United States District Court, D. Oregon
Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General, Samuel A. Kubernick, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
MARCO A. HERNANDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the Oregon Board of Parole and Post-Prison Supervision's ("Board") 2008 revocation of his parole and subsequent 84-month sanction. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) should be denied.
Petitioner pleaded guilty to one count of murder in 1987 resulting in a life sentence with the possibility of parole. The Board initially paroled petitioner in February 2003, but revoked his parole in October 2004. Respondent's Exhibit 104, pp. 48-50. In May 2005, the Board again released petitioner to parole before once again revoking his parole in March 2008 based upon allegations of domestic violence involving his girlfriend. These allegations gave rise to criminal charges, but did not result in any criminal convictions.
On June 11, 2008, the Board held a future disposition hearing to determine whether petitioner should be re-released to parole. The Board relied on the statements of petitioner's girlfriend contained in police reports and denied petitioner re-release on the basis that he could not be adequately controlled in the community. The Board sanctioned petitioner to 84 months' imprisonment and established November 8, 2014 as his release date. Id at 150.
Petitioner filed for administrative review of the Board's actions from the June 11, 2008 future disposition hearing, but the Board denied relief. Id at 187-189. He next sought judicial review in the Oregon Court of Appeals where the appellate court affirmed the Board's decision without issuing a written opinion. Watts v. Board of Parole and Post-Prison Supervision, 252 Or.App. 751, 292 P.3d 75 (2012). The Oregon Supreme Court denied review. 353 Or. 534, 300 P.3d 1223 (2013).
Petitioner filed this habeas corpus action on November 12, 2013 in which he raises two grounds for relief:
1. On March 11, 2008, the Board entered an order of revocation based upon petitioner's alleged conduct where the victim's accusations were not credible or provable; and
2. At petitioner's future disposition hearing on July 11, 2008, the Board imposed an 84-month sanction based upon conduct of which petitioner was ultimately acquitted.
Respondent asks the court to deny relief on the Petition because: (1) petitioner does not allege a violation of federal law; and (2) even if petitioner had alleged a violation of federal law in this case, any such claims are procedurally defaulted where he failed to fairly present any federal issue to Oregon's appellate courts.
The federal courts "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a) (emphasis added). Despite being represented by appointed counsel, petitioner fails to raise any federal claim in his Petition for Writ of ...