Roberts v. Nooth, No. 2:2011cv01135 - Document 27 (D. Or. 2012)
Court Description: OPINION AND ORDER. Based on the foregoing, petitioner's Amended Petition for Writ of Habeas Corpus (#9) is DENIED, and this proceeding is dismissed with prejudice. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. IT IS SO ORDERED. Signed on 10/17/2012 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON WILLIAM D. ROBERTS, Petitioner, 2: 11-cv-01135-MA OPINION AND ORDER v. MARK NOOTH, Respondent. ANTHONY D. BORNSTEIN Assistant Federal Public Defender 101 SW Main Street, Suite 1700 Portland, OR 97204 Attorney for Petitioner ELLEN F. ROSENBLUM Attorney General SAMUEL A. KUBERNICK Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Attorneys for Respondent Marsh, Judge Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus petition pursuant to 28 U.S.C. 1 - OPINION AND ORDER § 2254 challenging Supervision's the Board Oregon deferral of of Parole petitioner's and release Post-Prison on parole. Specifically, petitioner argues that the Board denied him parole based on his mental illness in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Title II of the Americans with Disabilities Act (ADA). For the reasons set forth below, the amended petition is DENIED. FACTUAL AND PROCEDURAL BACKGROUND On August 14, 1979, Petitioner was convicted of murder and subsequently sentenced to life imprisonment, with the possibility of parole after twenty-five years. Resp. 's Exh. 101. On March 11, 2008, petitioner appeared before the Board for an exit interview to determine if he was suitable for parole. The Board unanimously concluded that petitioner was unsuitable for parole because he suffers from a "present severe emotional disturbance that constitutes a danger to the health or safety of the community." Resp. 's Exh. 103 at 132 and 138. Accordingly, petitioner was denied parole, and a new projected parole release date was set for August 17, 2010. On April 3, Id. at 137-38. 2008, petitioner timely filed an Administrative Review Request Form, alleging that the Board's decision violated his protected liberty interests, state statutes, the ADA, and several state and federal constitutional provisions, including the 2 - OPINION AND ORDER Fourteenth Amendment of the United States Constitution. Id. at 140-43. On May 1, 2009, the Board rejected petitioner's claim that he was denied disturbance. because solely parole of his severe emotional Id. at 181-82. On August 16, 1979, you were convicted of murder and sentenced to life in prison. You committed this crime on On March 11, 2008, the Board or about Apiil 28, 1979. conducted an exit interview with you. After considering all of the evidence presented at this hearing, including Gary R. psychological evaluations prepared by Dr. and applying the 2007, McGuffin on December 12, substantive standard in effect at the time you committed your crime as well as the applicable procedural rules, the Board found that you were suffering from a present severe emotional disturbance such as to constitute a danger to the healthy or safety of the community. As a result of this finding, the Board deferred your projected parole release date for 24 months with a resulting projected parole release date of August 17, 2010. Petitioner timely filed a petition for judicial review Id. at 181. in the Oregon Court of Appeals arguing that the denial of parole violated state anti-discrimination laws and the ADA. Resp. 's Exh. 105. Notably, petitioner did not argue to the Court of Appeals that the Board's provision. Id. denial violated any federal constitutional The Oregon Court of Appeals affirmed the Board's decision without opinion. Roberts v. Bd. of Parole and Post-Prison Supervision, 240 Or.App. 464, 248 P.3d 451 (2011). Petitioner subsequently petitioned the Oregon Supreme Court for review, repeating his arguments submitted to the Court of Appeals, and additionally arguing that the Board's denial of parole 3 - OPINION AND ORDER violated the Due Process Clause of the Fourteenth Amendment of the Resp. 's Exh. 111. United States Constitution. the Oregon Supreme Court denied review. On April 21, 2011, Roberts v. Bd. of Parole and Post-Prison Supervision, 350 Or. 241, 254 P.3d 743 (2011). In the instant proceeding, Petitioner argues that the Board's denial of parole violated the Due Process Clause of the Fourteenth Amendment and the ADA. DISCUSSION I. Due Process Clause of the Fourteenth Amendment Petitioner argues that the Board violated the Due Process Clause when it denied him parole because he suffers from a present severe emotional disturbance the community. (PSED) that constitutes a danger to Respondent moves the court to deny habeas corpus relief because petitioner's Due Process argument is procedurally defaulted and, in the alternative, lacks merit. A state prisoner must exhaust his state remedies before he can file a § 2254 petition in federal court. 