Al-Wadud v. Oregon Board of Parole and Post Prison Supervision, No. 1:2009cv06352 - Document 23 (D. Or. 2010)
Court Description: Opinion and Order. The Petition for Writ of Habeas Corpus 1 is DENIED. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Ordered by Judge Owen M. Panner. (dkj)
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Al-Wadud v. Oregon Board of Parole and Post Prison Supervision Doc. 23 ~'~" ,-'M'":"',1: '., ;:. '- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION ABDUR RASHID AL-WADUD, Civil No. 09-6352-PA Petitioner, v. OREGON BOARD OF PAROLE AND POST-PRISON SUPERVISIOK, OPINION AND ORDER Respondent. Abdur Rashid Al-Wadud SID # 10534564 Oregon State Correctional Inst. 3405 Deer Creek Drive SE Salem, Oregon 97310 Attorney for Petitioner John R. Kroger Attorney General Jonathan W. Diehl Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com PANNER, District Judge. Peti tioner U.S.C. § brings this habeas corpus case pursuant to 28 2254 in which he challenges the September 6, 2002 decision of the Oregon Board of Parole and Post Prison Supervision ("Board") establishing a Murder Review Date of August 1 7, 2020. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) is denied. BACKGROUND In July of 1995, petitioner killed his ex-wife, convicted him of Murder in May of 1996. and a jury The court's Corrected Judgment imposed the following sentence: PURSUANT TO ORS 163.115 (a) (b), THE COURT SENTENCES THE DEFENDANT TO IMPRISONMENT FOR LIFE. THE COURT FURTHER ORDERS THAT THE DEFENDANT SHALL BE CONFINED FOR A MINIMUM OF 25 YEARS WITHOUT POSSIBILITY OF PAROLE, RELEASE ON WORK RELEASE OR ANY FORM OF TEMPORARY LEAVE OR EMPLOYMENT AT A FOREST OR WOEK CAMP. THIS IS A DETERMINATE SENTENCE PURSUANT TO BALLOT MEASURE 11 AND SENTENCE IS SUBJECT TO ORS 137.700. THE PERIOD OF POST-PRISON SUPERVISION IS FOR LIFE. Respondent's Exhibit 101; Memo in Support (#14), p. 2; State's Reply (#18), p. 4. On September 6, 2002, the Board established petitioner's "Murder Review Date" as August 17, 2020, the date on which it would evaluate him to determine his likelihood for rehabilitation within a reasonable period of time. Respondent's Exhibit 102, p. 2. Petitioner sought administrative review of this decision, which the 2 - OPINION AND ORDER Respondent's Exhibit 116, Board ultimately denied on the merits. pp. 34-35. The Oregon Court of Appeals allowed petitioner's motion to proceed with judicial review, but affirmed the Board's decision without issuing a written opinion, denied review. and the Oregon Supreme Court Respondent's Exhibits 127, 128. Petitioner filed federal habeas corpus action on December t:~is 14, 2009 raising two grounds for relief: 1. The Board's retroactive application of ORS 163.115 (1999) violates the U.S. Constitution's Ex Post Facto Clause because: (1) that law was applied retroactively to petitioner; and (2) the new law created a "sufficient risk" of increasing the punishment attached to petitioner's crime; and 2. The Board's actions violate the Equal Protection Clause because the board is treating petitioner differently than other similarly situated individuals, and there is no rational basis for the disparate treatment. Petitioner has abandoned his equal protection claim on the basis that he lacks sufficient evidence to prove that claim. Memo in Support (#14), p. 7. on the ex post facto Respondent asks the court to deny relief claim because the denying relief are ent i tIed to deference, state court decisions and also because the claim lacks merit. DISCUSSION I. Standard of An Revie~ application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable 3 - OPINION AND ORDER application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). § A state court's findings of fact are presumed correct, and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. A state court decision established precedent if the 28 U.S.C. § 2254(e) (1) is "contrary state court to clearly applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless precedent." arrives Williams v. at a Taylor, result different 529 u.S. 362, from 405-06 [that] (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. The state 80urt's application of clearly established law must be objectively unreasonable. When a state court reaches a Id at 409. decision on the merits but provides no reasoning to support its conclusion, the federal habeas 4 - OPINION AND ORDER court must conduct an independent review of the record to determine whether the state court clearly erred in its application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such an instance, although the court independently reviews the record, it decision. II. still lends deference to the state court's ultimate Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Analysis According to petitioner, the Board violated his right to be free from ex post facto punishment when it applied the 1999 version of ORS 163.115 to him, as opposed to the 1995 version of the same law that was in effect ~t the time petitioner committed his crime. The Ex Post Facto Clause of the u.S. Constitution prohibits states from enacting laws which, by retroactive operation, increase the punishment for a crime after its commission. 