Newcomb

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAWN MICHAEL NEWCOMB, Case No. 6:25-cv-00676-IM

Petitioner, OPINION AND ORDER

v.

COREY FHUERE, Superintendent, Oregon

State Penitentiary,

Respondent.

IMMERGUT, District Judge.

Petitioner Shawn Michael Newcomb (“Newcomb”), an adult in custody at the Oregon

State Penitentiary, filed this habeas corpus action pursuant to 28 U.S.C. § 2254 (“Section 2254”)

challenging the Oregon Board of Parole and Post-Prison Supervision’s (“Board”) 2021 decision

to make no changes to Newcomb’s parole status (ECF No.1). Because Newcomb’s claims are

procedurally defaulted, the Petition for Writ of Habeas Corpus (ECF No. 1) must be denied.

///

///

PAGE 1 – OPINION AND ORDER

BACKGROUND

In the early morning hours of March 3, 1984, Portland Police officers discovered in a

parking lot a woman who was naked from the waist down, gasping for air, spitting blood, and

jerking violently on the pavement. (Resp’t Exs., Ex. 103 at 22,1 ECF No. 15.) The woman was

declared dead on arrival at a local hospital, and an autopsy revealed that she had been stabbed

several times in the neck, chest, and back. (Id.) Several witnesses reported seeing Newcomb with

the woman in the hours before her death. (Id.)

Approximately one month later, law enforcement arrested Newcomb in Reno, Nevada.

(Id.) When interviewed, Newcomb admitted to having sexual intercourse with the woman before

physically confronting her about allegedly stealing money from his wallet. (Id.) Newcomb

recalled kicking the woman and punching her several times in the chest but did not remember

having a knife in his hand. (Id.) When asked who he thought had stabbed the woman, Newcomb

replied that it was “probably me.” (Id.) Newcomb ultimately pleaded guilty to one count of

Murder, and the trial court imposed an indeterminate life sentence. (Id. at 29.)

In January 2003, the Board released Newcomb on parole. (Id. at 86, 90.) Eight months

later, however, the Board revoked Newcomb’s parole after he was found to have violated a

special parole condition by failing to inform his parole officer that he had engaged in a “dating”

relationship with two women. (Id. at 92, 151.) The Board subsequently declined to re-release

Newcomb, finding that he could “not be adequately controlled in the community.” (Id. at 153.)

The Board specified that its findings resulted “in a true life sentence.” (Id.) The Oregon Court of

1 When citing Respondent’s Exhibits, the Court refers to the exhibits page numbers

located in the lower right corner of each exhibit.

PAGE 2 – OPINION AND ORDER

Appeals affirmed without opinion. Newcomb v. Bd. of Parole and Post-Prison Supervision, 225

Or. App. 691, 202 P.3d 289 (2009) (table).

In April 2021, Newcomb sent a letter asking the Board “to reconsider its prior 2003 order

denying . . . all future parole consideration[.]” (Resp’t Ex. 103 at 159.) Newcomb argued that

reconsideration was necessary given his progress in prison and the Oregon Supreme Court’s

decision in Penn v. Bd. of Parole and Post-Prison Supervision, 365 Or. 607, 451 P.3d 589

(2019), which Newcomb alleged “brought into question whether the parole condition for which

[he] was violated was a legal condition.” (Id.) In response, the Board scheduled a “personal

interview hearing,” specifically explaining that such hearing is “discretionary” and would be

conducted for the purpose of “review[ing] [Newcomb’s] progress since [his] last hearing.” (Id. at

175.)

Prior to the hearing on November 3, 2021, Newcomb and his legal team submitted for the

Board’s review a lengthy supporting memorandum and materials documenting his progress

while incarcerated. (Id. at 177-214.) Newcomb also testified at length during the hearing,

answering the Board’s questions about his background, substance abuse history, and crime. (Id.

at 232-300.) Contrary to his previous statements, however, Newcomb claimed before the Board

that he had no memory of the murder because he “was in another place” after sniffing glue

throughout the day. (Id. at 234.) He told the Board that several of his prior statements to various

parties about the murder “were not true” and that he had “created and fabricated that story”

because he could not remember what happened and “was a coward.” (Id. at 233.)

