PAUL J. MANEY, Petitioner,
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent
Argued and Submitted July 29, 2014
Board of Parole and Post-Prison Supervision.
Zachary Lovett Mazer, Deputy Public Defender, argued the cause for petitioner. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[272 Or.App. 117] HADLOCK, J.
In 1980, one of the sentences that could be imposed on individuals convicted of aggravated murder was life imprisonment " to be served without the possibility of parole for 20 years." Severy/Wilson v. Board of Parole, 349 Or. 461, 468, 245 P.3d 119 (2010); see ORS 163.105(2) (1979) (describing sentence). When at least fifteen years have passed after imposition of such a sentence on a person convicted of aggravated murder, that person--now an inmate--may petition the Board of Parole and Post-Prison Supervision for a " murder review hearing," at which the inmate has the burden of proving by a preponderance of evidence that he or she " is likely to be rehabilitated within a reasonable period of time." ORS 163.105(3) (1979) (describing murder review process available to a prisoner upon petition); see Lopez v. Mills, 249 Or.App. 674, 676 n 3, 278 P.3d 94, rev den, 352 Or. 665, 293 P.3d 226 (2012) (explaining the term " murder review hearing" ). If the inmate meets that burden, the board will enter an order changing the terms of the inmate's confinement to " life imprisonment with the possibility of parole, or work release." ORS 163.105(4) (1979). This case presents the question of whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the board to grant an inmate's request for a psychological evaluation in conjunction with a murder review hearing. For the reasons set forth below, we conclude that it does not. Because petitioner's contrary argument forms the primary basis for his challenge to the board order at issue, we affirm.
The background facts are mostly procedural and undisputed. Petitioner was arrested for theft in late 1979 after a store security guard accused him of shoplifting. In early 1980, petitioner returned to the store, waited outside until the guard left the store at the end of the work day, and then fatally shot the guard with a rifle. Petitioner was convicted of aggravated murder and sentenced to life imprisonment with a minimum term of incarceration of 20 years without possibility
of parole, pursuant to ORS 163.105(2) [272 Or.App. 118] (1979). The trial court ordered that sentence to run consecutively to sentences that petitioner already had on recent robbery and burglary convictions. Starting in the late 1990s, the board periodically held murder review hearings to determine whether petitioner was " likely to be rehabilitated within a reasonable period of time." The board received an independent psychological evaluation of petitioner in conjunction with a 1997 murder review hearing; after that hearing, the board found that petitioner was not likely to be rehabilitated within a reasonable period of time. The board made a similar finding in 2002. The board held another murder review hearing in 2007 at which it received into evidence " a packet of materials related to [petitioner's] crime, psychological evaluations, court documents, and records of [272 Or.App. 119] the Department of Corrections." In addition, petitioner submitted 13 exhibits, including evidence of his participation in prison programs, his plan for release, and letters of recommendation. In the final order that issued after that hearing, the board observed that petitioner had asked the board to pay for a new psychological evaluation. The board rejected that request. Petitioner petitioned for judicial review; we affirmed the board's order without opinion, and the Supreme Court denied review. Maney v. Board of Parole, 258 Or.App. 534, 311 P.3d 527 (2013), rev den, 354 Or. 814, 325 P.3d 33 (2014).
Another murder review hearing was scheduled for November 2010. The hearing notice issued by the board informed petitioner that the hearing would be conducted in the manner prescribed by ORS 163.105 or ORS 163.115, and pursuant to the administrative rules found in OAR chapter 255, division 32. The notice also set out a nonexclusive list of criteria, as described in OAR 255-032-0020, that could indicate whether an inmate is likely to be rehabilitated. The notice informed petitioner that the board would appoint and pay for an attorney if petitioner wanted one but could not afford to pay. Regarding the presentation of evidence, the notice specified that discovery was not permitted and that it was petitioner's responsibility to provide the board with any information that he wanted it to consider at the hearing, although the board might subpoena witnesses on his behalf upon a proper showing.
Before the hearing, petitioner asked that the board " order a psychological evaluation of [petitioner]" to give him an " opportunity to demonstrate that his mental state has improved." In response, the board first observed that no law required it to " create evidence on the request of the petitioner." The board also declined to exercise its discretion to order a psychological evaluation and, therefore, denied petitioner's request.
The record before the board at the 2010 hearing included the judgment, pre-sentence investigation, and other materials associated with petitioner's aggravated murder conviction; psychological evaluations from 1981 and 1997; and copies of other board orders and Department of Corrections (DOC) materials related to petitioner's incarceration and [272 Or.App. 120] previous murder review hearings. Petitioner, who was represented by counsel, submitted a hearing memorandum supported by several exhibits, including letters of support and thanks from prison employees, volunteers, and visitors; DOC documents reflecting petitioner's compliant behavior and prison activities; positive " inmate performance reports" ; and petitioner's written parole plan. In addition, petitioner called several witnesses at the 2010 murder review hearing, including a person who had worked " essentially as a correctional ...