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Gordon v. Premo

United States District Court, D. Oregon

April 28, 2015

DENNIS LEROY GORDON, Petitioner,
v.
JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.

ANTHONY D. BORNSTEIN, Federal Public Defender's Office, 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

MALCOLM F. MARSH, District Judge.

Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Petitioner challenges the constitutionality of the Oregon Board of Parole and Post-Prison Supervision's deferral of his parole release date. For the reasons set forth below, his habeas petition is denied.

BACKGROUND

On September 4, 1975, petitioner raped a woman at gunpoint in her Roseburg home. After the attack, he threatened the victim that he or his friends would return to harm her if she told anyone. Gordon v. Bd. of Parole and Post-Prison Super., 246 Or.App. 600, 602, 267 P.3d 188 (2011). Eighteen days later, after the victim testified before a grand jury, petitioner chartered a plane from Hood River and returned to the woman's home. Petitioner drove the woman and her two youngest children to a secluded location, where he stabbed the woman repeatedly and placed her body on the floorboard of the car at the feet of her children. Gordon v. Ed. of Parole and Post-Prison Superv., 267 Or.App. 126, 128, 340 P.3d 150 (2014). Later, while the victim may still have been alive, petitioner beheaded her, and buried her body and head at separate locations. Id. ; Gordon v. Bd. of Parole and Post-Prison Superv., 343 Or. 618, 620, 175 P.3d 461 (2007); Gordon v. Ed. of Parole and Post-Prison Superv., 266 Or.App. 405, 408-09, 338 P.3d 185 (2014); Gordon, 246 Or.App. at 602-03. The victim's children were left in the family car and found by police several hours later. Petitioner returned to Hood River in the same chartered plane he arrived in. Gordon, 246 Or.App. at 603.

In 1976, petitioner pled guilty to Murder and Rape in the First Degree. He received an indeterminate sentence not to exceed life imprisonment for the murder, and a consecutive indeterminate 20-year sentence for rape. Resp. Exh. 101.

I. Relevant Parole Rules

When petitioner committed his crimes, Oregon's sentencing scheme was known as the discretionary system. Under that system, a prisoner serves an indeterminate sentence, and the board periodically considers whether the prisoner is suitable for release on parole. Gordon, 343 Or. at 620.

In 1977, the state legislature replaced the discretionary system with a matrix system. Id. at 621. Under the matrix system, most prisoners receive a firm parole release date, which may be postponed for statutory reasons only.[1] See Id. at 621-22. Unless the parole release date is postponed, the prisoner must be released on his parole release date. Id. at 622; Hamel v. Johnson, 330 Or. 180, 187, 998 P.2d 661 (2000). Offenders who committed their crimes before the adoption of the matrix system are permitted to opt into the matrix system, and the prisoner's eligibility for parole is then determined using the rules in effect at the time of his election. Gordon, 343 Or. at 622-23.

At all relevant times, ORS 144.125(3) provided that "[i]f a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made..., the board may order the postponement of the scheduled release date." 1981 Oregon Laws, c. 426, § 2; 1987 Oregon Laws, c. 320 § 53; see also Gordon, 343 Or. at 627 n.7. In Weidner v. Armenakis, the Oregon Court of Appeals held that under ORS 144.125(3), the board may consider all relevant information in the record when considering whether a prisoner suffers from a severe emotional disturbance. 154 Or.App. 12, 17-18, 959 P.2d 623 (1998), withdrawn by order July 13, 1998, reasoning reaff'd. and readopted in Merrill v. Johnson, 155 Or.App. 295, 964 P.2d 284 (1998); Gordon, 343 Or. at 627.

However, in Peek v. Thompson, the Court of Appeals held that the board's 1988 adoption of OAR 255-60-006(8) requires a formal finding in the psychiatric or psychological evaluation itself as a prerequisite to the board's authority to postpone a prisoner's parole release date. 160 Or.App. 260, 264-66, 980 P.2d 178 (1999); Gordon, 343 Or. at 628-29.[2] Hence, if the board applies the 1988 version of OAR 255-60-006, the psychiatric or psychological report itself must support a determination that petitioner suffers from a severe emotional disturbance. However, if the board applies the rules in effect in 1984, it may rely on all pertinent evidence in the record. See e.g. Gordon, 267 Or.App. at 132-33; Gordon, 266 Or.App. at 414.

II. Petitioner's Parole Board History

• 1984 (First Matrix Election)

On August 1, 1984, petitioner signed an application to receive a firm parole release date under the matrix system, rather than remain under the discretionary system. Resp. Exh. 103 at 76. On that same date, the board held a Personal Review Hearing and, on August 10, 1984, issued a Board Action Form ("BAF") calculating petitioner's matrix range to be 198 to 268 months, and setting a parole release date of March 15, 2000. Id. ; Gordon, 343 Or. at 623.

Petitioner filed an appeal. In the process of preparing a transcript for appeal, it was discovered that the August hearing had not been recorded. Resp. Exh. 103 at 77. As a result, the board "voided" its August 10, 1984 BAF, and referred the matter to an "analyst for recomputation of [petitioner's) ...


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