Gordon v. Premo, No. 6:2013cv01130 - Document 41 (D. Or. 2015)
Court Description: OPINION AND ORDER Petitioner's habeas petition 3 is denied. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c) (2). (See 20 page opinion for more information) Signed on 4/28/15 by Judge Malcolm F. Marsh. (dsg)
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Gordon v. Premo Doc. 41 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DENNIS LEROY GORDON, Petitioner, Case No. 6:13-cv-01130-MA OPINION AND ORDER v. JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent. ANTHONY D. BORNSTEIN Federal Public Defender's Office 101 SW Main Street, Suite 1700 Portland, OR 97204 Attorney for Petitioner ELLEN F. ROSENBLUM Attorney General KRISTEN E. BOYD Assistant Attorney General Department of Justice 1162 Court Street N.E. Salem, OR 97301-4096 Attorneys for Respondent MARSH, Judge 1 -- OPINION AND ORDER Dockets.Justia.com 'petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus proceeding pursuant to 28 U.S.C. 2254. § Petitioner challenges the constitutionality of the Oregon Board of Parole and Post-Prison Supervision's deferral of his parole release date. For the reasons set forth below, his habeas petition is denied. BACKGROUND On September 4, 1975, petitioner raped a woman at gunpoint in her Roseburg home. After the attack, he threatened the victim that he or his friends would return to harm her if she told anyone. Gordon v. Bd. of Parole and Post-Prison Super., 246 Or. App. 602, 267 P. 3d 188 (2011). 600, Eighteen days later, after the victim testified before a grand jury, petitioner chartered a plane from Hood River and returned to the woman's home. Petitioner drove the woman and her two youngest children to a secluded location, where he stabbed the woman repeatedly and placed her floorboard of the car at the feet of her children. body on the Gordon v. Ed. of Parole and Post-P.rison Superv., 267 Or. App. 126, 128, 340 P. 3d 150 (2014). Later, while the victim may still have alive, petitioner beheaded her, and buried her body and head at separate locations. Id.; Gordon v. Ed. of Parole and Post-Prison Superv., 343 Or. 618, 620, 175 P.3d 461 (2007); Gordon v. Ed. of Parole and Post-Pr.ison Superv., 266 Or. App. 405, 408-09, 338 P. 3d 185 (2014); Gordon, 246 Or. App. at 602-03. 2 -- OPINION AND ORDER The victim's children were left in the family car and found by police several hours later. Petitioner returned to Hood River in the same chartered plane he Gordon, 246 Or. App. at 603. arrived in. In 1976, petitioner pled guilty to Murder and Rape in the First Degree. He received an indeterminate sentence not to exceed life imprisonment for the murder, and a consecutive indeterminate 20-year sentence for rape. I. Resp. Exh. 101. Relevant Parole Rules When petitioner committed his crimes, scheme was known as the discretionary system. a prisoner serves an indeterminate Oregon's sentencing Under that system, sentence, and the board periodically considers whether the prisoner is suitable for release on parole. In Gordon, 1977, the 343 Or. at 620. state legislature system with a matrix system. replaced the discretionary Id. at 621. Under the matrix system, most prisoners receive a firm parole release date, postponed for statutory reasons only. 1 which may be See Id. at 621-22. Unless the parole release date is postponed, the prisoner must be released on his parole release date. 180, 187, 998 P. 2d 661 1 Id. at 622; Hamel v. Johnson, 330 Or. (2000). Offenders who committed their The statutory bases for postponing a parole release date are ( 1) the inmate has engaged in se_rious misconduct while in prison; (2) the inmate has a severe psychiatric or psychological disturbance such as to constitute a danger to the health or safety of the community; and (3) the inmate's parole plan is inadequate. Gordon, 343 Or. at 622 (citing ORS 144.125). 3 -- OPINION AND ORDER crimes before the adoption of the matrix system are permitted to opt into the matrix system, and the prisoner's eligibility for parole is then determined using the rules in effect at the time of his election. Gordon, 343 Or. at 622-23. At all relevant times, ORS 144.125(3) provided that "[i]f a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety .' of the community has been made the board may order the postponement of the scheduled release date." 426, § 2; 1987 Oregon Laws, c. 320 at 627 n.7. § 1981 Oregon Laws, c. 53; see also Gordon, 343 Or. In Weidner v. Armenakis, the Oregon Court of Appeals held that under ORS 144.125(3), the board may consider all relevant information in the record when considering whether suffers from a severe emotional disturbance. 