holding that “recidivist statutes” which increase the punishment for a new offense based. on prior bad acts “do not violate the Ex Post Facto Clause if they are ‘on the books at the time 5 — OPINION AND ORDER the [present] offense was committed’”
How later courts described this case
- holding that “recidivist statutes” which increase the punishment for a new offense based. on prior bad acts “do not violate the Ex Post Facto Clause if they are ‘on the books at the time 5 — OPINION AND ORDER the [present] offense was committed’”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ALETHEA MARIE BAGUIAO,
Plaintiff,
v.
COLLETE PETERS; HEIDI STEWARD; Case No. 3:18-cv-02156-MO
JEREMIAH STROMBERG;
CHRISTOPHER RANDAL; and TRACEY OPINION AND ORDER
COFFMAN,
Defendants.
MOSMAN, J.,
This matter comes before me on Defendant Tracey Coffman’s Motion for Summary
Judgment [ECF 18]. Plaintiff Alethea Baguiao is a current prisoner coming before this court in
pro se. She alleges in her Amended Complaint (“AC”) [ECF 7], under 42 U.S.C. § 1983, that in
connection with being denied Short-Term Transitional Leave (“STTL”) from her current term of
incarceration, Ms. Coffman (1) subjected Ms. Baguiao to an unconstitutional ex post facto law
and (2) violated her Fourteenth Amendment rights by denying her administrative review. AC [7]
at 6-9!, For the reasons explained below, I GRANT Ms. Coffman’s motion for summary
judgment and dismiss this case with prejudice.
| For ease of navigation, I cite to the ECF document page numbers (for this source only).
4 MONT ART NAYDNTD
BACKGROUND
On February 28, 2018, Ms. Baguiao pled guilty and was convicted of two counts of Theft
in the First Degree in Lane County Circuit Court. Washington Decl. [ECF 19] Attach. 1 at 1-2.
She committed the two thefts on or about June 18, 2017, and July 5, 2017. Jd. She was sentenced
to 13 months of imprisonment on each count, to be served consecutively, followed by one year
of post-prison supervision. Jd. She began serving her sentence on March 15, 2018. Coffman
Decl. [ECF 20] § 11. This is her current term of incarceration. Id.
This is not Ms. Baguiao’s first term of incarceration. In fact, her recent conviction came
while she was under post-prison supervision for a previous offense. /d. For that previous offense,
Ms. Baguiao began serving a term of incarceration on November 3, 2009. Jd. While serving that
term, Ms. Baguiao was released on an Alternative Incarceration Program (“AIP”) non-prison
leave on November 2, 2015. Jd. However, after violating the terms of the AIP, she was returned
to prison on January 14, 2016. Jd.
On June 12, 2017, Oregon Administrative Rule § 291-063-0120 (“the Policy”) was
enacted, which defines the eligibility requirements for STTL. Jd. { 8. Under the Policy, an inmate
is not eligible for STTL if she has failed a non-prison leave (such as an AIP) or STTL during her
current term of incarceration, or during an immediately preceding term of incarceration. Or.
Admin. R. § 291-063-0120(2)(g). In relation to Ms. Baguiao’s current term of incarceration, the
term that began November 3, 2009, constitutes her “immediately preceding term of
incarceration” under the Policy. Coffman Decl. [20] § 11.
Ms. Baguiao alleges that on April 18, 2018, during her current term of incarceration, she
was informed by her intake counselor that, due to the Policy, she was ineligible for STTL
because of her failed AIP during her immediately preceding term of incarceration. AC [7] at 6.
She was informed that if she wanted an administrative review of the decision finding her
ineligible for STTL, she should send an Inmate Communication Form (“‘kyte”’) to the
Community Corrections Division. Jd.
On April 26, 2018, Ms. Baguiao sent a kyte to Ms. Coffman, who is the STTL
coordinator for the Oregon Department of Corrections (“ODOC”), requesting administrative
review of the decision denying her STTL. Coffman Decl. [20] {J 1, 9. Ms. Coffman responded in
a letter dated May 2, 2018, (“May 2 Letter”) which stated: “This is in response to your request
for Administrative Review of your STTL eligibility. According to Oregon Administrative Rule,
you are ineligible to receive STTL, as you noted, due to having failed AIP. Exceptions to this
rule are not made.” Jd. 9. On May 16, 2018, Ms. Baguiao sent a kyte to Jeremiah Stromberg
requesting further review of the decision. /d {] 10. The kyte was forwarded to Ms. Coffman, who
replied to Ms, Baguiao and explained that administrative review had been completed, referring
her to the May 2 Letter. Jd. Ms. Baguiao sent additional requests for further review to various
ODOC personnel, who generally replied that the matter was closed. See Pl.’s Resp. to Mot.
Summ. J. [ECF 24] at 3-5.
On December 14, 2018, Ms. Baguiao filed the present action. Compl. [ECF 1]. She filed
her Amended Complaint on January 1, 2014, naming only Ms. Coffman as Defendant. AC [7].
Ms. Coffman moved for summary judgment on August 28, 2019. Def.’s Mot. Summ. J. [18].
STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party
seeking summary judgment bears the burden of establishing the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
demonstrates no issue of material fact exists, the nonmoving party must go beyond the pleadings
and identify facts which show a genuine issue for trial. /d. at 324. A party cannot defeat a
summary judgment motion by relying on the allegations set forth in the complaint, unsupported
conjecture, or conclusory statements. Hernandez y. Spacelabs Med., Inc., 343 F.3d 1107, 1112
(9th Cir. 2003). Summary judgment thus should be entered against “a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
To determine whether summary judgment is proper, the court must view the evidence in
the light most favorable to the nonmoving party. Bell vy. Cameron Meadows Land Co., 669 F.2d
1278, 1281-82 (9th Cir. 1982),
DISCUSSION
Ms. Coffman moves for summary judgment on four grounds: (1) the Policy (Or. Admin.
