# Akles v. Kelly

> District Court, D. Oregon · June 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10392127

## Case

- **Court:** District Court, D. Oregon
- **Decided:** June 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10392127

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JEROME DURRELL AKLES,
Case No. 6:19-cv-00986-SI
Petitioner,
OPINION AND ORDER
v.

BRANDON KELLY, et al.,

Respondents.

Anthony D. Bornstein
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204

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 Respondents
SIMON, District Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging a 2016 decision by the Oregon Board of
Parole and Post-Prison Supervision (“Board”) to defer his release
to parole by 24 months. For the reasons that follow, the Petition
for Writ of Habeas Corpus (#1) is denied.
BACKGROUND
In 1988, Petitioner was convicted in Multnomah County of
Burglary in the First Degree resulting in an indeterminate
sentence of 20 years. The following year, he was convicted in
Multnomah County of Rape in the First Degree, Robbery in the
First Degree, and Assault in the Second Degree and sentenced to
an aggregate indeterminate sentence of 50 years, with a minimum
term of 25 years, to be served consecutively to the 20-year
sentence from 1988.
In its first Board Action Form (“BAF”), the five Board
members unanimously “unsummed” Petitioner’s sentences, a
procedure the Board employed in cases involving consecutive
indeterminate sentences to establish a projected parole date. The
Oregon Court of Appeals explained the process this way:

When a prisoner was convicted of more than
one crime and sentenced to consecutive terms
of imprisonment, the Board set the prison
term and, thus, the initial parole release
date, by summing the guideline ranges of each
crime. The Board could, however, vote to
“unsum” the guideline ranges, which had the
effect of treating the ranges as concurrent.
Severy v. Bd. of Parole, 118 Or. App. 585, 588–89, 848 P.2d 1214,
1216, aff'd, 318 Or. 172, 864 P.2d 368 (1993) (citations and
footnotes omitted).
In Petitioner’s case, BAF #1 reflects that the Board voted
to “UNSUM ALL CS RANGES FOR AN UNSUMMED RANGE OF 90 TO 130
MONTHS, FINDING (A) CONSECUTIVE SENTENCES ARE NOT APPROPPRIATE
PENALTIES FOR THE CRIMINAL OFFENSES INVOLVED; AND (B) THE
COMBINED TERMS OF IMPRISONMENT ARE NOT NECESSARY TO PROTECT THE
COMMUNITY SECURITY.” Respondents’ Exhibit 103, p. 24. As a result
of the unsumming, the Board set an initial release date for 1998.
However, in 1997 it determined that Petitioner had a present
severe emotional disturbance that rendered him a danger to the
community. As a result, it deferred his release for 24 months.
Respondents’ Exhibit 103, pp. 34-36. It similarly deferred his

release every two years until 2006 when it released him to
parole, which it revoked two months later. Id at 55-61. The Board
paroled Petitioner and revoked his parole three more times in
2009, 2014, and 2016, respectively. Id at 66-77, 80-82, 152-53.
Following the 2016 revocation, the Board established a new
projected release date for Petitioner in 2018. He took an
administrative appeal wherein he argued that when the Board
unsummed his sentences in BAF #1, it effectively converted his
consecutive sentences to concurrent sentences. He concluded that
based upon the unsumming as well as the Board’s inability under
Oregon law to resurrect the consecutive nature of his sentences,
his sentences necessarily expired years ago such that the Board
lacked jurisdiction over him. Respondents’ Exhibit 103, pp. 228-
35.
The Board denied his request for administrative relief and
determined that “[t]he unsumming of the consecutive sentences for
the purpose of establishing a prison term has nothing to do with
the consecutive sentences imposed by the court.” Id at 242.
Petitioner appealed, arguing that the Board’s unsumming of his
sentences in 1990 necessarily caused his sentences to expire in
2009. The Oregon Court of Appeals affirmed the Board’s
administrative denial without issuing a written opinion, and the
Oregon Supreme Court denied review. Akles v. Board of Parole and
Post-Prison Supervision, 295 Or. App. 668, 434 P.3d 38, rev.
denied, 364 Or. 749, 441 P.3d 582 (2019).

On June 24, 2019, Petitioner filed this 28 U.S.C. § 2254
habeas corpus case in which he alleges that the Board lost
jurisdiction over him when it unsummed his sentences in 1990, and
that its continued exercise of jurisdiction over him violates the
Eighth and Fourteenth Amendments. Respondents ask the Court to
deny relief on the Petition because any challenge to the Board’s
1990 unsumming is untimely and, alternatively, because the
unsumming did not alter Petitioner’s sentence in any way.
DISCUSSION
According to Petitioner, when the Board unsummed his
sentences in 1990, it nullified the consecutive nature of his
sentences as imposed by the trial court. He claims that although
Oregon law provided the Board with the authority to unsum his
sentences, it did not empower the Board with the ability to later
resum those sentences. In this respect, he argues that once the
Board unsummed his sentences in 1990, he was subject only to
concurrent sentences irrespective of the sentencing court’s
imposition of consecutive sentences.
Respondents contend that Petitioner is not actually taking
issue with the Board’s deferral of his parole in 2016, but is
instead challenging the Board’s purported unsumming and resumming
of his sentences that occurred long ago. In this respect,
Respondents claim that Petitioner failed to file this challenge
within the one-year statute of limitations applicable to habeas
corpus cases. 28 U.S.C. § 2244(d)(1)(A) (requiring habeas
petitions to be filed within one year of the event to be

reviewed).
As noted in the Background of this Opinion, the Board
unsummed Petitioner’s sentences on January 3, 1990 in Board
Action Form #1. Respondents’ Exhibit 103, pp. 23-25. In that same
Board Action Form, the Board calculated Petitioner’s sentence
expiration date to be October 26, 2028 and his good-time date as
June 27, 2015. Id at 23. Thus, even when the Board unsummed
Petitioner’s sentences, it did not conclude that the sentences
would expire in 2009 based upon the unsumming. Because it was
apparent from BAF #1 in 1990 that the unsumming did not convert
Petitioner’s sentences to concurrent sentences as he argues, this
was the decision which triggered the initiation of the one-year
statute of limitations. See Mardesich v. Cate, 668 F.3d 1164,
1172 (9th Cir. 2012). Because the Board issued BAF #1 almost 30
years before Petitioner filed this habeas corpus case,
Petitioner’s challenge is untimely.
Even if Petitioner had timely filed this case, his Eighth
and Fourteenth Amendment claims necessarily rely on his
understanding that the Board had the ability to convert his
consecutive sentences to concurrent sentences. This is not the
case. The Oregon Supreme Court directly addressed this issue and
concluded that “the Board was authorized, not to ‘unsum’
sentences, but to ‘unsum’ terms of imprisonment set by the Board
pursuant to the ranges established for the offenses.” Severy v.

Board of Parole, 318 Or. 172, 179 (1993) (italics in original).
This state-court interpretation of state law is not subject to
re-examination by a federal habeas corpus court. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Where the Board did not alter
Petitioner’s sentences, the Oregon Court of Appeals’ decision to
deny relief on his Eighth and Fourteenth Amendment claims was
neither contrary to, nor an unreasonable application of, clearly
established federal law. See 28 U.S.C. § 2254(d). For all of
these reasons, habeas corpus relief is not appropriate.
///
///
CONCLUSION
For the reasons identified above, 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).
IT IS SO ORDERED.
DATED this 15th day of June, 2020.

_____/s/ Michael H. Simon_______
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392127. Public record. Not legal advice.