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Whittlinger v. Nooth

United States District Court, D. Oregon

June 24, 2014

DANIEL WHITTLINGER, Petitioner,
v.
MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent.

ANTHONY D. BORNSTEIN, Assistant Federal Public Defender. Portland, OR, Attorney for Petitioner.

ELLEN F. ROSENBLUM, Attorney General, KRISTEN E. BOYD, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

Petitioner, an inmate at the Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. ยง 2254. For the reasons that follow, the Court DENIES the Amended Petition for Writ of Habeas Corpus (#16).

BACKGROUND

On June 29, 1989, Petitioner was convicted of murder pursuant to a plea deal and was sentenced to life imprisonment, with a ten-year minimum term. In March 1995, Petitioner was convicted of Inmate in Possession of a Weapon, and was sentenced to 31 months of imprisonment. In 2002, Petitioner was released to parole.

In January 2007, Petitioner's parole was revoked. After serving a sanction for the new criminal activity, Petitioner was re-released to parole in April 2007.

On July 15, 2007, Petitioner was arrested after his vehicle struck and seriously injured three cyclists. In October 2007, Petitioner's parole was revoked pending a future disposition hearing. Following the hearing, the Oregon Board of Parole and Post-Prison Supervision (the "Board") concluded re-release would be denied and reset Petitioner's parole release date to July 15, 2047.

Petitioner timely petitioned the Oregon Court of Appeals for review of the Board's action. The Oregon Court of Appeals affirmed the Board's action without opinion, and the Oregon Supreme Court denied a petition for review. Whittlinger v. Board of Parole, 252 Or.App. 751, 292 P.3d 75 (2012), rev. denied, 353 Or. 281, 298 P.3d 31 (2013).

On May 6, 2013, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court. The Court appointed counsel to represent Petitioner. Currently before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus (#16), which alleges two grounds for relief:

Ground One: The Oregon Board of Parole violated petitioner's right to Due Process of Law under the Fourteenth Amendment when, in 2009, it denied his re-release, an action taken with unlimited discretion. Specifically, the absence of guidelines for this decision denies due process.
Ground Two: The Oregon Board of Parole further violated petitioner's right to Due Process of Law when it failed to promulgate adequate rules governing and guiding re-release decisions.

Respondent argues neither claim was fairly presented to the Board or the state courts and that, in any event, the Board decision is entitled to deference and that Petitioner's claims are without ...


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