United States District Court, D. Oregon
Martin Jacobs Attorney for Petitioner
F. Rosenblum, Attorney General, James M. Aaron, Assistant
Attorney General Attorneys for Respondent
OPINION AND ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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).
Viability of Ex Post Facto Claims
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 ...