896, 911 (9th Cir. 2004); 42 U. S.C. § Casey v. Moore, 386 F.3d 2254 (b) (1) (A). to avoid procedurally defaulting an argument, 11 'fairly present' his claim in each Reese, 541 U.S. Baldwin v. 27, 29 a petitioner must appropriate (2004). Additionally, state court. 11 Merely raising an argument on discretionary review to the state supreme court is insufficient. Castille v. Peoples, 489 U.S. 346, 4 - OPINION AND ORDER 351 (1989). Although petitioner raised his Due Process claim before the Board and the Oregon Supreme Court on petition for review, he did not raise it before the Oregon Court of Appeals. Thus, petitioner failed to fairly present his claim in each appropriate state court. Petitioner's Due Process claim is procedurally defaulted. Petitioner has neither shown cause for the procedural default and prejudice attributable thereto, nor demonstrated that the failure to consider his Due Process claim will result in a fundamental miscarriage of justice. Accordingly, habeas corpus relief is precluded. II. The Americans with Disabilities Act Petitioner next argues that the Board's denial of parole on account of his mental disability violates the ADA. Respondent argues that the state court's rejection of petitioner's ADA claim is entitled to deference. If a state court has ruled on the merits of a claim, a federal court may not grant habeas corpus relief under state adjudication involved an Federal law, States, facts. 11 11 § 2254 unless the resulted in a decision that was contrary to, or unreasonable application of, clearly established as determined by the Supreme Court of the United or was based on an unreasonable determination of the 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. 770, 785-86 (2011). 5 - OPINION AND ORDER u.s. When applying these standards, the federal court should review the ''last reasoned decision'' by a state court that addressed the issue. Robinson v. Ignacio, 360 F. 3d 1044, 1055 (9th Cir. 2004). Here, however, no Oregon court issued an opinion on the ADA issue; the Court of Appeals affirmed the Board's decision without opinion, and the Supreme Court denied review. opinion on the issue, the Where there is no state court federal court must undertake an "'independent review of the record' to ascertain whether the state court decision was objectively unreasonable." 336 F.3d 848, 853 (9th Cir. 2003) Himes v. Thompson, (quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)); see also Harrington, 131 S.Ct. at 785-87. Title II of the discriminating against disability. The ADA ADA a prohibits qualified a public individual on entity the from basis of Thompson v. Davis, 295 F. 3d 890, 895 (9th Cir. 2002). applies to state prisons and parole decisions. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 208-13 (1998); Thompson, 295 F.3d. at 896-99. The ADA "does not categorically bar a state parole board from making an individualized assessment of the future dangerousness of an inmate by taking into account Thompson, 295 F.3d at 898 n.4. the inmate's disability." Thus, a "person's disability that leads one to a propensity to commit crime may certainly be relevant in assessing whether the individual is qualified for parole." 6 - OPINION AND ORDER Id. Accordingly, grounds this Court has held that the denial of parole on identical violate the ADA. SU, to those identified by petitioner does See, e.g., Cheever v. Noeth, No. 2:10-cv-01181- 2012 WL 1114306 at *3-4 (D. Or. Feb. 1, 2012) (Findings Recommendation (#33) at 6-7); Dunmire v. Kitzhaber, No. 00536-KI (D. Or. Mar. 1, 2001) Petitioner not was denied & 3:00-cv- (Opinion and Order (#24) at 5-6). parole because he suffered from a ''present severe emotional disturbance that constitutes a danger to the health or safety of the community." 132. Resp. 's Answer Ex. 103 at Based upon an independent review of the record, the Board did not deny petitioner's parole based on his mental disturbance per se, but based on a conclusion that the disturbance renders him a danger to the community. reached this diagnosis, conclusion See Cheever, 2012 WL 1114306 at *3. "based on the doctor's report It and coupled with all the information that the Board is considering . . " Resp. 's Exh. 103 at 138. This is permissible under the ADA. See Thompson, 295 F.3d at 898 n.4. Oregon courts' rejection of petitioner's ADA claim is contrary to, nor an unreasonable application of, Accordingly, habeas corpus relief is not warranted. Ill Ill Ill Ill 7 - OPINION AND ORDER Therefore, the neither federal law. CONCLUSION Based on the foregoing, petitioner's Amended Petition for Writ of Habeas Corpus (#9) is DENIED, and this proceeding is dismissed with prejudice. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. IT IS SO ORDERED. DATED this _f_1 day of October, 2012. ?tr~4m~ Malcolm F. Marsh ~ United States District Judge 8 - OPINION AND ORDER
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