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Templeton v. Coursey

United States District Court, D. Oregon

February 14, 2017

MARK FOREST TEMPLETON, Petitioner,
v.
RICK COURSEY, et al., Respondents.

          Mark Forest Templeton Eastern Oregon Correctional Institution Petitioner, Pro Se

          Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice Attorneys for Respondents

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 in which he appears to challenge the legality of a 2011 decision by the Oregon Board of Parole and Post-Prison Supervision ("Board") deferring his release. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.

         BACKGROUND

         In 1991, petitioner pleaded no-contest to one count of Murder in Umatilla County, and guilty to one count of Conspiracy to Commit Murder. Respondent's Exhibit 103. As a result, the trial court sentenced him to life imprisonment with a 20-year minimum on the Murder conviction, and a consecutive 20-year prison term on the Conspiracy conviction. Respondent's Exhibit 101. Petitioner was not successful in his subsequent direct and post-conviction relief ("PCR") appeals.

         In 2011, the Board determined that petitioner suffered from a present severe emotional disturbance so as to constitute a danger to the health or safety of the community. Respondent's Exhibit 136, pp. 6, 77. As a result, it deferred petitioner's projected release date approximately ten years. Id.,

         On August 26, 2011, petitioner filed a state habeas corpus action in Umatilla County wherein he challenged the Board's decision. Id. at 1-3. The State asked the court to deny the petition as "meritless because it failed to allege sufficient facts to state a claim for habeas corpus relief." Respondent's Exhibit 138, p. 1. Specifically, the State argued that because ORS 144.335 entitled petitioner to direct judicial review of the Board's order, he was not eligible to seek state habeas corpus relief. Id. at 2. The state habeas court granted the motion, finding habeas corpus unavailable under state law where petitioner had other avenues by which to challenge the Board's action. Respondent's Exhibits 140-41.

         Petitioner appealed the state habeas court's dismissal with the assistance of appointed counsel, but counsel could not find any non-frivolous issues for appeal and submitted a Balfour brief on petitioner's behalf.[1] The Oregon Court of Appeals affirmed the state habeas court's decision without opinion, and the Oregon Supreme Court denied review. Templeton v. Coursey, 260 Or.App. 782, 325 P.3d 69, rev. denied, 355 Or. 381, 328 P.3d 697 (2014).

         Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on August 18, 2014. In his Petition, he raises claims pertaining to both the Board's 2011 deferral of his release to parole as well as his underlying criminal convictions. Respondent asks the court to deny relief on the Petition because: (1) any claims pertaining to petitioner's 1991 convictions are untimely and procedurally defaulted; and (2) petitioner failed to fairly present any claims pertaining to the Board's 2011 deferral of his release to parole to Oregon's state courts, leaving those claims procedurally defaulted.

         DISCUSSION

         I. Claims Arising from Petitioner7 s Convictions

         The cover page of the Petition for Writ of Habeas Corpus purports to challenge petitioner's 1991 convictions. Petition (#2), p. 1. Indeed, the majority of the claims in his Petition attack those convictions. Specifically, petitioner alleges that: (1) his direct appellate counsel altered his criminal judgment (Ground Two); (2) the prosecution refused to provide him with any discovery until four years after he entered his pleas (Ground Three); (3) his criminal trial judge did not take a proper oath of office (Ground Four); (4) his indictments were unlawful (Ground Five); (5) law enforcement personnel tampered with evidence and witnesses (Ground Six); and (6) his trial attorney improperly allowed him to enter into plea bargains despite his innocence (Ground Seven).

         In his supporting memoranda, however, petitioner advises the court that he does not seek to challenge his convictions or sentence. Memo in Support (#43), p. 2; Memo in Support (#44), p. 2. Instead, he asserts that he wishes to challenge "the multiple court ordered plea agreement contract violations." Id. Because the Petition appears to place the legality of ...


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