United States District Court, D. Oregon
OPINION AND ORDER
M. King United States District Judge
an inmate at the Eastern Oregon Correctional Institution,
brings this habeas corpus proceeding pursuant to 28 U.S.C.
§ 2254, challenging the Oregon Board of Parole and
Post-Prison Supervision's holding in a murder review
hearing that he is not capable of rehabilitation within a
reasonable period of time. For the reasons set forth below,
this Court denies Petitioner's Habeas Petition (ECF No.
December 19, 1986, Petitioner pled guilty to a single count
of Aggravated Murder. Resp't Ex. 101. His conviction
arose out of the murders of Petitioner's estranged
girlfriend (Sarah Mishler) and her father (Frank Mishler).
The trial court sentenced Petitioner to a life sentence, with
a minimum thirty-year term of incarceration without the
possibility of parole, release on work release, or any form
of temporary leave or employment. Id. at 3-4.
March 9, 2010, Petitioner filed a petition for a murder
review hearing pursuant to Or. Rev. Stat. § 163.105,
seeking to change the terms of his confinement to life
imprisonment with the possibility of parole, release to
post-prison supervision, or work release. Resp't Ex. 105
at 154; see Or. Rev. Stat. § 163.105(2). Prior
to the hearing, the Oregon Board of Parole and Post-Prison
Supervision (Board) provided Petitioner with a "Hearing
Notice & Notice of Rights Packet." Resp't Ex.
105 at 5-10, 157.
November 10, 2010, Petitioner appeared before the Board for
his review hearing. Resp't Ex. 105 at 155-331. Petitioner
was represented by counsel, offered documentary evidence, and
testified concerning the details of his crime, his
disciplinary record, and the steps he has taken to
rehabilitate himself. Id. at 191-310.
Petitioner's mother, a Washington County Deputy District
Attorney, and victim representative Gary Scrutton also
conclusion of the hearing, the Board issued Board Action Form
(BAF) #4 holding that Petitioner "is not likely to be
rehabilitated within a reasonable period of time, " and
that he "can petition for a change in the terms of
confinement in no less than four years.'"
Resp't Ex. 105 at 333 (emphasis added). In its formal
Order, the Board elaborated that Petitioner (1) is unlikely
to conform his conduct to the rules of the community; (2) has
an unrealistic and short-sighted attitude towards the role of
alcohol in the crime, (3) has not established "a
baseline for reformation;" and (4) does not understand
the impact of his actions on the lives of the victims'
family. Id. at 339-41. The Board explained:
The Board concludes that offender has not met his burden of
proof under ORS 163.105 and has not established that he is
capable of rehabilitation within a reasonable period of time,
and also finds that it is not reasonable to expect that
offender would be granted a change in the terms of
confinement before four years from the date the petition is
denied. The Board considered the factors set out in OAR
255-032-0020 and in OAR 255-062-0016.
1. Offender's disciplinary history is poor. Inmate's
recent period of clean conduct is unfortunately overshadowed
by a lengthy history of serious institutional misconduct,
including multiple incidents of assaultive conduct. Most
notable to the Board is that inmate displayed an attitude of
hostility, lack of accountability, and minimization towards
his disciplinary infractions, as well as a sense of
victimization that he appeared to feel as a result of the
institutional hearings process. . . .
2. Inmate testified that prior to committing the murders he
had been consuming alcohol .... However, inmate is
disturbingly indifferent to the role alcohol may play in his
life as a trigger for future misconduct. . . .
3. Offender's written submissions and testimony reveal a
troubling failure to candidly confront the facts of his crime
and come to terms with his responsibility for it.....
Offender's account of the events surrounding the crime
lacks credibility. . ..
.... The Board concludes that offender is unable to provide a
coherent account of his crime, and to rigorously examine and
confront the psychological and emotional factors that led him
to commit (or at least facilitated the commission of) the
murders. He maintains consistent denial of responsibility and
deflection of blame.
4. Finally, the Board finds that offender expressed very
little empathy or remorse in ...