Odoms v. Kelly

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DONALD C. ODOMS,

Case No. 6:19-cv-00702-IM

Petitioner,

OPINION AND ORDER

v.

BRANDON KELLY, Superintendent,

Oregon State Penitentiary, et al.,

Respondents.

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IMMERGUT, District Judge.

Petitioner Donald C. Odoms (“Odoms”) brings this habeas corpus proceeding pursuant to

28 U.S.C. § 2254, alleging that he is wrongfully confined beyond his sentence expiration date in

violation of his right to due process and to be free from cruel and unusual punishment. For the

reasons set forth below, this Court DENIES Odoms’ Habeas Petition (ECF No. 1) and

DISMISSES this proceeding, with prejudice.

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1 – OPINION AND ORDER

BACKGROUND

In 1988, a jury convicted Odoms of kidnapping in the first degree, rape in the first degree,

sodomy in the first degree, compelling prostitution, promoting prostitution, robbery in the third

degree, operating a motor vehicle in violation of a habitual offender order, and felony driving

while revoked. Resp’t Exs. (ECF No. 20), Ex. 101 at 5. The trial court imposed the following

sentences on the three most serious charges: Count One (kidnapping in the first degree), a

thirty-year indeterminate sentence, with a fifteen-year minimum; Count Two (rape in the first

degree), a thirty-year indeterminate sentence, with a fifteen-year minimum, consecutive to Count

One; Count Three (sodomy in the first degree), a thirty-year indeterminate sentence, with a

fifteen-year minimum, concurrent to Count Two. Id. at 5-6. The trial court also imposed a

ten-year indeterminate sentence on Count Four (compelling prostitution), to be served

consecutive to Counts One and Two. Id. at 6. The remaining sentences were imposed to run

concurrently with Count Four. Id. at 6-7.

On March 14, 1990, the Oregon Board of Parole and Post-Prison Supervision (“Board”)

issued Board Action Form (“BAF”) 3, “unsumming” Odoms’ consecutive prison term ranges,

thereby giving him a prison term range of 180-260 months, based on its finding that “consecutive

sentences are not appropriate penalties for the criminal offenses involved.” Resp’t Ex. 107 at 3-4.

The Board listed Odoms’ goodtime release date as July 22, 2035, and his sentence expiration

date as November 19, 2058. Id. at 1.1

1 Under Oregon law, OISC determines an offender’s maximum and good time release

dates based on the sentences imposed by the trial court, and the Board determines the duration of

incarceration, i.e., the prison term range. Severy v. Bd. of Parole and Post-Prison Superv., 318

Or. 172, 176 (1993).

2 – OPINION AND ORDER

The Board released Odoms on parole in December 2007, and subsequently revoked his

parole in 2013. Resp’t Ex. 105 at 5. On August 21, 2013, the Board issued BAF 25, denying

Odoms re-release on parole and setting a projected parole release date of February 7, 2015.

Resp’t Ex. 111 at 3. The Board listed Odoms’ goodtime release date as November 7, 2043, and

his sentence expiration date as February 2, 2059. Id. at 1. The Board has repeatedly deferred

Odoms’ release on parole since that time. See Resp’t Ex. 131 at 6.

On or about February 23, 2017, Odoms filed a state habeas corpus petition alleging that

BAF 3 converted his consecutive sentences to concurrent, that his goodtime release date is

February 14, 2017, and that he is entitled to immediate release. Resp’t Exs. 102, 105 & 124. The

state moved to dismiss Odoms’ habeas petition, arguing that it was barred because (1) he could

seek judicial review of the Board’s most recent order deferring his release on parole, (2) he had a

pending mandamus proceeding between the same parties, (3) issue and claim preclusion applied,

and (4) he had an adequate remedy at law. Resp’t Ex. 123. The state court denied the petition

based on the state’s argument and authorities. Resp’t Exs. 125-27.

Odoms appealed, arguing that the state court erred in relying on the state’s arguments to

deny habeas relief. Resp’t Ex. 128. Odoms filed a pro se supplemental brief arguing that BAF 3

“overrode [the] sentences imposed by [the] judge,” and that his “continued incarceration is in

violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.”

Resp’t Ex. 129 at 6-9. The Oregon Court of Appeals affirmed without opinion. Odoms v. Kelly,

295 Or. App. 143 (2018).

Odoms filed a petition for review in the Oregon Supreme Court arguing that the trial

court erred in denying habeas relief because (1) his failure to seek review of BAF 3 did not

3 – OPINION AND ORDER

preclude habeas, (2) the fact that he had a pending mandamus proceeding did not preclude habeas

relief, (3) his claim was not barred by issue or claim preclusion, and (4) he has no adequate

remedy at law. Resp’t Ex. 131 at 11. Under the heading “Reasons for Allowing Review,” Odoms

argued:

This case “presents significant open questions of state law. This

court should allow review to address how the preclusion rules from

ORS 34.330(4) and ORCP 21 A(3) apply when a plaintiff files a

writ of habeas corpus while other litigation is pending or has been

filed previously. This court should also allow review to clarify the

proper vehicle for an inmate to challenge DOC’s sentence

computation when that sentence computation forms the basis for

parole board decisions. As this case illustrates, inmates, DOC, the

parole board, and the lower courts would benefit from clarify [sic]

of that issue.

Id. at 11-12 (emphasis added).

