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Jacobs v. Kelly

United States District Court, D. Oregon

October 31, 2019

BRANDON KELLY, Respondent.

          Shayne Martin Jacobs Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General, James M. Aaron, Assistant Attorney General Attorneys for Respondent



         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of a December 2010 decision by the Oregon Board of Parole and Post-Prison Supervision ("Board") to defer his release for a period of five years. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) is denied.


         In 1981, Petitioner pled guilty to one count of Murder and one count of Felony Murder in Clackamas County, resulting in two consecutive life sentences. In 2005, the Board established a projected parole release date of July 7, 2009. Respondent's Exhibit 114, p. 44. However, at a December 2008 exit interview, the Board concluded that Petitioner suffered from a present severe emotional disturbance that rendered him a danger to the health or safety of the community. As a result, it deferred Petitioner's release for two years. Id. at 58. The Board made an identical finding of severe emotional disturbance during Petitioner's December 2010 exit interview and elected to apply a new statute (ORS 144.125 (2009)) that provided it with greater latitude in scheduling projected release dates. Using the new statute, the Board deferred Petitioner's release for five years and established a new parole release date of June 7, 2016. Id. at 63.

         Petitioner sought administrative review of the Board's decision, but the Board denied relief. Id. at 159-66, 178-81. Petitioner appealed that decision to the Oregon Court of Appeals where, with the assistance of counsel, he argued that the Board violated his ex post facto rights when it retroactively applied ORS 144.125 (2009) and related administrative rules that were more onerous than those in effect at the time Petitioner committed his crimes. Respondent's Exhibit 116. The Oregon Court of Appeals affirmed the Board's decision without issuing a written opinion, and the Oregon Supreme Court later denied review. Respondent's Exhibits 120, 121.

         Petitioner also filed a parallel state habeas corpus proceeding which the Marion County Circuit Court denied on procedural grounds, finding that Petitioner's remedy lay in a direct appeal, not a state habeas corpus proceeding. Respondent's Exhibit 106. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Respondent's Exhibits 111, 112.

         On March 7, 2019, Petitioner filed this federal habeas corpus action in which he raises a variety of challenges to the Board's December 2010 decision. Respondent asks the Court to deny relief on the Petition because: (1) Petitioner fails to satisfy the pleading standards applicable to this case; (2) ex post facto claims are not cognizable in federal habeas corpus cases and, even if they are, any such claim lacks merit; and (3) Petitioner's remaining claims are procedurally defaulted.


         I. Pleading Standards

         Respondent argues that Petitioner does not clearly articulate his grounds for relief and supporting facts as required by Rule 2(c) of the Rules Governing Section 2254 Cases. A review of the pro se Petition reveals that Petitioner diligently attempted to reproduce the claims he believes he raised in his underlying state habeas and judicial review proceedings. These claims include allegations that the Board violated the Ex Post Facto Clause, his right to due process, right to equal protection, and his right to be free from cruel and unusual punishment. Although these claims are principally identified in the procedural history portion of his Petition, the Petition asks this Court to grant relief on the claims he raised in his state-court proceedings which Petitioner articulated above. Petition (#1) at 6-7. Given that Petitioner is proceeding pro se, a liberal reading of the Petition leads to the Court to conclude that he adequately pled his claims. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (requiring liberal construction of pro se pleadings).

         II. Viability of Ex Post Facto Claims

         Based upon the Court's liberal construction of the Petition, the pleading includes the ex post facto claims Petitioner argued during his direct judicial appeal. Specifically, Petitioner argued that the retroactive application of ORS 144.125 (2009) and related administrative rules allowed the Board to: (1) postpone his release date for a longer duration than contemplated by the rules in effect at the time he committed his crimes; and (2) consider factors not previously available to it when determining the length of a parole ...

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