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Bell v. Premo

United States District Court, D. Oregon

July 10, 2015

LARRY D. BELL, Petitioner,
JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.

Anthony D. Bornstein, Assistant Federal Public Defender, Portland, OR, Attorney for Petitioner.

ELLEN F. ROSENBLUM, Attorney General, SAMUEL A. KUBERNICK, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.


OWEN M. PANNER, District Judge.

Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the court DENIES the Petition for Writ of Habeas Corpus.


On November 26, 1986, petitioner was convicted in Multnomah County on one count of first-degree burglary. On that same date, he was convicted in a separate Multnomah County case on one count each of first-degree burglary, second-degree assault, first-degree sodomy, and first-degree rape. The trial judge declared petitioner a "Dangerous Offender" under Or. Rev. Stat. § 161.725 and sentenced him to a series of concurrent and consecutive prison terms, with certain enhancements based on the "Dangerous Offender" finding.

On September 23, 1987, petitioner appeared before the Oregon Board of Parole and Post-Prison Supervision (the "Board") for his initial prison term hearing. At that hearing, the Board voted to "override one 180 month minimum, finding one 180 month minimum and aggravation [to be an] adequate sanction." Resp. Exh. 110. In so doing, the Board applied Or. Admin. R. XXX-XX-XXX (3) (1987), which permitted it to override "one or more" of the judicially imposed consecutive minimum sentences. The prior rule, Or. Admin. R. XXX-XX-XXX (1985), which was in effect at the time Petitioner committed his crimes in 1986, required the Board to treat multiple judicially imposed minimums as a "single unified minimum, " and thus override or uphold all of the judicially imposed minimum consecutive changes. The Board set a parole consideration date of May 13, 2001. Resp. Exh. 110. There is no indication petitioner sought judicial review of that ruling.

In June 2011, petitioner filed a petition for writ of habeas corpus in state court. Appointed counsel subsequently filed a "replication, " which became the operative pleading in that proceeding. In the replication, petitioner asserted his current confinement was unlawful because, inter alia, the Board "erred when it use[d] current rules as opposed to the rules in existence at the time [petitioner] was sentenced (an ex post facto violation), " and that the Board "failed to use [t]he matrix rules in effect when the [petitioner] was sentenced, an ex post facto violation." Resp. Exh. 105, p. 2.

The state filed a motion to dismiss, which the trial judge granted upon finding that there was "no genuine issue of any material fact as to whether the parole board correctly applied the applicable rules and statutes in determining [petitioner's] prison term." Resp. Exh. 108. Petitioner appealed, arguing that the Board violated its own rules when it calculated his sentence; the Board erred by applying the 1987 rule to uphold one of petitioner's minimum term while overriding another. Petitioner expressly stated he was not asserting a constitutional claim. The Oregon Court of Appeals affirmed the habeas trial court's judgment without opinion, and the Oregon Supreme Court denied review. Bell v. Premo, 258 Or.App. 682, 311 P.3d 1252, rev. denied, 354 Or. 490, 317 P.3d 255 (2013).

On February 11, 2014, petitioner filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this court. Petitioner alleges the Board violated his right to be free from ex post facto punishment when it set his prison term. Respondent contends habeas corpus relief should be denied because the petition is untimely, because petitioner procedurally defaulted his ex post facto claim, and because petitioner is not entitled to relief on the merits.


I. Timeliness

A one-year statute of limitations applies to petitioner's habeas petition. It begins to run on the date on which the judgment becomes final by the conclusion of direct review or the expiration of the time for seeking direct review. 28 U.S.C. § 2244 (d) (1). For habeas claims challenging state administrative actions, the limitations period begins to run on "the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence." 28 U.S.C. § 2004). For a petitioner challenging a parole board decision in Oregon, "the federal statute begins to run when the parole administrative process is final." Wrenn v. Nooth, 2011 WL 5999263 (D. Or., Nov. 7, 2011) (citations omitted)

Here, the Board action petitioner challenges occurred during his September 1987 initial prison term hearing when the Board overrode one, but not both, of petitioner's 180-month minimum consecutive sentences. Petitioner could have discovered the factual predicate of his claim at that time. Petitioner's current habeas petition falls well outside the one-year limitations period and, as such, is untimely. Because petitiorier presents no evidence to excuse his untimely filing, habeas corpus relief must ...

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