18, 959 P.2d 623 reasoning reaff'd. (1998), withdrawn by a prisoner 154 Or. App. 12, 17- order and readopted in Merrill v. July 13, Johnson, 1998, 155 Or. App. 295, 964 P.2d 284 (1998); Gordon, 343 Or. at 627. However,' in Peek v. Thompson, the Court of Appeals held that the board's 1988 adoption of OAR 255-60-006(8) requires a formal finding in the psychiatric or psychological evaluation itself as a prerequisite to the board's authority to postpone a prisoner's parole release date. 4 -- OPINION AND ORDER 160 Or. App. 260, 264-66, 980 P.2d 178 343 Or. at 628-29. 2 (1999); Gordon, 1988 the version psychological of report OAR Hence, the 255-60-006, itself must if the board applies support a psychiatric determination petitioner suffers from a severe emotional disturbance. or that However, if the board applies the rules in effect in 1984, it may rely on all pertinent evidence in the record. See e.g. Gordon, 267 Or. App. at 132-33; Gordon, 266 Or. App. at 414. II. Petitioner's Parole Board History • 1984 (First Matrix Election) On August 1, 1984, petitioner signed an application to receive a firm parole release date under the matrix system, remain under the discretionary system. that same date, August 10, 1984, rather than Resp. Exh. 103 at 76. On the board held a Personal Review Hearing and, issued a Board Action Form ("BAF") on calculating petitioner's matrix range to be 198 to 268 months, and setting a parole release date of March 15, 2000. Id.; Gordon, 343 Or. at 623. Petitioner filed an appeal. transcript for appeal, had not been recorded. 2 In the process of preparing a it was discovered that the August hearing Resp. Exh. 103 at 77. As a result, the OAR 255-06-006 (8) (1988) provides that "[i] f the evaluation does not make a finding of severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parole release date and set parole conditions." Peek, 160 Or. App. at 264. 5 -- OPINION AND ORDER board "voided" its August 10, 1984 BAF, and referred the matter to an "analyst for recomputation of [petitioner's) History /Risk score" Id. at 205; Gordon, (a matrix calculation) . 343 Or. at 623. • 1985 (Discretionary System Election) On May 15, 1985, petitioner appeared at a parole hearing and requested that he be considered for parole under the discretionary system in effect at the time of his crimes. Resp. Exh. 103 at 81 During a discussion with petitioner, one board member & 283-84. agreed with petitioner's assertion that his 1984 matrix election was invalid because the board action had been voided. Gordon, Id. at 284; Consistent with this understanding, 343 Or. at 624. the board's BAF reflects petitioner's election as remaining under the discretionary system. Resp. Exh. 103 at 81 & 209-13. The board continued to consider petitioner under the discretionary system through 1987. Id. at 210-19; Gordon, 343 Or. at 624. • 1988 (Second Matrix Election) On August 27, 1988, petitioner signed a second application requesting that he be placed under the matrix system in order to receive a firm parole release Pursuant to that request, Resp. date. Exh. 103 at the board established a 212-284 month matrix range, and a parole release date of March 15, 2000 advanced by 7 months to August 15, 1999). (BAF #2 & Jt4); Gordon, 221. 343 Or. at (later Id. at 224-26 & 229-30 624-25. The board held additional parole hearings in 1991 and 1994, resulting in no change 6 -- OPINION AND ORDER to petitioner's August 15, 1999, parole release date. 103 at 234-38 (BAF jf6 & Resp. Exh. jf?). • Deferral of Parole Release Date On February 2, 1999, the board deferred petitioner's parole release date by 24 months on the basis that he suffers from a present severe emotional disturbance such as to constitute a danger to the health and safety of the community. & Administrative Review Responses (ARR) Id. at 240-52 (BAF #8 #2 & #3). Petitioner's parole release date was deferred to August 15, 2001. In ARR #3, Id. at 240. the board explained that its decision to defer petitioner's parole release date was premised upon petitioner's election to opt into the matrix system on August 27, 1988, rendering the Peek decision applicable to its decision (requiring a formal finding in a psychiatric or psychological