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Smith v. Hill

United States District Court, D. Oregon

September 12, 2017

ARLEN PORTER SMITH, Petitioner,
v.
JEAN HILL, Respondent. ARLEN PORTER SMITH, Petitioner,
v.
JOHN MYRICK, Respondent,

          TONI L. MORO Attorney for Petitioner.

          ELLEN F. ROSENBLUM Attorney General KRISTEN E. BOYD Assistant Attorney General Attorneys for Respondents.

          OPINION AND ORDER

          ANNA J. BROWN United States Senior District Judge.

         Petitioner, an inmate at the Snake River Correctional Institution, brings these habeas corpus proceedings challenging decisions of the Oregon Board of Parole and Post-Prison Supervision (the "Board"). Because the cases are procedurally intertwined and share common background facts, the Court addresses both cases in a single Opinion and Order to be filed separately in each case. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (ECF No. 83) in Case No. 3:05-cv-01900-BR and the Petition for Writ of Habeas Corpus (ECF No. 1) in Case No. 2:15-CV-00738-BR are DENIED.

         BACKGROUND

         I. Proceedings Before the Board and the State Courts

         A. The Board's Decision to Deny Restoration of Good Time Credits for the 1991 Jackson County Sentence

         In August 1981, a Jackson County judge sentenced Petitioner on convictions for three counts of Burglary in the First Degree to an indeterminate term of 20 years in prison, with a 90-month minimum.[1] On January 19, 1984, Petitioner was released on parole from his 1981 Jackson County sentence. On February 10, 1984, Petitioner was arrested in Marion County on new criminal charges. On March 6, 1984, the Board revoked Petitioner's parole on the 1981 Jackson County sentence based on his new criminal activity in Marion County.

         Petitioner was ultimately convicted on December 10, 1984, of the 1984 Marion County offenses. In particular, Petitioner was convicted of two counts of Robbery in the First Degree and one count each of Unauthorized Use of a Vehicle, Kidnaping in the First Degree, and Attempted Kidnaping in the First Degree, The Marion County trial judge sentenced Petitioner as a dangerous offender to an additional 105 years in prison, to run consecutive to the 1981 Jackson County sentence.

         At the time Petitioner's parole on the 1981 Jackson County sentence was revoked on March 6, 1984, Oregon law provided as follows.

(2) When a paroled inmate violates any conditions of parole, no deduction from the term of sentence, as provided in subsection (1) of this section [providing for the deduction of time from an inmate's sentence for good time], shall be made for service by such inmate in the penal or correctional institution prior to acceptance and release on parole, except when authorized by the State Board of Parole upon recommendation of the superintendent thereof.

Or. Rev. Stat. § 421.120(2) (1983) (emphasis added).

         The relevant administrative rules then in effect gave the Board unfettered discretion whether or not to restore forfeited good time credit based on the recommendation of the superintendent. Or. R. Admin. P. 291-100-018 (effective 11-4-83) provided, in pertinent part:

3. Credit to Parole Violator for Good Time Earned Prior to Parole Release
a. Upon return from parole, designated staff in the Corrections Division facility to which the parolee is returned, will as quickly as possible prepare a report for the superintendent's signature which will be forwarded by the superintendent to the Parole Board Chairperson with a recommendation for restoration or non-restoration of Good Time credits accrued by the inmate prior to his/her release from parole.
b. A favorable recommendation will be made if a review of the inmate's file reflects he/she would more than likely have been credited with the Good Time had the individual not been paroled.
c. It is the prerogative of the Parole Board to approve or disapprove all recommendations.

(Emphasis added.) Under Or. R. Admin. P. 255-75-085 (1979):

(2) At the future disposition hearing, the Board may;
(a) Set a new parole release date according to the guidelines in rule 255-75-085 and choose not to give credit for statutory good time earned until suspension of parole; or
(b) Deny further parole consideration, according to the guidelines in rule 255-75-090, and return all or part of the statutory good time to which the prisoner is entitled.

(Emphasis added).