After the hearing, the Board unanimously elected “not to make any changes to

[Newcomb]’s parole status[,]” memorializing its decision in Board Action Form 22 (“BAF 22”).

(Id. at 341.) The Board explained that it based its decision on a combination of factors, including

PAGE 3 – OPINION AND ORDER

Newcomb’s “changing stories regarding his motive and recollection of the brutal sexual assault

and murder[,]” his failure to understand or take responsibility for his past sexual offending, and

his minimization of a 2014 prison disciplinary violation. (Id.) Although Newcomb sought

administrative review of BAF 22, the Board adhered to its decision. (Resp’t Ex. 103 at 344-49.)

Newcomb then sought judicial review in the Oregon Court of Appeals, asserting in his

counseled appellate brief that Oregon Revised Statute (“ORS”) § 144.395 required the Board to

adopt rules governing “when, and under what circumstances, an inmate who has been denied

rerelease can subsequently be released[,]” and that in the absence of such rules the Board’s

decision “was arbitrary and ad hoc.” (Resp’t Ex. 105 at 2.) Newcomb also filed a supplemental

appellate brief pro se, raising the following assignments of error:

[1] After reopening petitioner’s case, the Board erred when it failed to address

petitioner’s claim that his parole was improperly violated based on an illegal

condition of parole as described in Penn v. Board of Parole and Post-Prison

Supervision, 365 Or. 607, 451 P.3d 589 (2019).

[2] The Board erred when it failed to release petitioner [in 2021] even though he

met the legal requirements for release.

[3] The Board erred when it failed to release petitioner in 1994 and he continues

to be eligible for release now.

(Resp’t Ex. 106 at 2-3.)

In a written decision, the Oregon Court of Appeals denied relief. Newcomb v. Bd. of

Parole and Post-Prison Supervision, 333 Or. App. 660, 661-62 (2024) (unpublished). With

respect to the claim raised in his counseled brief, the Court of Appeals noted that Newcomb had

argued before the Board that its “failure to identify the standards governing the personal

interview violated his right to due process[,]” not that the Board must engage in rulemaking

pursuant to ORS § 144.395. Id. at 661. The Court of Appeals explained that because Newcomb

“did not provide the [B]oard an opportunity to address the argument he makes on appeal, he

PAGE 4 – OPINION AND ORDER

neither preserved it for review nor exhausted his administrative remedies.” Id. The Oregon Court

of Appeals thus rejected Newcomb’s counseled claim. Id.

With respect to his supplemental claims, the Court of Appeals concluded that

Newcomb’s first and third supplemental assignments of error challenging the Board’s decisions

to revoke his parole in 2003 and to deny release in 1994 “precede[d] the 2021 personal

interview” and therefore fell “outside the scope of the [B]oard decision under review[.]” Id. The

Court of Appeals further concluded that although the second supplemental assignment of error

challenged “multiple aspects of the [2021] discretionary interview proceeding,” such challenges

did “not appear to have been raised to the [B]oard and are thus unpreserved and unexhausted.”

Id. at 662. The Court of Appeals thus rejected Newcomb’s supplemental claims and affirmed the

Board’s decision. Id.

Newcomb then sought review in the Oregon Supreme Court, renewing the state-law

argument presented in his counseled appellate brief but omitting the additional assignments of

error raised in his pro se supplemental brief. (Resp’t Ex. 109 at 7-9.) The Oregon Supreme Court

denied review. (Resp’t Ex. 110.)

On April 24, 2025, Newcomb filed a petition for federal habeas corpus relief,

reproducing in a single ground for relief sections of his supplemental pro se appellate brief.