evaluation in order to extend petitioner's parole release date). Id. at 251. Relying solely on the psychological evaluation of Dr. Ronald Page, the board concluded that petitioner suffers from a severe emotional disturbance. Id. at 251-52. On May 2, 2001, the board deferred petitioner's parole release date an additional 24 months. Or. App. at 134. Gordon, 343 Or. at 630; Gordon, 267 The board again relied upon petitioner's 1988 election into the matrix system, concluded that Dr. Rubin's 7 -- OPINION AND ORDER applied the Peek decision, psychological report and . contained a diagnosis of a severe emotional disturbance. Gordon, 343 Or. at 630. On administrative review, the board affirmed the deferral of petitioner's parole release date. rational, concluding that matrix system in 1984, However, the board changed its petitioner initially opted into the rendering the Peek decision inapplicable (thereby allowing the board to consider all relevant information in the record) . Id.; Resp. Exh. 103 at 258-59. Alternatively, the board concluded that even under Peek, there was some evidence to support the board's decision. Resp. Exh. 103 at 259; Gordon, 343 Or. at 628. • Board Explains Reliance on 1984 Matrix Election On June 2, 2003, the board reopened for reconsideration ARR jf3 (concerning the release date). first 24-month deferral Resp. Exh. 103 at 285. of petitioner's parole The board held that it had erroneously relied on petitioner's second matrix election in 1988, rather than his initial election in 1984. Accordingly, the ARR was amended to reflect that petitioner made his first matrix election on August 10, 1984, and that the board was relying upon the rules in effect in 1984. Supreme Court Resp. Exh. 103 at 285-86 (ARR #5). reversed, and remanded to require the The Oregon board to provide an explanation for its departure from prior practice of relying on petitioner's 1988 election. 8 -- OPINION AND ORDER Gordon, 343 Or. at 635-38. On remand, the board explained in BAF #14 that it relied on petitioner's election, 1984 matrix rather than the later 1988 in order to avoid the limitations Peek placed on its discretion. Resp. Exh. 104, ER-11. Peek "there was specific election, little time frame reason for specifically to this case, for opting The stated that prior to the Board to into matrix or, a more for formulating a practice for when offenders opt into the matrix, opt out of the matrix, attempt to opt into the matrix again." board held that, the contemplate Id. and then Additionally, the even under the more restrictive Peek standard, substantial evidence supported the deferral of petitioner's parole by 24 months. Id. at ER-12. Administrative review was denied. Resp. Exh. 101 at 12 (ARR #10). Petitioner appealed the board's order on the basis that it was (1) not supported by substantial evidence in the record; on an erroneous interpretation of the law; (2) based ( 3) inconsistent with prior practice; and (4) not logically related to the facts of the case. Resp. Exh. 104 at 26. Additionally, petitioner argued that the board violated the Due Process Clause of the U.S. Constitution by "reversing course and deciding that, although it had previously considered petitioner's 1984 election to be void, that was actually the effective election date for determining what version of its rules applied." Resp. Exh. 104 at 41-42. 9 -- OPINION AND ORDER In a responsive brief, the State argued that the board's explanation on remand as to why it relied upon petitioner's 1984 election was fair and rational. The State also argued that the board's suffers finding that petitioner from a present severe emotional disturbance was supported by substantial evidence in the record under the 1984 and 1988 rules. Finally, the State asserted that petitioner's federal due process argument was unpreserved and, in any event, lacked merit. Resp. Exhs. 105 & 113. The Oregon Court of Appeals affirmed the board's decision, using petitioner's 1988 matrix election and applying the more restrictive rule announced in Peek (rendering a decision under 1984 rules unnecessary) . Gordon, 246 Or. App. at 609-13. The court declined to consider petitioner's constitutional arguments on the basis that they were not sufficiently preserved. Id. at 612 n.11. Petitioner sought review by the Oregon Supreme Court, but did not challenge the Court of Appeals' ruling on the preservation issue. Resp. Exh. 109. The Oregon Supreme Court denied review. Gordon, 352 Or. 341 (2012) . 