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Johnston v. Laney

United States District Court, D. Oregon, Eugene Division

September 11, 2019

JON Q. JOHNSTON, Petitioner,
GARRETT LANEY, Respondent.


          Youlee Yim You United States Magistrate Judge

         Petitioner, an inmate at the Oregon State Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his denial of parole in 2016. ECF No. 2. For the reasons that follow, the Petition for Writ of Habeas Corpus should be DENIED.


         In March 1992, petitioner pleaded guilty in Umatilla County Circuit Court to two counts of aggravated murder. Resp. Exh. 101. The trial court sentenced petitioner to consecutive life sentences, with a minimum term of 30 years of imprisonment on each conviction. Id.

         On June 14, 2016, petitioner appeared before the Oregon Board of Parole and Post-Prison Supervision (the “Board”) for an exit interview[1] hearing. Prior to the hearing, petitioner participated in three psychological evaluations.[2] Petitioner testified at the hearing, as did a support person for petitioner. Members of the victims' families and the Umatilla County District Attorney also appeared and testified.

         At the conclusion of the hearing, the Board took the matter under advisement. On June 27, 2016, the Board issued Board Action Form (“BAF”) #5. In it, the Board concluded that petitioner suffered from a “present and severe emotional disturbance that constitutes a danger to the health or safety of the community.” Consequently, the Board deferred petitioner's release date “for 24 months for a projected parole release date of 12/06/2018, for a total of 342 months.” The Board also indicated that a further review would be scheduled in June 2018, with an updated psychological evaluation.

         Petitioner sought administrative review of BAF #5, asserting it was inconsistent with a number of state statutes and rules and the ex post facto clauses of the Oregon and United States Constitutions, it was not supported by “substantial evidence, ” and it was not supported by “substantial reason.” In response, the Board issued Administrative Review Response (“ARR”) #3. The Board rejected petitioner's arguments and advised him he had exhausted his administrative remedies such that he could properly petition for judicial review.

         Petitioner sought judicial review in the Oregon Court of Appeals. There, petitioner argued the Board lacked authority to postpone his parole release date because “the psychological evaluation report[s] the Board relied upon [did] not contain a prerequisite foundational diagnosis, ” and the Board improperly postponed his parole release date “upon evidence outside the psychological evaluation reports, in violation of Board rules.” The Oregon Court of Appeals affirmed the Board's ruling without opinion, and the Oregon Supreme Court denied a petition for review. Johnson v. Board of Parole and Post-Prison Supervision, 287 Or.App. 696 (2017), rev. denied, 362 Or. 482 (2018).

         On March 22, 2018, petitioner filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this court. Petitioner contends that the Board's decision violates the constitutional prohibition against ex post facto punishment and his rights under the Due Process Clause.[3] Respondent argues that petitioner procedurally defaulted both claims for relief because he addressed only state law claims in his appeal and, in any event, he cannot demonstrate that the Board's ruling was contrary to or an unreasonable application of clearly established United States Supreme Court precedent. Because it is apparent that petitioner is not entitled to relief on the merits of his claims, it is unnecessary to address the issue of procedural default. See 28 U.S.C. § 2254(b)(2) (“[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”); Runningeagle v. Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion afforded under § 2254(b) (2) to decline to address procedural default issue where relief denied on the merits), cert. denied, 133 S.Ct. 2766 (2013).


         Pursuant to 28 U.S.C. § 2254(d), a petition for writ of habeas corpus filed by a state prisoner shall not be granted, with respect to any claim that was adjudicated on the merits in state court, unless the adjudication resulted in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1) & (2); Harrington v. Richter, 562 U.S. 86, 100 (2011); White v. Woodall, 134 S.Ct. 1697, 1702 (2014).


         I. Ex Post Facto

         Petitioner alleges the Board violated his rights under the Ex Post Facto Clause by applying administrative rules that were enacted after the date of his crime in denying him release on parole. The Ex Post Facto Clause prohibits states from enacting laws that, by retroactive operation, increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 250 (2000). A law violates the Ex Post Facto Clause if: (1) it “appl[ies] to events occurring before its enactment, ” Weaver v. Graham, 450 U.S. 24, 29 (1981); and (2) “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Calif. Dep't. of Corr. v. Morales, 514 U.S. 499, 504 (1995). There is ...

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