529 u.S. 244, 250 if: (2000). A law violates the Ex Post Facto Clause (1 ) it "appl [ies ] Weaver v. Garner v. Jones, Graham, -::'0 events occurring before its enactment," 450 u.S. 24, 29 (1981); and (2) "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." 499, 504 "creates increasing crimes." (1995). only the the Calif. Dep't. of Carr. v. Morales, ThEre most measure Morales, is no ex post speculative of punishment 514 u.S. at 513. 5 - OPINION AND ORDER facto and violation attenuated attached 514 u.S. to the if it risk of covered Petitioner's post ex ~;entence interpretation of his as opposed to independent a life review facto the is predicated on his as a 25-year determinate sentence, sentence of claim with record a in 25-year this minimum. An reveals that case peti tioner was sentenced to "life pursuant to ORS 163.115 (a) (b) " and that the possibility sentence of was parole, "for a release, minimum of or work 25 years without " release. Respondent's Exhibit 101. A life sentence was required pursuant to ORS 163.115 (5) (a) (1995) which provided, "A person convicted punished by imprisonment for life." of murder shall be While the Corrected Judgment did make a somewhat confusing reference to the sentence being "a determinate sentence pursuant to Ballot Measure 11," it in no way purported to only impose a 25-year determinate sentence. Measure 11 was Oregon's voter-approved mandatory minimum sentencing scheme which applied to crimes committed on or after April 1, 1995, making petitioner's case one respondent explains, determinate Measure of the the 11 earliest Corrected sentence Measure Judgment's constituted 11 cases. reference the trial As to a court's effort to distinguish petitioner's case from those sentences not imposed under Measure 11. To conclude otherwise simply ignores the vast majority of the Corrected Judgment which is quite clear. 6 - OPINION AND ORDER Having determined that the trial court sentenced petitioner to an indeterminate life sentence with a 25-year minimum, the court now addresses his ex post facto challenge. At the time of petitioner's crime, Oregon's intentional murder statute provided that a person convicted of murder "shall be punished by imprisonment for life" and that "the defendant shall be confined for parole. a minimum of "ORS 163.115 (5) 25 years (1995). without possibility of However, because there were no statutory provisions for paroling a person sentenced under this statute, these sentences. 727 senteLces ended State v. McLain, (1999) up constituting 158 Or. App. 419, "true 423-425, life" 974 P.2d This had the practical effect of allowing certain prisoners convicted of Aggravated Murder and sentenced to "life imprisonment" to have a parole hearing after serving 25 years in custody (with no possibility of release until 30 years), whereas non-aggravated murderers with a life sentence had no opportunity for parole despite committing a lesser crime. Appeals ultimately disproportionate, found this result to be The Oregon Court of unconstitutionally and concluded that the "proper sentence is the 25-year mandatory mininum sentence required by ORS 137.700 (a) (A) and ORS 163.115 (5) (b), followed by post-prison supervision for life in accordance with OAR 213-005-0004." Id at 427. To resolve the problem involving the Board's inability to parole inmates sentenced pursuant to ORS 163.115(5), the "[Oregon] 7 - OPINION AND ORDER Legislative Assembly promptly enacted legislation that grants the Board express authority to parole a person who has been convicted of murder under ORS committed." (2000) regardless of the date the crime was 16~;.115, State v. Haynes, 168 Or. App. (citing Or. Laws 1999, ch. 782, § 565, 2). 567, 7 P.3d 623 Specifically, in 1999 ORS 163.115(5) was amended to provide that a prisoner who served the 25-year minimum to allow the Board to rehabilitated convert whether reasonable a (1999). the could petition the Board for a hearing determine within ORS 163.115 (5) (c) would sen~ence he was period "likely to be of time." If the Board made such a finding , sentence to "life imprisonment with it the possibility of parole, release to post-prison supervision or work release and may set a release date." ORS 163.115 (5) (d) (1999). It is undisputed that the Board retroactively applied the 1999 version of ORS 163.115 and its implementing regulations when it set petitioner's August 17, 2020 review hearing. cannot show that he was However, petitioner adversely affected by the retroactive application because it allows him an avenue to parole where none existed previously. lacks merit, denying Consequently petitioner's ex post facto claim thus he cannot show that the state court decision relief on this claim is either contrary to, or unreasonable application of, clearly established federal law. III III 8 - OPINION AND ORDER an CONCLUSION For the reasons identified above, Habeas Corpus (#1) is DENIED. The the Petition for Writ of court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this L! cay Owen M. Panner United States District Judge 9 - OPINION AND ORDER
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