3 Ill 3 More recently, the Oregon Court of Appeals addressed the board's 2011 deferral of petitioner's parole release date for 10 years. The Court of Appeals· rejected petitioner's contention that his 1984 election was ineffective, and held that the board's reliance on petitioner's 1984 matrix election (in order to consider the most information available to the board in reaching its decision) was rational, fair, and principled. Gordon, 267 Or. App. at 145-47. 10 -- OPINION AND ORDER DISCUSSION Petitioner alleges that the board violated his constitutional rights to due process, equal protection, and to be free from cruel and unusual punishment by (1) failing to release him on his firm release 1999; date of August 15, (2) calculating his parole eligibility based upon evidence outside the psychological report; and (3) concluding that the psychological report itself supports· a finding that disturbance. moves the petitioner suffers Habeas Petition court to deny from (ECF No. habeas 3) relief a severe at 5-13. on petitioner's claims are procedurally defaulted, the emotional Respondent basis that the state-court decisions are entitled to deference, and petitioner's claims lack merit. I. Procedural Default Generally, a state prisoner must exhaust his available state court remedies before seeking federal habeas corpus relief. U.S.C. § 2254 (b) (1). 28 If a state prisoner procedurally defaults his available state remedies, federal habeas relief is precluded absent a showing of cause and prejudice, or that the failure to consider his federal justice. claims will result in a Coleman v. Thompson, fundamental miscarriage of 501 U.S. 722, 750 (1991). A state prisoner procedurally defaults his available state remedies if (1) the state court declines to address the prisoner's federal claims; and (2) the state court decision rests on a state 11 -- OPINION AND ORDER procedural rule that is independent of the federal question and adequate to support the judgment. 1120, 1127 (2011); Maples v. Walker v. Thomas, 131 S. Ct. Martin, 132 S.Ct. 912, 922 (2012); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003). The question of whether a state procedural rule is adequate is a question of federal law. Lee v. Kemna, 534 U.S. 362, 375 (2003). When the respondent pleads the existence of an independent and adequate state procedural rule as an affirmative· defense, the burden shifts to the petitioner to demonstrate the inadequacy of the state rule. The respondent bears the proving the state rule bars federal review. ultimate burden of Bennett, 322 F.3d at 585-86. To be "adequate," a state procedural rule must be well- established and consistently applied in the manner it was applied to the petitioner. Walker, 567 (9th Cir. F.3d 573, "There are, 576 however, 131 S.Ct. at 1127; Scott v. Schriro, 2009); exceptional Bennett, cases in 322 F.3d at which 583. exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee, 534 at 376. In the instant proceeding, respondent argues that petitioner's due process claims are barred because the Oregon Court of Appeals expressly rejected 5.45(1). the claims as unpreserved pursuant See Gordon, 246 Or. App. at 612 n.11. 12 -- OPINION AND ORDER to ORAP Pursuant to that state procedural rule, "[n] o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief.n The preservation requirement of ORAP 5.45(1) applies to judicial Found. [appellate] review v. of Emp't. administrative 267 Or. Dept., Entrepreneurs proceedings. App. 425, 428-29, 340 P.3d 768 (2014); Wahlgren v. Dept. of Transp., Driver & Motor Vehicles Serv. Branch, 196 Or. App. 452, 457, 102 P.3d 761 (2004). This court has held repeatedly that ORAP 5.45(1) is adequate to preclude habeas corpus relief. 5810730 *5 (D.Or. Nov. 7, 2014) See Ofenham v. Coursey, 2014 WL (citing cases). Petitioner argues, however, that the requirement that a state prisoner first raise his constitutional claims to constitutional rights renders inadequate support the to the adequate state rule doctrine. very the agency invocation violated his unconstitutional rule and of that the independent and I disagree. There is no unfairness, irregularity, or injustice in a state appellate court's insistence that an appellant first present his objection to the agency from which he seeks judicial review. preservation requirement assists record to facilitate review, efficiency. See in the development of a The full and promotes fairness and judicial Entrepreneurs Found., 267 Or. App. at 429. Petitioner offers no convincing support for his argument that the preservation rule violates 13 -- OPINION AND ORDER due process. Hence, because petitioner's due process claims were rejected by the Oregon Court o.f Appeals based upon an independent and adequate state procedural rule, and in the absence of any showing to excuse this procedural default, federal habeas corpus relief is precluded. I similarly reject petitioner's alternate argument that state remedies are ineffective under 28 U.S.C. virtue of the fact that he must first claims to the parole board. 