United States District Court, D. Oregon, Eugene Division
JON Q. JOHNSTON, Petitioner,
GARRETT LANEY, Respondent.
FINDINGS AND RECOMMENDATION
Yim You United States Magistrate Judge
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.
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.
14, 2016, petitioner appeared before the Oregon Board of
Parole and Post-Prison Supervision (the “Board”)
for an exit interview hearing. Prior to the hearing, petitioner
participated in three psychological
evaluations. 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.
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.
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.
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).
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. 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).
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).
Ex Post Facto
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