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Bell v. Oregon Board of Parole And Post-Prison Supervision

United States District Court, D. Oregon

August 9, 2018

FLOYD WAYNE BELL, Petitioner,
v.
OREGON BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that the Oregon Board of Parole and Post-Prison Supervision (the Board) violated his federal constitutional rights when it deferred his parole consideration date for 120 months. Petitioner seeks an order releasing him from custody. For the reasons explained below, the petition is denied.

         I. BACKGROUND

         In 1989, petitioner was convicted in two separate cases of several sexual assault and sex abuse offenses. One sentencing court found petitioner to be a "dangerous offender" based on its finding that petitioner "suffers from a severe personality disorder which causes the defendant to have the propensity to commit future crimes of violence against persons." Resp't Ex. 101 at 4-5; see also Or. Rev. Stat. § 161.725(1) (dangerous offender statute).

         In July 2013, the Board conducted a parole-consideration hearing to determine whether an initial parole release date should be set in petitioner's case. Resp't Ex. 103 at 80-81. Based on the evidence of record, the Board found that petitioner had a "mental or emotional disturbance, deficiency, condition, or disorder predisposing" him to criminal activity and rendering him "a danger or menace to the health or safety of others." Resp't Ex. 103 at 122. The Board further found that it was not reasonable to expect that petitioner would be granted a release date before ten years from the current date. Resp't Ex. 103 at 122-23. As a result of these findings, the Board deferred petitioner's parole consideration date for 120 months, "for a firm parole date of June 7, 2023 following ten years." Resp't Ex. 103 at 123. The Board also explained that petitioner had "the right to request an interim hearing not earlier than two years from [the Board's decision], for the purpose of demonstrating that there is reasonable cause to believe that you may be granted a change in the terms of confinement." Resp't Ex. 103 at 128.

         Petitioner sought administrative review, and the Board rejected his arguments. Resp't Ex. 102 at 7-10. Petitioner then sought judicial review with the Oregon Court of Appeals. Resp't Ex. 105. The Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 112-113.

         Petitioner now seeks relief pursuant to 28 U.S.C. § 2254.

         II. DISCUSSION

         Petitioner argues that the Board violated the Ex Post Facto Clause by deferring his parole for 120 months pursuant to an amended version of Or. Rev. Stat. § 144.125(3). Petitioner argues that the Board should have applied the 1989 version of § 144.125, which allegedly would have allowed the Board to defer parole on grounds of community safety only if petitioner had received a formal "diagnosis" of a "present severe emotional disturbance." Petitioner maintains that the examining psychologists did not render a "diagnosis" of a "present severe emotional disturbance" and the Board must have relied on the "modified" statutory standard when deferring his parole. See generally Pet. at 6-9 (ECF No. 1) and Pet'r Addendum at 2-3 (ECF No. 21).

         As an initial matter, the Board did not apply § 144.125 when it deferred petitioner's parole date. Resp't Ex. 102 at 8 ("The Board did not err by applying the incorrect version of ORS 144.125(3), because ORS 144.125(3) was not the statute that governed your parole consideration hearing. Rather, ORS 144.226 (1968) and ORS 144.228 (1988) governed your parole consideration hearing."). Accordingly, I find petitioner's arguments regarding § 144.125 to be without merit.

         To the extent petitioner argues that the Board's deferral of parole under §§ 144.226 or 144.228 violates the Ex Post Facto Clause, his arguments have been rejected.

         In cases of dangerous offenders, the Board conducts a parole-consideration hearing to determine whether it should set an initial parole release date. Or. Rev. Stat. § 144.228(1)(a). Within 120 days of the hearing, a psychiatrist or psychologist appointed by the Board must examine the offender and indicate "whether or not in the psychiatrist's or psychologist's opinion the convicted person has mental retardation or any mental or emotional disturbance, condition or disorder predisposing the person to the commission of any crime to a degree rendering the examined person a danger to the health or safety of others." Id. § 144.226(1), (2). The Board must set a parole release date if it "finds the prisoner no longer dangerous" or "can be adequately controlled with supervision and mental health treatment." Id. § 144.228(1)(b)(A). "If the board is unable to make such findings, a review will be conducted no less than two years, and no more than 10 years, from the date of the previous review." Id. The Board "may not grant the prisoner a review hearing that is more than two years from the date of the previous hearing unless the board finds that it is not reasonable to expect that the prisoner would be granted a release date before the date of the subsequent hearing." Id. § 144.228(1)(b)(B). In other words, the Board may defer parole consideration hearings for up to ten years if the Board finds that the prisoner 1) remains dangerous and cannot be adequately controlled, and 2) would not reasonably be expected to be granted a release date before the specified deferral period.

         To establish an ex post facto violation, petitioner must show that the Board's application of §§ 144.226 and 144.228 created "a sufficient risk of increasing the measure of punishment attached to [petitioner's] crimes." Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509 (1995); see also Garner v. Jones, 529 U.S. 244, 251 (2000) (a retroactive procedural change violates the Ex Post Facto Clause when it "creates a significant risk of prolonging [an inmate's] incarceration."). A "speculative" or "attenuated" risk of prolonged incarceration is insufficient to establish an ex post facto claim. Morales, 514 U.S. at 509.[1] Notably, the Supreme Court and Ninth Circuit have held that retroactive application of statutes or regulations decreasing the frequency of parole review hearings for certain offenders does not implicate the prohibition against ex post facto laws.

         In Morales, the Supreme Court rejected an ex post facto challenge based on a statutory amendment that changed the frequency of parole suitability hearings from every year to up to three years. Morales, 514 U.S. at 503. The Court found that the amendment did not increase the applicable sentencing range for an offense, did not change the dates of initial parole hearings, and did not change the standards to determine parole eligibility. Id. at 507. Rather, the amendment simply "introduced the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that respondent would be deemed suitable for parole in the ...


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