United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE
a former inmate at Oregon State Correctional Institution,
brought this habeas corpus action pursuant to 28 U.S.C.
§ 2254. Petitioner alleges that his right to procedural
due process was violated in 2016, when the Oregon Board of
Parole and Post-Prison Supervision (the Board) deferred his
parole release date for twenty-four months. Because
Petitioner's release from custody has rendered his
petition moot, and because he was afforded adequate process
by the Board, the petition is denied and this case is
1987, petitioner was convicted of Aggravated Murder, Felony
Murder, Robbery in the First Degree, and Kidnapping in the
First Degree. With respect to the Aggravated Murder and
Felony Murder convictions, Petitioner was sentenced to a life
term with the possibility of parole after thirty years
served. On the remaining counts he received consecutive
20-year indeterminate terms, each with a ten-year minimum.
Resp't Ex. 101.
2008, the Board found that petitioner was likely to be
rehabilitated in a reasonable period of time. In 2011, the
Board set a projected parole release date of July 22, 2016.
Resp't Ex. 102 at 7. On January 19, 2016, the Board held
a parole review hearing and deferred petitioner's
projected release date to July 22, 2018, based on its finding
that petitioner suffered “from a present severe
emotional disturbance that constitutes a danger to the health
or safety of the community.” Resp't Ex. 102 at 5.
Petitioner sought administrative and judicial review of the
Board's decision, and petitioner's claims were
denied. Resp't Ex. 102 at 7-9; Resp't Exs. 108-09.
December 27, 2017, petitioner filed the instant federal
habeas petition. He alleges that: 1) the Board's decision
was not supported by a psychological diagnosis sufficient to
warrant the deferral of parole; 2) the Board failed to
adequately state the reasons for its decision; 3) the Board
erroneously relied on hearsay statements contained in a
presentence investigation report and a psychological
evaluation; 4) the Board's decision was not supported by
substantial evidence; and 5) the Board erroneously relied on
inaccurate psychological testing. Pet at 5-15 (ECF No. 2).
Petitioner asks that this Court vacate the order of the Board
and issue other appropriate relief.
response to the petition, respondent maintains that
petitioner's release on July 20, 2018 renders his §
2254 challenge moot. See e.g., Burnett v. Lampert,
432 F.3d 996, 999-1000 (9th Cir. 2005). Petitioner has not
filed a supporting brief in support of his petition or
otherwise refuted respondent's assertions. I also note
that mail addressed to petitioner was returned on September
14, 2018 and marked “Not an Oregon inmate.” (ECF
No. 26); see L.R. 83-12 (authorizing dismissal when
the failure to update an address continues for sixty days).
review of the record, I agree that petitioner's claims
are moot. “The jurisdiction of federal courts depends
on the existence of a ‘case or controversy' under
Article III of the Constitution.” GTE Cal., Inc. v.
Fed. Commc'n Comm'n, 39 F.3d 940, 945 (9th Cir.
1994). A claim is considered moot if it has lost its
character as an actual, “live” controversy, and
if no effective relief can be granted. Id. To
determine whether a claim is moot, the court must consider
changing circumstances that arise after the action is filed.
Am. Civil Liberties Union v. Lomax, 471 F.3d 1010,
1016 (9th Cir. 2006). Based on petitioner's release from
custody after his petition was filed, it is unclear how this
Court could fashion any type of meaningful relief in this
case; particularly when petitioner does not challenge his
underlying conviction or the lawfulness of any continuing
supervision. Burnett, 423 F.3d at 999-1000 (finding
that the petitioner's challenge to the deferral of parole
was moot after his subsequent release and reincarceration,
when the petitioner did not challenge the legality of his
original conviction or allege that he suffered “from
any collateral consequences as a result of the deferral of
his parole release date”).
petitioner's claims were not moot, they fail on the
merits. The procedures necessary to satisfy due process
requirements in the parole context are minimal and include
only the opportunity to be heard and a statement of reasons
explaining why parole was denied. Swarthout v.
Cooke, 562 U.S. 216, 220-221 (2011). “Because the
only federal right at issue is procedural, the relevant
inquiry is what process [the petitioner] received, not
whether the state court decided the case correctly.”
Id. at 222. Here, petitioner received at least the
minimal amount of process he was due: he received notice of
the parole review hearing, he had an opportunity to be heard
before and during the hearing, and the Board provided a
statement explaining its decision to defer petitioner's
parole release date. Resp't Ex. 102 at 2-9; Ex. 103 at
63-72, 75-133. To the extent petitioner raises a challenge to
the Board's implementation of Oregon law, it is well
established that federal habeas relief is not available to
remedy alleged violations of state law. See
Swarthout, 562 U.S. at 222 (reiterating that “a
‘mere error of state law' is not a denial of due
process”) (citations omitted).
petitioner is not entitled to federal habeas relief.
Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED and
this case is DISMISSED. A Certificate of Appealability is
denied on the basis that petitioner has not made a
substantial showing of the denial of ...