Jacobs v. Kelly, No. 6:2019cv00342 - Document 20 (D. Or. 2019)
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). Signed on 10/31/2019 by Judge Marco A. Hernandez. (Mailed to Pro Se party on 11/1/2019.) (joha)
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Jacobs v. Kelly Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SHAYNE MARTIN JACOBS, Case No. 6:19-cv-00342-HZ Petitioner, OPINION AND ORDER v. BRANDON KELLY, Respondent. Shayne Martin Jacobs 5790536 Oregon State Penitentiary 2605 State Street Salem, Oregon 97310-0505 Attorney for Petitioner Ellen F. Rosenblum, Attorney General James M. Aaron, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com HERNANDEZ, District Judge. Petitioner brings u.s.c. 2254 § decision by challenging the Oregon Supervision {"Board") years. this habeas corpus case pursuant to 28 For the the legality Board of of a Parole December and 2010 Post-Prison to defer his release for a period of five reasons that follow, the Petition for Writ of Habeas Corpus {#1) is denied. BACKGROUND In 1981, Petitioner pled guilty to one count of Murder and one count of Felony Murder in Clackamas County, resulting in two consecutive projected life sentences. parole release In date 2005, of the July 7, Board established a 2009. Respondent's Exhibit 114, p. 44. However, at a December 2008 exit interview, the Board concluded that Petitioner suffered from a present severe emotional disturbance that rendered him a danger to the health or safety of the community. Petitioner's release for two years. identical finding of severe As a result, it deferred Id at 58. The Board made an emotional disturbance during Petitioner's December 2010 exit interview and elected to apply a new statute {ORS 144.125 {2009)) that provided it with greater latitude in scheduling projected release dates. Using the new statute, the Board deferred Petitioner's release for five years and established a new parole release date of June 7, 2016. Id at 63. Petitioner decision, but sought the administrative Board denied relief. review Id at of the Board's 159-66, 178-81. Petitioner appealed that decision to the Oregon Court of Appeals 2 - OPINION AND ORDER where, with the assistance of counsel, he argued that the Board violated his ex post facto rights when it retroactively applied ORS 144 .125 more and related administrative (2009) onerous than those in effect at the r4les that were time Petitioner committed his crimes. Respondent's Exhibit 116. The Oregon Court of Appeals written affirmed opinion, the and Board's the decision Oregon Supreme without Court issuing a later denied habeas corpus review. Respondent's Exhibits 120, 121. Petitioner proceeding also which filed the procedural grounds, a Marion finding parallel County that state Circuit Court Petitioner's denied on remedy lay in a direct appeal, not a state habeas corpus proceeding. Respondent's Exhibit 106. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied this federal review. Respondent's Exhibits 111, 112. On March 7, 2019, Petitioner filed habeas corpus action in which he raises a variety of challenges to the Board's December 2010 decision. Respondent asks the Court to deny relief on the Petition because: (1) Petitioner fails to satisfy the pleading standards applicable to this case; (2) ex post facto claims are not cognizable in federal habeas corpus cases and, even if they are, any such claim lacks merit; and (3) Petitioner's remaining claims are procedurally defaulted. DISCUSSION I. Pleading Standards Respondent articulate his argues grounds that for 3 - OPINION AND ORDER Petitioner relief and does not supporting clearly facts as required by Rule 2{c) of the Rules Governing Section 2254 Cases. A review of pro the diligently attempted raised his in se to Petition reproduce underlying state claims the These violated the Ex Post Facto Clause, and unusual punishment. claims habeas proceedings. include right to equal protection, reveals and allegations his right that he Petitioner believes judicial that he review the Board to due process, and his right to be free from cruel Although these claims are principally identified in the procedural history portion of his Petition, the Petition asks this Court to grant relief on the claims he raised in his state-court proceedings which Petitioner articulated above. Petition {#1) at 6-7. Given that Petitioner is proceeding prose, a liberal reading of the Petition leads to the Court to conclude that he adequately pled his claims. See Erickson v. Pardus, 551 U.S. 89, 94 {2007) {requiring liberal construction of prose pleadings). II. Viability of Ex Post Facto Claims Based upon the Court's liberal construction of the Petition, the pleading includes the ex post facto claims Petitioner argued during his direct judicial appeal. Specifically, Petitioner argued that the retroactive application of ORS 144.125 {2009) and related administrative rules allowed the Board to: {1) postpone his release date for a longer duration than contemplated by the rules in effect {2) consider determining at factors the the time not length he committed previously of 4 - OPINION AND ORDER a parole his available deferral. crimes; to it and when Respondent's Exhibits 116, 118. Respondent argues that these ex post facto claims are not cognizable in a federal habeas corpus action. "[H]abeas jurisdiction is proper where a challenge to prison conditions would, if successful, prisoner's release." Ramirez v. necessarily Galaza, accelerate 334 F.3d 850, 859 the (9th Cir. 2003). Only claims that will necessarily lead to an earlier release fall within Grounds, 830 F.3d 922 the core of (9 th Cir. habeas 2016). corpus. Nettles In this case, v. were the Court to find an ex post facto violation, Petitioner would not be entitled to release, earlier only more frequent parole consideration where the Board could continue to defer his parole if appropriate. would result In this respect, because success in this action only in speedier necessarily Petitioner's "lie [] parole consideration speedier release, his and not claim does not at the core of habeas corpus." Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); see also Gordon v. Premo, 757 Fed. Appx. 627, 627-28 (9 th Cir. cognizable Petitioner's in 2019) the ex post (challenge habeas facto to 10-year parole corpus context) . cycle not Accordingly, claims are not properly before the Court for its consideration. 1 III. Exhaustion and Procedural Default In his remaining claims, Petitioner alleges that the Board's actions violated due process, equal protection, and constituted cruel and unusual punishment. Respondent asks the Court to deny 1 Conversion to a 42 U.S.C. § 1983 action is not proper where Petitioner has not named the proper defendants. See Nettles, 830 F.3d at 926 (a pleading must name a proper civil rights defendant to warrant conversion from a habeas corpus action to a 42 u.s.c. § 1983 action). 5 - OPINION AND ORDER relief on these claims because Petitioner failed to fairly present them to Oregon's state courts, leaving them procedurally defaulted and unpreserved for merits review. A habeas petitioner must exhaust his claims presenting them to the state's highest court, direct appeal or collateral proceedings, by fairly either through a before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error. ' " Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) Hillery, 474 U.S. 254, 257, (quoting Vasquez v. (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 this (2000); Castille v. respect, defaulted" his a Peoples, petitioner claim if he is 489 U.S. deemed failed to 346, to 351 have comply (1989). In "procedurally with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for 6 - OPINION AND ORDER the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986). Petitioner fairly presented federal ex post facto claims during his judicial appeal of the Board's 2010 decision but, as discussed above, present any those other claims federal are claims not cognizable. during his He direct did not judicial review of the Board's 2010 decision. While Petitioner raised a variety of federal constitutional challenges to corpus action, the Board's 2010 decision in his state he failed to pursue them on appeal. habeas Instead, he focused his briefing solely on whether a state habeas action was a viable decision. mechanism by which to challenge Respondent's Exhibit 108, 110. the Board's 2010 In this respect, with the exception of the ex post facto claims the Court addressed in Section II above, Petitioner failed to fairly present any federal claims to Oregon's state courts. these claims Because the time for raising in state court has passed, they are procedurally defaulted and Petitioner has not excused his default. Ill Ill Ill Ill Ill Ill Ill 7 - OPINION AND ORDER 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\ day of October, 2019. United States District Judge 8 - OPINION AND ORDER
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