1758639, *7 (D.Or. Jan. 23, Cir. cert. denied, 2013), See 4 by raise his cionstitutional Newcomb v. Belleque, 2012 WL 2012), aff'd 536 Fed. Appx. 721 (9th 134 S.Ct. 1557 2010 WL 3893936 *2-*3 (D.Or. Sept. 29, set forth below, 2254(b)(l)(B)(ii), § (2014); Baker v. Nooth, 2010). Alternatively, as I conclude that petitioner's due process claims lack merit. II. The Merits A. Standards A petition for writ of habeas corpus, filed by a state prisoner, shall not be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication resulted in a decision that was "contrary to, or ·involved an unreasonable application of, clearly established Federal law;'' or "resulted in a decision 4 that was based on an unreasonable 28 U.S.C. § 2254 (b) (1) (B) (ii) excuses the exhaustion requirement when circumstances exist that render state remedies ineffective to protect the rights of the petitioner. 14 -- OPINION AND ORDER determination of the facts in light of the evidence presented." U.S.C. § 2254 (d) (1) (2011). & 28 (2); Harrington v. Richter, 562 U.S. 86, 100 Cullen v. The petitioner carries the burden of proof. Pinholster, 131 S.Ct. 1388, 1398 (2011). A state court decision involves an unreasonable application of clearly established federal law if it correctly identifies the governing legal standard, but unreasonably applies it to the facts of the pric;oner's case. (2003); Himes v. Thompson, unreasonable application incorrect application. 134 Woodall, S.Ct. Andrade, Lockyer v. 538 U.S. 63, 336 F.3d 848, 852 (9th Cir. 2003). of federal 1702 is different 562 U.S. Harrington, 1697 I law at "A (2014). 75 An from White 101; an v. state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' correctness of the state court's decision." on the 562 U.S. Harrington, at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); White, 134 S.Ct. at 1706-07; Burt v. Titlow, 134 S.Ct. 10, 16 (2013). B. Analysis Petitioner challenges the board's decisions in BAF Jtl4 and ARR #10 deferring his parole by 24 months. the board diagnosing considered a petitioner antisocial features. psychological with Resp. 15 -- OPINION AND ORDER In reaching its decision, evaluation Personality Exh. by Disorder, 112 at 39-44; Exh. Dr. Page NOS, with 103 at 47. Additionally, Dr. Page opined that (1) petitioner's version of the murder and rape was (2) demonstrate; "considerably petitioner's more perspective potentially manipulative and persuasive; psychopathology for mild" than may (3) be the facts viewed as petitioner shows no which imminent psychiatric referral may be indicated; (4) the nature of petitioner's crime precludes confident assessment of his dangerousness particularly in light of his capability to delay gratification and curb his impulses in the interest of premeditated execution of his crimes; and (5) his violence potential may remain high, even though he has programmed well for many years. Resp. Exh. 112 at 39-44. Based on Dr. Page's evaluation and the evidence in the record as a whole, the board first applied the 1984 rules to conclude that petitioner suffers from a severe emotional disturbance so as to constitute a Resp. Exh. danger to the health or safety of the community. 104 at ER-13 In the alternative, (ARR #10). solely on Dr. evidence (BAF #14); to see also Resp. Exh. the board concluded that based Page's psychological report, conclude that 101 at 9 petitioner there was sufficient suffers from a severe emotional disturbance. In the instant proceeding, petitioner argues that (1) under the 1988 rules, the board violated his right to due process because Dr. Page's psychological evaluation does not support the finding that petitioner suffers from a severe emotional disturbance; and 16 -- OPINION AND ORDER (2) the board's application of the 1984 rules, is "constitutionally flawed. " 5 In v. Cooke, 562 U.S. 216, 220 (2011), the Supreme Court held that there is no right under the Federal Constitution to be conditionally released on parole before the expiration of a valid sentence. interest to procedures. However, if state law creates a protected liberty parole, Id. the Due Process Clause requires fair In the parole context, the procedural protections are "minimal," and require only that the state prisoner be given the opportunity to be heard and a statement of reasons why parole was denied. Prison Id. at 220; Miller v. Oregon Bd. of Parole and Post- Superv., 642 F.3d 711, 716 (9th Cir. