allege therein any fact to show, either that imprisonment or restraint of the plaintiff is unlawful, or that the plaintiff is entitled to discharge. . . ."
In his brief to the Oregon Court of Appeals, petitioner's first sentence of argument asserts that "[t]he state created a protected liberty interest by placing a substantive limit on the Board in reviewing an inmate's eligibility for parole." Resp. Exh 112, p. 3. Moreover, to support this argument, petitioner cites to Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454 (1989) (holding that prisoners do not have a liberty interest in receiving excluded visitors). Although petitioner did not particularly label any claim as one of due process, he did present the crux of his due process concern to the Oregon courts: that the promise of liberty held out by the Parole Board could be undermined without much process on the basis of the Parole Board's finding relating to a psychological evaluation.
Defendants are correct that petitioner never specifically argued in the state court proceedings that the Parole Board violated his federal constitutional right to due process when it concluded that he has a PSED. Nevertheless, the underlying thrust of petitioner's claim throughout all of these proceedings is that the Parole Board had insufficient evidence to determine that he was ineligible for parole. The state courts were adequately alerted to the federal nature of petitioner's underlying claim of a denial of a right to due process. While this claim is not procedurally defaulted, petitioner's violation of due process claim nevertheless fails on the merits.
II. Merits
In Oregon, the Parole Board can postpone or defer an inmate's parole release date based on its finding that an inmate suffers from a PSED "such as to constitute a danger to the health or safety of the community." See O.R.S. 144.125(3) (1981) (statutory language in effect when petitioner committed his crimes). This circuit has not decided whether Oregon's parole statutes create a liberty interest. The Ninth Circuit has declined to decide this issue, finding instead that even if a liberty interest did exist, the inmates had received all the process required under Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 16 (1979) (holding that Nebraska parole procedure complies with due process because it affords an opportunity to be heard and informs inmates what is necessary to qualify for parole). See e.g., Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390-91 (9th Cir. 1987);Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987) ("court's scope of review of parole board decisions is very limited"), cert. denied, 484 U.S. 1017 (1988); Plumb v. Prinslow, 847 F. Supp. 1509 (D. Or. 1994) (holding that inmates have "a liberty interest in having a claim presented to the Parole Board for their consideration"). Similarly, I need not address whether a liberty interest exists in this case because petitioner received all the process due.
It is well-settled that the constitutional standard for the deprivation of a liberty interest under the Due Process Clause in the parole board context is whether there is "some evidence" to support the decision.Superintendent v. Hill, 472 U.S. 445, 454 (1985) (concerning revocation of good time credits).
A parole board's finding of a PSED does not have to be based solely on a psychological evaluation. Weidner v. Armenakis, 154 Or. App. 12, 17, 959 P.2d 623, 625 (1998) (mooted while an appeal was pending and accordingly withdrawn by order on July 13, 1998); Merrill v. Johnson, 155 Or. App. 295, 964 P.2d 284 (1998) (reasoning of Weidner readopted and reaffirmed). Moreover, a psychological evaluation does not have to "recite the words `severe emotional disturbances' when diagnosing the prisoner." Weidner, 154 Or. App. at 17, 959 P.2d at 625. The Parole Board can also "consider all information properly before it." Id., 154 Or. App. at 17-18, 959 P.2d at 626.
In this instance, Dr. Starr did not specifically diagnose petitioner as having a PSED. Instead, Dr. Starr concluded that petitioner is "not a sociopathic individual so violence is not predicted." Resp. Exh 102, pp. 5-6. Nevertheless, Dr. Starr noted that petitioner's MMPI-2 score indicates a possible "fake good profile," that [p]ersons who respond similarly to [petitioner] tend to be outgoing and self indulgent," "manipulative of others in interpersonal relationships," and sometimes become "aggressive and explosive even in unprovoked situations."Id. at 4.
Because petitioner "suggested profound minimization of personal problems," Dr. Starr further noted that the personality assessment was "unlikely to be a valid reflection of [petitioner's] experience" and that petitioner's "profile was not interpretable for clinical purposes." Id. Despite these caveats, Dr. Starr made an Axis I diagnosis of "Rule out Paraphilia NOS;" and an Axis II diagnosis of Personality Disorder with dependent, passive/aggressive, and inadequate features." Id. at 5. Notably, Dr. Starr concluded that
further treatment is indicated to gain the cooperation of [petitioner] in the management of his paraphilic tendencies. As more is understood by [petitioner] and his treatment providers about his sexual proclivities the less risk he will be in the community. As it stands, however, he has not yet found it necessary to adequately cooperate with the treatment program and consequently probation officers do not know enough about him to help him effectively manage his behavior.Id. at 5-6 (emphasis added).
In light of the foregoing, I conclude that the state record contains "some evidence" supporting the Parole Board's decision to defer petitioner's release date. See Hill, 472 U.S. at 455. For example, the Parole Board knew of petitioner's crime, his failure at probationary sex offender treatment, his continued minimization of his crimes, his failure to find it necessary to adequately cooperate with a treatment program, and Dr. Starr's conclusion that petitioner will be of less risk to the community once he cooperates in the management of his sexual proclivities. Accordingly, the Parole Board had some evidence, namely Dr. Starr's psychological evaluation and "all the information" before it, to conclude petitioner suffered from a PSED posing a danger to the health or safety of the community and defer petitioner's release date for 24 months.
Moreover, petitioner has failed to present any evidence contradicting Judge Sullivan's findings that Dr. Starr was unable to complete a more thorough diagnosis due to petitioner's lack of cooperation. Accordingly, her findings are entitled to a presumption of correctness. 28 U.S.C. § 2254(d).
In sum, petitioner has failed to demonstrate that the state court's rejection of his due process claim was either contrary to, or an unreasonable application of, clearly established law. Accordingly, habeas corpus relief should be denied.
RECOMMENDATION
Based on the foregoing, petitioner's habeas corpus petition (#2) and Amended Petition (#25) should be denied and judgment should be entered against petitioner with prejudice.
SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due June 16, 2004. If no objections are filed, the Findings and Recommendations will go under advisement on that date.
If objections are filed, a response to the objections is due June 30, 2004, and the review of the Findings and Recommendation will go under advisement on that date.