Odoms’ supporting argument consisted of a single sentence stating that he “incorporates

and relies on the arguments made in his brief in the Court of Appeals.” Id. at 12. Appellate

counsel made no reference to the arguments raised in Odoms’ pro se supplemental brief or to any

provision of the U.S. Constitution in his assignments of error or in the body of the petition for

review. The Oregon Supreme Court denied review. Odoms v. Kelly, 364 Or. 680 (2019).

DISCUSSION

In the instant proceeding, Odoms alleges that the Board converted his consecutive

sentences to concurrent in BAF 3, and his good time release date is properly calculated to be

February 14, 2017. Pet’r’s Habeas Pet. at 8-9. Odoms contends that his continued confinement

violates his right to due process. Id. at 9; Pet’r’s Br. in Supp. (24) at 6.2 In his supporting brief,

2 Odoms raises similar claims in Odoms v. Kelly, 6:18-cv-01122-IM, that the Court also

denies on this date.

4 – OPINION AND ORDER

Odoms appears to raise a second ground for relief, arguing that the state habeas court erred in

concluding that habeas relief was not warranted and that its erroneous decision violated his right

to due process. Pet’r’s Br. in Supp. at 13.

Respondent argues that this Court should deny habeas relief because Odoms procedurally

defaulted his available state remedies by failing to raise any constitutional issue in his petition for

review to the Oregon Supreme Court. Odoms does not argue otherwise. For the reasons set forth

below, this Court denies Odoms’ habeas petition on the basis that he procedurally defaulted his

available state remedies and, in any event, the state court’s denial of his due process claim is

neither contrary to, nor an unreasonable application of clearly established law. See 28 U.S.C.

§ 2254(d)(1).

I. Procedural Default of Available State Remedies

Generally, a state prisoner must exhaust all available state court remedies either on direct

appeal or through collateral proceedings before a federal court may consider granting habeas

corpus relief. 28 U.S.C. § 2254(b)(1). “[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 afford[ing] the state courts a meaningful opportunity to consider

allegations of legal error.” Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (internal

quotation omitted); Baldwin v. Reese, 541 U.S. 27, 29 (2004). If a petitioner fails to present his

federal claims to the state’s highest court, and he is procedurally barred from doing so at the time

he files his federal habeas petition, the petitioner’s claims are procedurally defaulted. Baldwin,

541 U.S. at 29; Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007). A state prisoner is barred

from raising procedurally defaulted claims in federal court unless he “can demonstrate cause for

5 – OPINION AND ORDER

the default and actual prejudice as a result of the alleged violation of federal law or demonstrate

that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

Odoms procedurally defaulted his available state remedies by failing to raise his due

process claim in his petition for review to the Oregon Supreme Court. Odoms does not argue

otherwise and he does not argue that there is a basis to excuse his procedural default.

Accordingly, habeas relief is precluded

II. The Merits

In addition to being procedurally defaulted, habeas relief is not warranted because the

state courts’ denial of Odoms’ due process claim is neither contrary to, nor an unreasonable

application of clearly established law.

Odoms’ argument that he is being held past the lawful expiration of his sentence in

violation of his right to due process is premised on the assertion that “[t]he Oregon Legislature

intended for a board order ‘unsumming’ prison terms to change the unsummed sentences from

consecutive to concurrent.” Pet’r’s Br. in Supp. at 4. In Severy, however, the Oregon Supreme

Court rejected this argument, explaining that the Board is not authorized to unsum consecutive

sentences, but instead is limited to unsumming “terms of imprisonment set by the Board pursuant

to the ranges established for the offenses.” 318 Or. at 179 (emphasis in original). Odoms argues

that Severy was decided incorrectly by the Oregon Supreme Court. Pet’r’s Br. in Supp. at 5.

It is well settled that this Court must defer to a state court’s construction of state law.

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

Consequently, because the Oregon Supreme Court has held that the Board’s decision to unsum a

6 – OPINION AND ORDER

prisoner’s prison term ranges does not impact the consecutive nature of the sentences, Odoms has

failed to demonstrate that OISC’s calculation of his goodtime release date and sentence

expiration date violates his constitutional rights. See Wrenn v. Nooth, No. 6:09-cv-00703-TC,

2011 WL 5999263, at *2 (D. Or. Nov. 7, 2011) (deferring to the Oregon Supreme Court’s

holding in Severy), adopted 2011 WL 5999336 (D. Or. Nov. 28, 2011). Accordingly, the state

court’s rejection of Odoms’ constitutional claims is neither contrary to, nor an unreasonable

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

Odoms argues at length that the state court erred in concluding that state habeas relief was

barred as a matter of state law. See Pet’r’s Br. in Supp. at 6-13. It is well settled that habeas relief

is not warranted based on errors of state law. See 28 U.S.C. § 2254(a) (providing that a habeas

court shall entertain a habeas petition filed by a state prisoner only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States); Loftis v.

Almager, 704 F.3d 645, 647 (9th Cir. 2012) (holding that “[i]t is axiomatic that habeas relief lies

only for violations of the Constitution, laws, or treaties of the United States; errors of state law

will not suffice”). Accordingly, this Court denies habeas relief to the extent that Odoms raises a

claim based on the violation of state law.

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7 – OPINION AND ORDER

CONCLUSION

Based on the foregoing, this Court DENIES Odoms’ Habeas Petition (ECF No. 1) and

DISMISSES this proceeding, with prejudice. This Court DENIES a certificate of appealability

because reasonable jurists would not find it debatable whether the Court is correct in its

procedural rulings and 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.

DATED this _2_n_d_ day of April, 2020.

_____________________________

Karim J. Immergut

United States District Judge

8 – OPINION AND ORDER