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Ha v. Popoff

United States District Court, D. Oregon

December 3, 2019

THOMAS M. HA, Petitioner,
v.
CHRISTINE POPOFF, Superintendent, Oregon State Correctional Institution, Respondent.

          OPINION AND ORDER

          Ann Aiken United States District Judge.

         Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that the Oregon Board of Parole and Post-Prison Supervision (the Board) violated his federal constitutional rights to due process when it revoked his parole, refused to reopen his parole revocation hearing, and denied him re-release on parole. Petitioner also contends that the Oregon Court of Appeals violated his rights to due process by declining to review decisions of the Board. For the reasons explained below, the petition is denied.

         I. BACKGROUND

         In 1989 and 1991, petitioner was convicted of robbery, assault, and burglary charges and sentenced to consecutive terms of imprisonment. Resp't Exs. 101, 103 at 47. Petitioner was released on parole in 2005 and was incarcerated again in 2008 after he committed additional offenses. Resp't Ex. 134 at 65. In 2010, petitioner was released on parole.

         On February 9, 2012, petitioner was involved in an automobile accident in Lincoln City, Oregon. Petitioner's probation officer began parole revocation proceedings after petitioner tested positive for controlled substances and a firearm was found in the vehicle. Resp't Ex. 134 at 61.

         On April 16, 2012, a parole revocation hearing was held before a Hearings Officer. Resp't Ex. 134 at 125-205. Petitioner appeared and testified, along with Officer Eskridge, a police officer who responded to the accident. Evidence at the hearing established that petitioner had rented the vehicle involved in the accident and his belongings were found in the vehicle. Officer Eskridge testified that once he arrived at the scene, he began looking for the driver in an area south of the accident, which was the direction in which a witness saw the driver run. Officer Eskridge found petitioner approximately 150 yards from the accident, unresponsive and lying on the ground. Resp't Ex. 134 at 131, 133.

         Officer Eskridge also testified that other responding officers informed him that a gun was found in the vehicle, and Officer Rudolph's police report - which included a photograph of the gun - corroborated Officer Eskridge's testimony. Resp't Ex. 103 at 107, 123; Resp't Ex. 134 at 137-38. Officer Rudolph's report also included the statements of Linda Moore, who lived near the accident scene. Ms. Moore reported that she saw the driver, who she believed to be a Caucasian male, get out of the vehicle after it crashed. Ms. Moore asked the driver if he was okay, and he responded, "Yeah." When she asked if anyone else was in the vehicle, the driver responded, "No." Resp't Ex. 103 at 106.

         The Hearings Officer found that petitioner had violated the conditions of his parole by using illegal substances, failing to obey all laws based on the circumstances of the accident, and possessing a dangerous weapon. Specifically, the Hearings Officer found:

Mr. Ha claimed he was dropped off at his hotel and Sammy and Sam went to make a U-turn. The location of this hotel and its parking lot makes it unnecessary and impractical to perform a U turn as there is a clear way to return either north or southbound onto Hwy 101. Mr. Ha reported he could hear and see the crash from the hotel. However, the hotel is approximately .5 miles away from the crash scene with a hill and significant curve in between; making it impossible for anyone to see, much less detect a crash in the area the vehicle was found. Lastly, Mr. Ha stated cliffs were all around him and it was dark, yet he could see the car. This is highly unlikely given the darkness and closeness of homes and their landscaping. Lastly, the location Mr. Ha was found required him to run across a main street and head in the opposite direction of the vehicle. Furthermore, Mr. Ha previously admitted to his PPO he was in the vehicle at the time it crashed.
It is clear that Mr. Ha's statements in this hearing are untruthful and therefore, will carry no weight in the finding of facts. In addition, Mr. Ha's failure to take reasonable stops to notify the owner of the damaged mailbox and to remain at the scene to leave his name and address, intentional or otherwise, gives substantial probable cause to Failing to Perform the Duties of a Driver.
Mr. Ha entered into a rental agreement whereby he acknowledged the responsibility for the vehicle prior to leaving the rental company. The gun was found in the vehicle Mr. Ha possessed, occupied and was responsible for. This combined with the fact Mr. Ha has a history of gun possession giving probable cause to possession of a dangerous weapon-firearm.

Resp't. Ex. 134 at 69. The Hearings Officer acknowledged that petitioner's attorney raised the issue of hearsay, but she found that "Mr. Ha acknowledged drug use, medical records revealed illegal drugs in Mr. Ha's system and photos were taken at the scene of the crash showing the vehicle, the gun inside the vehicle." Id.

         On May 30, 2012, the Board revoked petitioner's parole, finding that petitioner had violated the conditions of his supervision. Resp't Ex. 134 at 214. A future disposition hearing was scheduled to determine whether petitioner would be re-released on parole.

         Petitioner sought administrative review of his parole revocation, and the Board denied relief. Resp't Ex. 134 at 218-20. Petitioner then sought judicial review of the parole revocation, arguing that the Board relied upon hearsay to revoke his parole in violation of his constitutional right to confrontation. Resp't Ex. 128. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp't Exs. 131-32.

         On September 7, 2012, petitioner requested that the parole revocation hearing be reopened to present the testimony of Kayla Blower. According to petitioner, Blower would testify that she and a person named "Mr. Sam Johnson" were riding in petitioner's rental vehicle when the accident occurred, and she saw a firearm in Johnson's waistband. Resp't Ex. 103 at 145. The Board denied petitioner's request to reopen the hearing, explaining that "the information alleged to be in Ms. Blower's letter does not constitute substantial new information that was not known or could not be anticipated at the time of the hearing and that would significantly affect the outcome of the hearing." Resp't Ex. 104 at 18.

         On September 18, 2012, the Board conducted a future disposition hearing. Resp't Ex. 103 at 162-208. At that hearing, petitioner claimed he was not in the vehicle during the accident and had loaned his vehicle to "Ms. Blower and a gentleman named Sam[.]" Resp't Ex. 103 at 178-79. By a vote of three members, the Board unanimously denied re-release and established a new release date of February 9, 2022, after ten years of incarceration. Resp't Ex. 103 at 206, 211. The Board subsequently withdrew its initial order and issued a new order with the vote of only two Board ...


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