Sessions v. Board of Parole and Post Prison Supervision, No. 3:2009cv00497 - Document 38 (D. Or. 2011)

Court Description: OPINION AND ORDER. The Court DENIES the Amended Petition for Writ of Habeas Corpus 27 and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. Signed on 05/11/2011 by Judge Anna J. Brown. (gw)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION JOSEPH G. SESSIONS, Civil No. 09-497-BR Petitioner, OPINION AND ORDER v. MARK NOOTH, Respondent. ANTHONY D. BORNSTEIN Assistant Federal Public Defender 101 S.W. Main Street Suite 1700 Portland, OR 97204 Attorney for Petitioner JOHN R. KROGER Attorney General KRISTEN E. BOYD Assistant Attorney General Department of Justice 1162 Court Street N.E. Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judge. Petitioner, Insti tution, U.S.C. inmate brings 2254. § an this at the habeas Snake corpus River action Correctional pursuant to 28 For the reasons that follow, the Court DENIES the Amended Petition for Writ of Habeas Corpus (#27). BACKGROUND Peti tioner is in the custody of the Oregon Department of Corrections pursuant to Lane County convictions on three counts of Rape in the First Degree, two counts of Sodomy in the First Degree, and one count each of Sodomy in the Second Degree, Rape in the Second Mistreatment. Degree, Rape in Board Third Degree, and Criminal Petitioner does not contest the legality of his convictions and sentence here. Oregon the of Parole and Instead, Petitioner challenges an Post-Prison Supervision ("Board") decision to defer his parole release date. On January 5, 2005, the Board conducted a hearing regarding Petitioner's appropriateness for parole. video conference. Petitioner appeared by At the conclusion of the hearing, the Board members unanimously decided to defer Petitioner's parole release date for 24 months. The Board explained the basis for decision as follows: The Board has received a psychological evaluation on [Petitioner] dated 11/16/2004. Based on the doctor's report and diagnosis, coupled with all the information that the Board is considering, 2 - OPINION AND ORDER the the Board concludes that [Petitioner] suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community. Resp. Exh. 102, Att. 1, p. 2. Petitioner decision. administrative review of the Board's He argued there was insufficient evidence in the record support to sought the Board's Petitioner's claim. conclusion. The Board rejected Resp. Exh. 102, Att. 2. Petitioner sought leave to proceed on judicial review in the Oregon Court of Appeals on the ground that the Board erred in deferring his release on parole because substantial evidence did not support the Board's findings that Petitioner suffers from a present severe emotional disturbance constituting a danger to the community. The Oregon Court of Appeals denied Petitioner's request for leave to proceed with judicial review, and the Oregon Supreme Court denied review. Resp. Exhs. 108 and 110. On May 1, 2009, Petitioner filed his habeas corpus action in this Court. His Amended Peti tion for Wri t of Habeas Corpus alleges one claim for relief: Petitioner was denied his right to due process of law in violation of the Fourteenth Amendment to the Uni ted States Constitution in the following particular: In its January 5, 2005 Board Action # 13, the Oregon Board of Parole lacked the Constitutionally requisite quantum of evidence necessary to defer [Petitioner's] release on parole. 3 - OPINION AND ORDER LEGAL STANDARDS Under 28 U.S.C. § 2254 (d) (1), habeas corpus relief may not be granted on any claim that was adjudicated on the merits in state court, unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. A state court decision is not considered "contrary to" established Supreme Court precedent unless it "applies a rule that contradicts the governing law set forth in [Supreme Court cases]" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003). An "unreasonable application" of clearly established Supreme Court law occurs when "the state court governing legal principle but unreasonably applies that principle to the facts of the ... case." F.3d 943, 974 (9th Cir. 2004) identifies the correct Lambert v. Blodgett, 393 (citing Williams, 529 U.S. at 413), cert. denied, 546 U.S. 963 (2005). "'Clearly established Federal law' is the governing legal principle or principles set forth by 4 - OPINION AND ORDER the Supreme decision." Court at the time the state court renders its Lambert, 393 F.3d at 974. A federal habeas court cannot overturn a state decision "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." u.S. 362, 409 (2000). Williams v. Taylor, 529 Instead, habeas relief may be granted only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts precedents." Harrington v. Supreme Court's] wi th [the Richter, 131 S. Ct. 770, 786 (2011). DISCUSSION In Swarthout v. Cooke, 131 S.Ct. 859 (2011), the Supreme Court recently explained the correct legal test for determining whether a prisoner's due process rights have been violated by a state court decision approving of a parole board determination. In Cooke, the Court "instructed that the due process inquiry must be analyzed in two steps." WL 1365811, *3 Roberts v. Hartley, --- F.3d ---, 2011 (9th Cir., April 12, 2011) (citing Swarthout, 131 S.Ct. at 861. The first step requires a federal court to "ask whether there exists a liberty or property interest of which a person has been deprived " Swarthout, 131 S.Ct. at 861. 5 - OPINION AND ORDER The second step requires a federal court to "ask whether the procedures followed by the State were parole context, 862. consti tutionally sufficient." Id. "the procedures required are minimal." In the Id. at "Due process is satisfied as long as the state provides an inmate seeking parole with 'an opportunity to be heard. statement of the reasons why parole was denied. '" Roberts, 2011 WL 1365811 at *3 (quoting Swarthout, 131 S.Ct. at 862). no substantive due process right. Here, . and There is Id. the Board provided Petitioner the opportunity to be heard at the January 5, 2005, hearing and then provided Petitioner with a written statement of the reasons why his parole release date was deferred. under Swarthout.l Petitioner relief As such, Petitioner received all process due Accordingly, the state court decision denying on his claim the Board lacked sufficient evidence to defer his parole release date was not contrary to or an unreasonable application of clearly established federal law, and Petitioner is not entitled to habeas corpus relief. lHaving concluded Petitioner was afforded the protection due under Swarthout, this Court need not decide whether Oregon law created a protected liberty interest in early release. See Pedro v. Oregon Parole Bd., 825 F.3d 1396, 1398 (9th Cir. 1987) (conclusion that inmate received process due under prior Supreme Court decision on parole release relieved court of necessity of addressing existence of liberty interest). Further, because Petitioner is not entitled to habeas relief, the Court declines to address whether his claim was procedurally defaulted. 28 U.S.C. § 2254 (b) (2); Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) . 6 - OPINION AND ORDER CONCLUSION For these reasons, the Court DENIES the Amended Petition for Writ of Habeas Corpus (#27) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial constitutional right. showing See 28 U.S.C. § of the denial of 2253(c) (2). IT IS SO ORDERED. DATED this 11 ~ day of May, 2011. A~ United States District Judge 7 - OPINION AND ORDER F:\Share\Brown-LawClerks\09-497sessions0510opin.wpd a

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