The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT DOYLE MURPHY,
Case No. 6:18-CV-01697-JE
Petitioner,
FINDINGS AND RECOMMENDATION
v.
GARRETT LANEY,
Respondent.
Robert Doyle Murphy
4167482
Oregon State Correctional Institution
3405 Deer Park Drive SE
Salem, Oregon 97310-9385
Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General
James M. Aaron, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
JELDERKS, Magistrate Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging the Oregon Board of Parole and Post-
Prison Supervision’s (“Board’s”) 2016 decision deferring his
release for 24 months. For the reasons that follow, the Petition
for Writ of Habeas Corpus (#1) should be denied.
BACKGROUND
In 1976, Petitioner was convicted of Murder and sentenced
to life in prison with the possibility of parole. In 2007, the
Board released him to parole which it revoked the following year,
finding that he could not be adequately controlled in the
community. Respondent’s Exhibit 103, p. 291.
The Board released Petitioner to parole again in 2012, but a
November 10, 2015 arrest prompted the Board to once again revoke
his parole. The Board held a future disposition hearing on March
15, 2016 where it concluded that Petitioner could not be
adequately controlled in the community. It therefore denied him
re-release to parole and set a new parole release date of
November 9, 2017. Respondent’s Exhibit 103, pp. 291-92.
Petitioner administratively appealed the Board’s actions,
but the Board adhered to its decision. Petitioner next sought
judicial review, but the Oregon Court of Appeals affirmed the
Board’s decision without issuing a written opinion, and the
Oregon Supreme Court denied review. Murphy v. Board of Parole
and Post-Prison Supervision, 291 Or. App. 250, 416 P.3d 1106,
rev. denied, 363 Or. 390, 434 P.3d 33 (2018).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on
September 21, 2018 and argues three due process claims:
1. The Board’s decision not to continue his
release was arbitrary and capricious insofar
as the Board based its decision on the wrong
rules and stale psychological evaluations,
and did not connect its facts with its
conclusions;
2. The Board improperly deferred his
release for 24 months when it relied upon
evidence that lacked indicia of reliability
and denied him the opportunity to be heard;
and
3. The Board did not base its decision to
defer his release to parole on “some
evidence.”
Respondent asks the Court to deny relief on the Petition
because the underlying decision denying relief is neither
contrary to, nor an unreasonable application of, clearly
established federal law.
DISCUSSION
I. Standard of Review
An 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 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 decision is "contrary to . . .
clearly established precedent if the state court 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 arrives at a result different
from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06
(2000).
Under the "unreasonable application" clause of § 2254(d)(1),
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.
Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the
writ in cases where there is no possibility fairminded jurists
could disagree that the state court's decision conflicts with
[the Supreme] Court's precedents. It goes no farther."
Harrington v. Richter, 562 U.S. 86, 102 (2011).
Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to
“challenge the substance of the state court’s findings and
attempt to show that those findings were not supported by
substantial evidence in the state court record.” Hibbler v.
Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas
court cannot overturn a state court decision on factual grounds
“unless objectively unreasonable in light of the evidence
presented in the state-court proceeding.” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003). This is a “‘daunting standard—one that
will be satisfied in relatively few cases,’ especially because we
must be ‘particularly deferential to our state-court
colleagues.’” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir.
2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004)).
When a state court reaches a decision on the merits but
provides no reasoning to support its conclusion, the federal
habeas 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 federal
court independently reviews the record, it still lends deference
to the state court's ultimate decision and will only grant habeas
relief if the state court’s decision was objectively
unreasonable. Harrington v. Richter, 562 U.S. 86, 98 (2011);
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
II. Analysis
Petitioner argues that the Board’s decision to revoke his
parole and defer his release violates the due process principles
espoused in Superintendent v. Hill, 472 U.S. 445 (1985) and Wolff
v. McDonnell, 418 U.S. 539 (1974). While these cases outline
procedural and substantive due process protections, such
protections in the context of of state parole decisions are quite
limited. “There is no right under the Federal Constitution to be
conditionally released before the expiration of a valid sentence,
and the States are under no duty to offer parole to their
prisoners.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011)
(internal citation omitted). When a state creates a liberty
interest in parole as Oregon has, Miller v. Oregon Board of
Parole and Post-Prison Supervision, 642 F.3d 711, 715-16 (9th
Cir. 2011), the only federal constitutional requirements are that
the inmate be given an opportunity to be heard and provided with
a statement of reasons as to why his parole was denied.
Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442
U.S. 1, 16 (1979). These minimal procedural protections
constitute "the beginning and the end of the federal habeas
courts' inquiry. . . ." Swarthout v. Cooke, 562 U.S. at 220.
In this case, the Board provided Petitioner with notice of
his hearing, an explanation of his rights, and allowed him the
opportunity to provide a written statement as well as to testify
orally at the hearing. Respondent’s Exhibit 103, pp. 7-13, 181-
86. The Board also advised Petitioner as to the reasons
underlying the deferral of his parole orally and in writing. Id
at 234-36, 238-41. In response to Petitioner’s administrative
appeal, the Board provided additional explanation for its
decision. Id at 282-92. In this respect, the Board complied with
the due process requirements as set out by Cooke.
Petitioner argues that his due process protections should be
greater than those identified in Cooke, however, and that
Respondent’s reliance on Cooke and Greenholtz is misplaced. He
notes that Cooke involved California parole statutes and rules,
and that Greenholtz involved the Nebraska parole system. He
contends that Oregon’s parole system is distinct from the systems
administered by California and Nebraska and urges this Court not
to apply Cooke but, instead, to apply Stogsdill v. Board of
Parole and Post-Prison Supervision, 342 Or. 332 (2007), a
decision that predated Cooke by four years.
As discussed in the Standard of Review section above,
federal habeas corpus relief may only be granted if a state
court’s decision runs afoul of a holding by the U.S. Supreme
Court, and does so in a way that is so unreasonable that no
fairminded jurist could agree with the state court. 28 U.S.C. §
2254(d); Richter, 562 U.S. at 102. In this respect, Cooke, not
Stogsdill, controls the inquiry in this case. As discussed above,
the Board complied with the due process requirements identified
by Cooke by providing Petitioner with an opportunity to be heard
and a statement of reasons as to why it decided to defer his
parole. Accordingly, upon an independent review of the record,
the Oregon Court of Appeals’ decision was not unreasonable and
habeas corpus relief is not warranted.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of
Habeas Corpus (#1) should be denied and a judgment should be
entered dismissing this case with prejudice. The Court should
decline 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).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a
district judge. Objections, if any, are due within 17 days. If
no objections are filed, then the Findings and Recommendation
will go under advisement on that date.
If objections are filed, then a response is due within 14
days after being served with a copy of the objections. When the
response is due or filed, whichever date is earlier, the Findings
and Recommendation will go under advisement.
DATED this day of November, 2019.
18th
s/ John Jelderks
John Jelderks
United States Magistrate Judge