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011). 2011); Roberts v. If the state affords the procedural protections required by Cooke, "that is the end of the matter for purposes of the Due Process Clause." Roberts, 640 F.3d at 1046. Here, assuming that ORS 144.125 (1981) creates a due process right to early release on parole, that he was denied the 6 minimal petitioner has made no showing procedural protections (the 5 Because petitioner has not addressed his ex post facto or Eighth Amendment claims, he has failed to demonstrate that habeas relief is warranted under either constitutional provision. 6 See Miller, 642 F.3d at 714-16 (state parole statute establishes protected liberty interest when it uses language that creates a presumption of parole if certain conditions are satisfied) . 17 -- OPINION AND ORDER opportunity to be heard and to a written decision) as required by the Due Process Clause. Moreover, assuming that the Due Process Clause also requires that the board's decision be supported by "some evidence," and be free state parole rules, 7 from the arbitrary application of petitioner has failed to demonstrate that the board's decision violated those protections. board's decision to petitioner's August 1, utilize the 1984 On the contrary, the rules, in light 1984 election into the matrix system, of is reasonable and supported by "some evidence." The board explained that its previous reliance on petitioner's 1988 election was because, prior to the Peek decision, there was no reason to formulate a practice for determining when an offender first opts into the matrix system. petitioner!' s 1984 election because The board choose to rely upon it permitted the board to consider the most information possible for making its decision. The fact that the board had voided its August 10, 1984, order, did not necessarily void petitioner's proceed under the matrix system. 7 1984 signed application In sum, the board's determination See Branham v. Davison, 433 Fed.Appx. 491, 492 (9th Cir. May 20, 2011) ("even after Cooke the Due Process Clause must still protect parole applicants against truly arbitrary determinations to deny parole-such as those based on random factors unrelated to the applicant's own record"); Castro v. Terhune, 712 F.3d 1304, 1314 n. 4 (9th Cir. 2013) (prison officials' validation of inmates as gang affiliates must be supported by "some evidence") . 18 -- OPINION AND ORDER to that petitioner elected into the matrix system in 1984 was not arbitrary and is supported by some evidence. The board's alternate decision to defer petitioner's parole under the 1988 rules, evaluation, is also based solely on Dr. supported by Page's psychological evidence. some Dr. Page's diagnosis that petitioner suffers from a personality disorder with antisocial features; that petitioner has minimized the facts of his crimes and is potentially manipulative and persuasive; petitioner's evidence potential that for petitioner violence may remain suffers from a and that high, severe is some emotional disturbance rendering him a danger to the health and safety of the community. In sum, petitioner has failed to demonstrate that the board's deferral of his parole release date violated his process. to due The state courts' rejection of his due process claims is neither contrary to, nor an unreasonable established law. warranted. right federal 28 U. S.C. § Ill Ill Ill Ill Ill Ill 19 -- OPINION AND ORDER Accordingly, 2254 (d) (1). of, clearly habeas relief is not CONCLUSION Based on the foregoing, petitioner's habeas petition (ECF No. 3) is denied. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. DATED this See 28 U.S.C. § 2253(c) (2). ;J.,5' day of April, 2015. Malcolm F. Marsh United States Magistrate Judge 20 -- OPINION AND ORDER
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