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Jenkins v. Amsberry

United States District Court, D. Oregon

November 13, 2019

MICHAEL W. JENKINS, Petitioner,
v.
BRIGITTE AMSBERRY, Respondent.

          Anthony D. Bornstein Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of a decision by the Oregon Board of Parole and Post-Prison Supervision ("Board") to revoke his parole and impose a 18 0-month sanction. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#14) is denied.

         BACKGROUND

         In three separate criminal cases in 1979 and 1980, the Multnomah County Circuit Court sentenced Petitioner to lengthy sentences for a variety of criminal conduct. All of these sentences were of an indeterminate nature because they were imposed pursuant to Oregon's old matrix scheme (which ended in 1989). The Board established a projected parole release date of March 5, 2013.

         While Petitioner was serving his indeterminate sentences, he was convicted in Marion County of supplying contraband and sentenced to 15 months in prison as a guidelines sentence, to be served consecutively to his indeterminate matrix sentences. As a result, when the Board paroled him on March 5, 2013, it did not release him from custody and, instead, paroled him to the service of his indeterminate 15-month sentence.

         While serving his 15-month sentence, Petitioner struck another inmate. This prompted the Board to revoke his parole and set a future disposition hearing for December 11, 2013. At the future disposition hearing, the Board imposed a 180-month sanction based upon Petitioner's parole violation established a new projected release date of August 26, 2018.

         Petitioner availed himself of the administrative appeal procedure, but the Board denied relief. Respondent's Exhibit 102, pp. 4-5. Petitioner then filed a judicial appeal, but the Oregon Court of Appeals affirmed the Board's decision without issuing a written opinion, and the Oregon Supreme Court denied review. Jenkins v. Board of Parole and Post-Prison Supervision, 248 Or.App. 447, 379 P.3d 854, rev. denied, 360 Or.* 422, 392 P.3d 321 (2016) .

         On December 12, 2016, Petitioner filed this habeas corpus case. With the assistance of appointed counsel, Petitioner filed his Amended Petition on May 30, 2017 wherein he alleges two grounds for relief:

1. The Board violated Petitioner's right to due process when it exercised authority it did not have to revoke Petitioner's parole and impose a 180-month sanction; and
2. The Board violated Petitioner's right to due process when it arbitrarily applied Oregon's parole statutes and rules to revoke his parole and impose the 180-month sanction.

         Respondent asks the Court to deny relief on the Amended Petition because Petitioner failed to adequately preserve these ...


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