United States District Court, D. Oregon
OPINION AND ORDER
Aiken United States District Judge
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.
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
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.
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.
now seeks relief pursuant to 28 U.S.C. § 2254.
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).
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.
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.
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.
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. 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.
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