United States District Court, D. Oregon
THOMAS M. HA, Petitioner,
CHRISTINE POPOFF, Superintendent, Oregon State Correctional Institution, Respondent.
OPINION AND ORDER
Aiken United States District Judge.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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