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Gordon v. Premo

United States District Court, D. Oregon

November 20, 2017

DENNIS GORDON, Petitioner,
v.
JEFF PREMO, Respondent.

          Anthony D. Bornstein Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Attorneys for Respondent

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging a 2011 decision by the Oregon Board of Parole and Post-Prison Supervision ("Board") to defer his projected parole release date by ten years. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.

         BACKGROUND

         In 1975, Petitioner committed a particularly gruesome murder involving his prior rape victim. He ultimately pleaded guilty to rape and murder and was sentenced to life on the murder conviction, and twenty consecutive years on the rape conviction.

         Historically, Oregon inmates have received parole consideration hearings every two years. However, in 2009, the Oregon legislature amended ORS 144.228 to allow the Board the discretion to postpone an inmate's parole consideration by up to 10 years. The Board applied this new law to Petitioner in 2011 when it deferred his release by 10 years. On February 9, 2011, the Board held a hearing and issued Board Action Form #18 as follows:

The Board has received a psychological evaluation on inmate dated 12/6/2010.
Based on the doctor's report and diagnosis, coupled with all the information that the Board is considering, the Board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community.
The Board has considered this matter under the substantive standard in effect at the time the inmate opted into the matrix system, 08/01/1984, and all other applicable rules and laws, The Board further finds that it is not reasonable to expect that you will be granted a firm release date before 10 years from your current projected release date. Therefore the Board is deferring your projected release date and establishing a new projected release date of 08/15/2021 following a total of 551 months. A review will be scheduled in 02/2021, with a current psychological evaluation.

         Respondent's Exhibit 103, p. 265.

         Petitioner applied for administrative review where he alleged that the 10-year deferral of his parole constituted an ex post facto violation. The Board rejected the administrative appeal:

Because you demonstrated no decrease in your criminal thinking, including denial of responsibility, minimization, and lack of empathy, despite over thirty years of incarceration, the Board concluded that it is unlikely that you will show sufficient change in two years to justify it in affirming your projected parole date. Thus, the board finds that it did not err in applying the 2009 statutory changes because the risk of increasing punishment for your crime is minimal and speculative at best. The significance of your argument is diminished by the existence of convictions that permit the state to imprison you for life plus twenty years. The changes regarding scheduling or hearings are procedural, do not authorize greater punishment, and do not substantially alter your rights. In any case, the Board notes that ...

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