Ogden v. Kelly

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

COREY A. OGDEN,

Case No. 6:23-cv-00638-HZ

Petitioner,

OPINION AND ORDER

v.

BRANDON KELLY,

Respondent.

Corey A. Ogden

10721206

Two Rivers Correctional Institution

82911 Beach Access Rd.

Umatilla, OR 97882-9419

Petitioner, Pro Se

Ellen F. Rosenblum, Attorney General

James Aaron, Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, Oregon 97310

Attorneys for Respondent

HERNANDEZ, District Judge.

Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the

legality of his continued detention within the Oregon Department of Corrections. For the reasons

that follow, the Petition for Writ of Habeas Corpus (#2) is denied.

BACKGROUND

In 1996, Petitioner pled guilty to one count of Felony Murder and one count of Robbery

in the First Degree. Respondent’s Exhibit 103. The Plea Agreement provided, in part, “I know

that when I plead Guilty/No Contest to the charge(s) in paragraph 7, the maximum possible

sentence is Life + 20 years in prison” and that “the Court can impose a minimum sentence of 25

+ 10.” Respondent’s Exhibit 103, p. 1. The trial court accepted Petitioner’s guilty pleas and

sentenced him to life in prison with the possibility of parole after serving a minimum of 25 years.

Respondent’s Exhibit 101, p. 5.

After serving 25 years in custody, Petitioner filed a state habeas corpus action in which

he alleged that he had served his sentence in full. Respondent’s Exhibit 104. He asserted that he

“entered into a plea agreement for 25 years in prison, and his judgment of conviction imposed a

determinate 25 year sentence.” Id at 2. The state habeas court, adopting the State’s arguments,

concluded that Petitioner was entitled only to a hearing with the Board of Parole and Post-Prison

Supervision after 25 years, not automatic release. Respondent’s Exhibits 106 & 107. The Oregon

Court of Appeals affirmed the state habeas court’s decision without issuing a written opinion,

and the Oregon Supreme Court denied review. Ogden v. Kelly, 320 Or. App. 681, 512 P.3d, rev.

denied, 370 Or. 212, 519 P.3d 537 (2022).

Petitioner filed this federal habeas corpus case on May 1, 2023 and raises a single ground

for relief. He alleges that he entered into a plea agreement that carried with it a 25-year

determinate prison sentence yet the State refuses to release him despite his service of that entire

sentence. Petition (#2), p. 5. Respondent asks the Court to deny relief because the record belies

the claim.1

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's findings

of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of

correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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

1 Respondent alternatively reads Petitioner’s claim as potentially arguing that he believed he was

agreeing to a determinate sentence of 25 years in custody. That is not the claim Petitioner

appears to raise and, even if it were, such a claim would not entitle him to relief because: (1) he

did not present that claim in any state court proceeding, leaving it procedurally defaulted; and

(2) the claim is untimely because, after Petitioner signed the Plea Petition allowing for a life

sentence and the trial court sentenced him to an indeterminate life sentence in 1996, he had one

year in which to file for habeas relief alleging that he had been misled. See Rose v. Lundy, 455

U.S. 509, 519 (1982) (requiring federal habeas petitioners to first raise their claims to the highest

state court before presenting them in federal court); 28 U.S.C. 2244(d)(1)(A) (one-year federal

habeas statute of limitations begins to run after the conclusion of direct review or the time for

seeking such review); 28 U.S.C. 2244(d)(1)(D) (one-year statute of limitations may also begin

to run on the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence).

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, 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).

II. Analysis

The state habeas court determined that Petitioner was sentenced to an indeterminate life

sentence with the possibility of parole after 25 years, not a determinate 25-year sentence.

Respondent’s Exhibits 106 & 107. That conclusion on a matter of state law is binding in this

federal habeas proceeding and is dispositive of the claim he raises. Estelle v. McGuire, 502 U.S.

62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions."); Floyd v. Filson, 949 F.3d 1128,

1146 (9th Cir. 2020) (even a state court’s misreading of state law is not a ground for habeas

corpus relief). Accordingly, the state habeas court’s resolution of Petitioner’s claim is neither

contrary to, nor an unreasonable application of, clearly established federal law.

Although not obligated to do so, the Court has conducted an independent review of the

record in an attempt to ascertain Petitioner’s source of confusion regarding his sentence. See

Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (independent review required only when a

state court provides no rationale for its decision). The Plea Petition advised Petitioner that the

District Attorney would seek a 25-year sentence for Felony Murder, not life with a 25-year

minimum.2 Respondent’s Exhibit 103. After the trial judge accepted Petitioner’s guilty pleas and

imposed an indeterminate life sentence, a different judge of the Multnomah County Circuit Court

revoked Petitioner’s probation stemming from an earlier crime and specifically referenced the

basis for doing so as a “New murder conviction with 25 year sentence by Jg. Ellis.”

Respondent’s Exhibit 102, p. 2 (bold added). Judge Ellis’ Judgment, although imposing an

indeterminate life sentence for the Felony Murder conviction, also labels the sentence as a

“DETERMINATE SENTENCE,” while the State in this federal habeas case characterizes the

face of the Judgment as showing “an indeterminate term” of imprisonment. Compare

Respondent’s Exhibit 101, p. 5 with Response (#16), p. 1.

Despite any potential ambiguity created by the foregoing, the Plea Petition specifically

provided that the judge could impose a maximum sentence of life plus an additional 20 years in

prison; it did not advise Petitioner that the law prevented the judge from imposing a sentence in

excess of 25 years. Respondent’s Exhibit 103. In addition, the statute governing Petitioner’s

conviction for Felony Murder required the trial judge to sentence Petitioner to “imprisonment for

life” and “confine[ him] for a minimum of 25 years without possibility of parole, release on work

release or any form of temporary leave or employment at a forest or work camp.” ORS

163.115(5)(a) & (b) (1995). This statutory framework simply reiterated Oregon’s Measure 11

mandatory minimum sentencing statute (ORS 137.700) that took effect approximately six

months before Petitioner committed his crimes. State v. Francis, 154 Or. App. 486, 491, 962

2 Respondent has not provided a copy of the sentencing transcript to this Court, so it is not clear

what the prosecutor recommended at that proceeding.

P.3d 45 (1998) (Measure 11 “merely reiterates the mandatory minimum requirement contained

in ORS 163.115(5)(b) (1995).”).

Consistent with the foregoing, Judge Ellis sentenced Petitioner to an indeterminate life

sentence with a 25-year minimum term. Respondent’s Exhibit 101, pp. 4-7 (referencing “A term

for LIFE IMPRISONMENT WITH A MINIMUM OF 25 YEARS (300 MONTHS)

WITHOUT ANY POSSIBILITY OF RELEASE”) (bold and capitalization in original). Judge

Ellis therefore imposed the sentence that the law required and issued a Judgment that clearly

requires Petitioner to serve an indeterminate life sentence without the possibility of release for a

minimum of 25 years. Respondent’s Exhibit 101, p. 5.

CONCLUSION

For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) 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.

April 10, 2024

DATE Marco A. Hernandez

United States District Judge