(Compare Pet. at 4-5, ECF No. 1, with Resp’t Ex. 106 at 11-14, 42-43.) Newcomb appears to

argue here, as he did on appeal, that the Board (1) “illegally denied release” in 1994; (2)

unlawfully revoked his parole in 2003 “based on a parole condition that the Oregon Supreme

Court deemed to be illegal in Penn[;]” and (3) wrongfully refused in 2021 “to reopen his case

and reconsider the illegal condition of parole imposed[.]” (Pet. at 5.) Newcomb thus claims that

PAGE 5 – OPINION AND ORDER

the Board “denied [his] due process rights guaranteed by the Fifth and Fourteenth Amendments

to the United States Constitution when the Board denied re-release.”

Respondent urges this Court to deny habeas relief, arguing that Newcomb’s claims are

procedurally defaulted and outside the scope of the Board decision under review. (Resp. to Pet.

at 6-11, ECF No. 13.) Newcomb did not file a supporting brief or otherwise respond to

Respondent’s arguments.2 Newcomb therefore has failed to sustain his burden of demonstrating

that he is entitled to habeas relief. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002)

(recognizing that a habeas petitioner carries the burden of proving his case). Nevertheless, this

Court has thoroughly reviewed the existing record and agrees that Newcomb is not entitled to

habeas relief in this case.

DISCUSSION

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available

state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations

of prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (simplified). To exhaust

state remedies, a habeas petitioner must fairly present federal constitutional claims to each

appropriate state court, including the state’s supreme court with powers of discretionary review.

Id.; see also Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (explaining that “[e]xhaustion

requires the petitioner to ‘fairly present’ his claims to the highest court of the state”). If a petitioner

failed to present his claims to the state courts in a procedural context in which the merits of the

2 On December 29, 2025, this Court ordered Newcomb to show cause in writing by

January 30, 2026 why he failed timely to file a supporting brief and warned that his failure to

respond would result in this Court taking the petition under advisement on the existing record.

(ECF No. 21.) To date, Newcomb has not filed a supporting brief.

PAGE 6 – OPINION AND ORDER

claims were actually considered, the claims have not been fairly presented to the state courts and

are barred from federal review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In this respect,

a petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state

procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446,

451(2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Fair presentation required Newcomb to raise his claims to the Oregon Supreme Court in a

procedural context in which it would assess the merits of his claims. As Respondent points out,

Newcomb’s challenges to the Board’s decisions denying release in 1994 and revoking his parole

in 2003 are “outside the scope of the board decision under review[,]” Newcomb, 333 Or. App. at

661, and he otherwise failed to assert the federal nature of his supplemental claims before the

Oregon Court of Appeals, see Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (explaining that

fair presentation requires a petitioner to alert the state courts to the “specific constitutional

guarantee” at issue and provide “a statement of the facts that entitle [him] to relief”). More

importantly, however, Newcomb did not include the instant claims in his petition for review to the

Oregon Supreme Court, and thus the highest state court did not have an opportunity to pass on the

merits of those claims. (Resp’t Ex. 109.) Newcomb therefore failed fairly to present his claims,

and because he can no longer do so, they are procedurally defaulted. See ORS § 144.335(4)

(instructing that a person seeking review of a final Board order “shall file a petition for judicial

review with the Court of Appeals within 60 days after the date the [B]oard mails the order

disposing of the person’s request for administrative review”). Because the record provides no basis

on which Newcomb might overcome the default, his claims are barred from federal review.

PAGE 7 – OPINION AND ORDER

CONCLUSION

For the reasons stated, this Court DENIES the Petition for Writ of Habeas Corpus (ECF

No. 1), with prejudice. Because Newcomb has not made a substantial showing of the denial of a

constitutional right, this Court declines to issue a certificate of appealability. See 28 U.S.C. §

2253(c)(2).

IT IS SO ORDERED.

DATED this 18th day of May, 2026.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge

PAGE 8 – OPINION AND ORDER