Odoms v. Board of Parole and Post-Prison Supervision

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DONALD C, ODOMS, Case No. 6:19-cv-00074-SU

Petitioner, ORDER

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

IMMERGUT, District Judge.

Magistrate Judge Sullivan issued a Findings and Recommendation (ECF No. 26) on

January 3, 2020, recommending that the Court deny Petitioner Donald C. Odoms’ (“Odoms”)

Habeas Corpus Petition. Odoms timely filed objections (ECF No. 28). The matter is now before

this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). For the

reasons set forth below, this Court ADOPTS Judge Sullivan’s Findings and Recommendation,

with one factual correction. _

STANDARD OF REVIEW

Pursuant to the Federal Magistrates Act (“Act”), as amended, this Court may “accept,

reject, or modify, in whole or in part, the findings or recommendations made by [a] magistrate

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judge.” 28 U.S.C. § 636(b)(1)(C). Ifa party timely files an objection to a portion of the

magistrate judge’s findings and recommendation, “the court shall make a de novo determination

of those portions of the report or specified proposed findings or recommendation to which the

objection is made.” Jd.

For those portions of a magistrate judge’s findings and recommendation to which neither

party objects, the Act does not prescribe a standard of review. See Thomas v. Arn, 474 U.S. 140,

149-50 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir, 2003) (en banc).

Although in the absence of objections no review is required, the Act “does not preclude further

review by the district judge[] sua sponte ... under a de novo or any other standard.” Thomas,

474 US. at 154.

DISCUSSION

This Court has reviewed Judge Sullivan’s Findings and Recommendation and concludes

that she properly denied habeas relief on grounds one, two, and four because the state court’s

rejection of Odoms’ due process claims was neither contrary to, nor an unreasonable application

of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Judge Sullivan properly

construed grounds one, two, and four as due process challenges to the Oregon Board of Parole

and Post-Prison Supervision’s (“board”) decision to defer Odoms’ parole release date and

correctly held that the board provided the due process protections required under Swarthout v.

Cooke, 562 U.S. 216 (2011).

Un Swarthout, the Supreme Court held that the due process protections in a parole

eligibility hearing are limited to the opportunity to be heard and a statement of reasons why

parole is denied, and it is “no federal concern” whether a state parole board properly followed

state-prescribed procedures, 562 U.S. at 220-22.

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To the extent that Odoms argues that Swarthout does not apply, or that the decision in

Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972) setting forth the due process protections for

parole revocation hearings guarantees him greater procedural protections, his objection lacks

merit. See Greenholtz v. Inmates of the Nebraska Penal and Corr. Complex, 442 U.S. 1, 9-11

(1979) (holding that for purposes of due process requirements, parole release and parole

revocation are not the same). In this regard, the Court notes that the propriety of the board’s

revocation of Odoms’ parole in 2013 is not at issue in this proceeding. Rather, Odoms challenges

the board’s 2017 decision to defer his tentative parole release date, See Pet’r’s Habeas Pet. (ECF

No. 2) at 1, Resp’t Exs. (ECF No. 21), Ex. 111 at 8-10.

Judge Sullivan also correctly held that Odoms’ ex post facto claim premised on Or.

Admin. R. 255-62-0016, increasing the permissible time between parole release hearings, is not

cognizable because success “would result only in speedier parole consideration and not

necessarily speedier release.” Findings and Recommendation at 4. Odoms’ objection to this

finding lacks merit. See Gordon v. Premo, 757 F. App’x 627, 627-28 (9th Cir. 2019) (holding

that an increase in the time between parole release hearings is not cognizable on habeas review).

Further, Odoms’ assertion that his ex post facto claim is cognizable because

psychological evaluations were not permitted in 1988 and therefore success on his ex post facto

claim would result in a speeder release, lacks merit due to its faulty premise. As the board noted

in Administrative Review Response 11, the board was permitted to consider psychological

evaluations at parole release hearings in 1988 pursuant to OR. ADMIN. R. 255-60-006(1) & (7)

(1988). Resp’t Ex. 110 at 3; see also OR. REV. STAT. 144.223 (1987) (providing that the board

“may require any prisoner being considered for parole to be examined by a psychiatrist or

psychologist before being released on parole).

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Odoms’ objection to Judge Sullivan’s quotation of Board Action Form 28 is well taken,

At page eight of the Findings and Recommendation, Judge Sullivan states: “Specifically, the

Board noted, “On July 17, 2006, Dr. H.F. Shellman attempted to evaluate the inmate for purposes

of his hearing.’” Findings and Recommendation at 8. The correct date is June 17, 2016. See

Resp’t Ex. 103 at 192, This correction, however, does not change the proper resolution of the

proceeding.

CONCLUSION

This Court has reviewed de novo the portions of Judge Sullivan’s Findings and

Recommendation to which Odoms’ objected. This Court ADOPTS the Findings and

Recommendation (ECF No. 26), with the correction of the date referenced at page eight to June

17, 2016. The Court DISMISSES this proceeding, with prejudice, and DENIES a certificate of

appealability because Odoms 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.

gk

DATED this 9! day of January, 2020.

ae

_ Gab

Karin J. Immergut

United States District Judge

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