R. § 291-063-0120) is not an ex post facto law; (2) Ms. Coffman did not violate Ms. Baguiao’s
Fourteenth Amendment rights; (3) Ms. Coffman is shielded from liability by the doctrine of
qualified immunity; and (4) Ms. Baguiao’s claims against Ms. Coffman in her official capacity
are barred by the Eleventh Amendment. Def.’s Mot. Summ. J. [18] at 1-2. I hold (1) the Policy,
as applied to Ms. Baguiao, is not an ex post facto law, and (2) that Ms. Baguiao’s Fourteenth
Amendment claim fails. Because both of Ms. Baguiao’s claims are without merit, I do not
address qualified immunity or the Eleventh Amendment.
1 The Policy as an Ex Post Facto Law
As the United States Supreme Court has made clear, “[t]he Constitution forbids passage
of ex post facto laws, a category that includes ‘[e]very law that changes the punishment, and
4 — OPINION AND ORDER
inflicts a greater punishment, than the law annexed to the crime, when committed.’” Peugh v.
United States, 569 U.S. 530, 532-33 (2013) (quoting Calder v. Bull, 3 Dall. 386, 390 (1798)).
Ms. Bagutao argues that the Policy is an ex post facto law as applied to her because she
committed her AIP violation (around January 14, 2016) before the Policy was enacted (on June
12, 2017). Pl.’s Resp. [24] at 7. In her telling, the decision to deny her STTL for her current term
of incarceration, a decision mandated by the Policy, is further punishment for the offense of
committing an AIP violation back in 2016. Jd. at 13. Therefore, because the Policy was enacted
after that violation occurred, the Policy is “retroactive in its application” by subjecting her to a
punishment for the AIP violation that was not on the books when she committed the violation.
See id. at 13, 15 (citing Weaver v. Graham, 450 U.S. 24, 29 (1981)).
While holding some intuitive appeal, Ms. Baguiao’s argument misidentifies which
offense is being punished. The decision to deny Ms. Baguiao an opportunity for STTL on her
current term of incarceration is not punishment for the 2016 AIP violation. Rather, it is part of
the punishment for her February 28, 2018, conviction, for which she is serving her current term
of incarceration. As described above, the crimes underlying that conviction—the two thefts—
were committed on June 18, 2017, and July 5, 2017. Washington Decl. [19] Attach. 1 at 1-2.
Because the Policy was enacted on June 12, 2017, before the thefts were committed, it does not
have a retroactive effect as applied to Ms. Baguiao’s sentence for her February 28, 2018,
conviction. Although the Policy makes prior bad acts relevant to the punishment of newly
committed crimes—including prior bad acts that predated the Policy’s enactment—that does not
transform it into an ex post facto law. Cf United States v. Kaluna, 192 F.3d 1188, 1199 (9th Cir.
1999) (holding that “recidivist statutes” which increase the punishment for a new offense based.
on prior bad acts “do not violate the Ex Post Facto Clause if they are ‘on the books at the time
5 — OPINION AND ORDER
the [present] offense was committed’”) (alteration in original) (citations omitted). Therefore, Ms.
Coffman did not subject Ms. Baguiao to an ex post facto law by denying her STTL based on the
Policy.
II. Ms. Baguiao’s Fourteenth Amendment Claim
While Ms. Baguiao labels her Fourteenth Amendment claim as an issue of equal
protection, in substance it is a procedural due process claim. See AC [7] at 9; Pl.’s Resp. [24] at
16-17. I will therefore treat it as such.
Ms. Baguiao alleges that “the Department of Corrections does not allow for inmates to
have an Administrative Review when denying them their Transitional Leave [(e.g., STTL)]....”
AC [7] at 9. Oregon Administrative Rule § 291-063-140, titled “Approval of Short-Term
Transitional Leave,” contains a provision which states: “Tf the transition plan is not approved, the
inmate may obtain an administrative review of that decision by submitting a request in writing to
the Assistant Director of Community Corrections Division.” Or. Admin. R. § 219-063-140(3)(d).
Ms. Baguiao argues that this provision is inapplicable to her situation because she was denied
STTL before even submitting a formal transition plan for approval; as a result, she argues there
is no administrative review process in place to cover when someone is denied STTL before
submitting a “release plan.” Pl.’s Resp. [24] at 16. Because, in her view, there is no
administrative review process established for someone in her exact situation, she was in fact
denied administrative review. Id.
I find Ms. Baguiao’s hair-splitting unpersuasive. Oregon Administrative Rule § 291-063-
0140(3)(d) applies squarely to someone in Ms. Baguiao’s position—it provides for an
administrative review process for someone who has been denied STTL. Furthermore, Ms.
Baguiao availed herself of that process. As described above, after being informed by her intake
&— OYPTINTON ANIT) ORNMER
counselor that the Policy made her ineligible for STTL, she was instructed that she could seek
administrative review of that decision by sending a kyte to the Community Corrections Division.
Ms. Baguiao did so. Ms. Coffman, on behalf of the Community Corrections Division, responded
to Ms. Baguiao’s request for review with the May 2 Letter explaining the basis for the denial of
STTL. In short, Ms. Baguiao received an opportunity to be heard and an explanation for why she
was ineligible for STTL. That was all the process that was due. See Greenholtz v. Inmates of
Neb. Penal and Corr. Complex, 442 U.S. 1, 15-16 (1979).
CONCLUSION
For the foregoing reasons, Ms. Coffman’s Motion for Summary Judgment [18] is
GRANTED. As a result, this case is DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this [ 4 day of December, 2019.
Chief United States District Judge
ADTROITAAT ARXIV ADKArD