         In July 1984, the Board conducted a "future disposition hearing" and, based upon a finding of new criminal conduct in Marion County in February 1984, the Board ordered that Petitioner be re-paroled on his 1981 Jackson County sentence on February 1, 1985, at which time the 1984 Marion County sentence would commence. The Board's order did not address Petitioner's good time credits.

         Shortly after Petitioner's return to prison in 1984, the institution superintendent recommended restoration of 334 days of previously earned good time credit toward Petitioner's 1981 Jackson County sentence. It appears from the record that the Board was not aware of this recommendation and, in any event, the Board did not act on it for some years.

         In January 2001, before he was aware of the 1984 recommendation for restoration of good time credit for the 1981 Jackson County conviction, Petitioner filed a petition for alternative writ of mandamus in state court seeking an order requiring the superintendent to perform the statutory duty of making a recommendation to the Board on the restoration of good time credits. The trial court dismissed the mandamus proceeding on the state's motion. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Smith v. Hill, 195 Or.App. 546, 99 P.3d 1239 (2004), rev. denied, 338 Or. 583, 114 P.3d 504 (2005).

         While the appeal from the dismissal of the mandamus petition was pending, the superintendent in 2003 issued a new, contrary recommendation that Petitioner's good time credits on his 1981 Jackson County conviction not be restored. On June 16, 2003, the Board denied the restoration of good time credits in Board Action Form ("BAF") #7. Petitioner sought administrative review, but on December 19, 2006, the Board issued Administrative Review Response ("ARR") #3 denying Petitioner's request.

         Petitioner sought judicial review of the Board's decision set forth in BAF #7. As a result of the judical review of BAF #7 and the discovery of the 1984 DOC memorandum recommending reinstatement of Petitioner's good time credits, the Oregon appellate commissioner granted a Board motion to establish a new due date for a new board order to address the 1984 DOC memorandum. The Board scheduled an administrative review hearing for December 10, 2008, to consider the 1984 memorandum recommending restoration, and to decide whether Petitioner was entitled to the restoration of good time credits. The Board described the purpose of the hearing in BAF #14:

The purpose of the hearing is to allow offender to present any information that he feels is relevant to whether the Board should return all or part of his statutory good time credits and to give the Board the opportunity to deliberate based on a complete record.
After the hearing, the Board will issue a new BAF regarding restoration of offender's good time credits, which will be subject to administrative and judicial review in the normal course.
For convenience, the board sets out the applicable standard in this order:
(2) At the future disposition hearing, the Board may.
(a) Set a new parole release date according to the guidelines in the rule 255-75-085 and choose not to give credit for statutory good time earned until suspension of parole; or
(b) Deny further parole consideration, according to the guidelines in rule 255-75-090, and return all or part of the statutory good time to which the prisoner is entitled.
To recapitulate, the AR hearing is solely for the Board to consider the 1984 memorandum, as clarified by OISC, and to apply the standard set out [in] OAR 255-75-085 (permanent effective February 1, 1979) [sic].

Resp. Exh. 128, pp. 62-63.

         Petitioner appeared at the "administrative review" hearing on December 10, 2008, accompanied by counsel. Following the hearing, the Board denied restoration of the previously forfeited good time credits in BAF #15, stating:

As explained more fully in Board Action Form (BAF) #14, dated September 15, 2008, the Board scheduled this administrative review (AR) hearing to make a decision on the recently received 1984 memorandum regarding the restoration of offender's good time credit (with the added clarification that 369 days are available for restoration).
After reviewing the entire record, which includes a positive recommendation of forfeited goodtime credits from 1984, and applying OAR 255-75-085 (permanent effective February 1, 1979) as well as all applicable rules and laws, the Board unanimously denies restoration of forfeited good time credits.

Resp. Exh. 128, p. 4 91. Petitioner sought judicial review of BAF #15/ but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Smith v. Hill, 245 Or.App. 504, 260 P.3d 856 (2011), rev. denied, 352 Or. 107, 284 P.3d 485 (2012). As a result, Petitioner did not receive additional good time credit against his 1981 Jackson County sentence.

         B. The 2001 Board Decision Deferring Release on the 1984 Marion County ...


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