Payton v. Thompson

*219 EDMONDS, J.

Plaintiff, an inmate in an Oregon prison, appeals from a judgment that dismissed his petition for a writ of habeas corpus under ORS 34.310 to ORS 34.730. We affirm.

Plaintiff filed his petition for a writ of habeas corpus on June 7,1996, seeking release on parole. He argues that he has been illegally incarcerated since November 5, 1994. He challenges a 1994 order of the parole board that extended his release on parole by two years. After he filed his petition, he moved for summary judgment pursuant to ORCP 47. Defendant responded to the motion for summary judgment and also filed a motion to dismiss plaintiff’s petition pursuant to ORS 34.680(1). 1 The trial court denied plaintiffs motion for summary judgment and granted defendant’s motion to dismiss, resulting in this appeal.

For purposes of the motion to dismiss, plaintiff alleges and defendant does not contest the following facts. Defendant’s custody of plaintiff is pursuant to the sentence of the Klamath County Circuit Court of May 8, 1986, sentencing him to the custody of the Department of Corrections (DOC) for life with a ten-year minimum sentence, as a result of a conviction for murder. Plaintiff was scheduled to be released on parole on November 5,1994, but before that date, the parole board extended his parole release date by two years. In March 1996, plaintiffs psychological status was re-evaluated, and the evaluator determined that he suffers from a “Mixed Personality Disorder with antisocial features and much over controlled aggression and hostility” and that he is “a danger.” One day before plaintiff filed this petition in the circuit court, the parole board, relying on the March evaluation coupled with the other information that it had, concluded that plaintiff had “a severe emotional disturbance that constitute [d] a danger to the health or the safety of the *220 community.” Consequently, the parole board postponed plaintiffs release on parole until October 5, 1998, under the criteria for release on parole that were in existence at the time that plaintiff committed his crime.

Plaintiff asserts that the parole board’s refusal to release him on parole in November 1994 violated the ex post facto clauses of the Oregon and United States Constitutions because the parole board at that time relied on the legal criteria in ORS 144.125(3)(a) as amended in 1993 to extend his parole date. He argues that it should have applied the criteria for release on parole that were in effect at the time that he committed his crime. See Meadows v. Schiedler, 143 Or App 213 , 924 P2d 314 (1996) (holding that the retroactive application of the 1993 amendments to ORS 144.125(3) results in an ex post facto violation). According to plaintiff, the parole board was required to release him on parole on November 5, 1994, after it received a psychological report that stated that he would be a reasonable risk on parole. Therefore, he concludes that he is now entitled to be released on parole. Defendant counters that, even if plaintiff is correct about the unconstitutionality of the parole board’s 1994 order, the parole board’s 1996 order, which was decided under the appropriate criteria, superseded the 1994 order before plaintiff filed his petition.

' We begin our analysis of the parties’ arguments by reviewing the general principles of habeas corpus under the circumstances alleged by plaintiff. A habeas corpus writ commands a custodian to bring a petitioner before the court to inquire into the legality of imprisonment when the petitioner alleges that he is unlawfully imprisoned or when he “alleges other deprivations of [his] legal rights of a kind which, if true, would require immediate judicial scrutiny” and where there is no other available, timely remedy. Penrod/Brown v. Cupp, 283 Or 21, 28 , 581 P2d 934 (1978). In Meadows , we said that if the plaintiff proves on remand to the circuit court that the order postponing parole was made under the 1993 version of ORS 144.125(3), the remedy would be to direct the parole board to order plaintiffs release unless it determined that, under the version of the statute in effect at the time that the plaintiff committed his crime, the plaintiffs parole should be postponed. 143 Or App at 221 .

*221 In this case, plaintiff alleges that the parole board was required to release him on parole from defendant’s custody in 1994 and that he is entitled to immediate release. In that context, the remedy that he seeks contemplates inquiry into the legality of imprisonment or restraint at the time of the filing of the petition under ORS 34.700(1). That statute provides:

“If it appears that the party detained is imprisoned or restrained illegally, judgment shall be given that the party be discharged forthwith; otherwise, judgment shall be given that the proceeding be dismissed and the party remanded.”

It necessarily follows that the proper inquiry in this case is whether plaintiff is entitled to release at the time that he filed his petition. Relief is not available if plaintiffs incarceration was lawful at the time that the remedy of habeas corpus was sought, even if the imprisonment was unlawful for an unrelated reason at some prior time. 2

Here, plaintiff was serving a life sentence when he filed his petition for a writ of habeas corpus on June 7, 1996. By that time, the 1994 release date was a legal nullity. Before the date for release in 1994 occurred, the order for release had been superseded. Plaintiff’s custodial status on June 7, 1996, was pursuant to his life sentence, which had not been completed. The only order regarding release on parole in effect at that time was a 1996 order that provided for release in October 1998. Plaintiff’s petition does not allege that the 1996 order constituted an ex post facto application. On these allegations and facts, the remedy of habeas corpus is not available to plaintiff because he has not demonstrated that *222 he was entitled to release from custody on June 7,1996. Consequently, the trial court did not err in dismissing his petition. 3

Affirmed.

ORS 34.680(1) provides:

“The defendant may, before the writ issues, move to deny the petition on the grounds that the petition fails to state a claim for habeas corpus relief. The defendant may, at any time after the writ issues, move to dismiss the writ on the grounds that the pleadings, including the petition, the return, the replication, if any, and any supporting evidence, demonstrate that plaintiff has failed to state or establish a claim for habeas corpus relief.”

Several jurisdictions have held similarly, under varying fact situations, including United States v. Kenton, 287 F2d 534, 536 (2nd Cir 1961), cert den 368 US 846 (1961) (holding that a delay of 113 days, after parolee was retaken for parole violation and before a hearing was held, was unreasonable, but that the delay did not render the hearing a nullity and did not render the subsequent confinement unlawful); United States v. Universita, 192 F Supp 154, 156 (SDNY1961) (holding that an unreasonable delay of a preliminary examination hearing was unlawful; however, once the grand jury returned an indictment, petitioner was then in lawful custody and was not entitled to be released on a writ of habeas corpus); and Victoria v. Young, 392 P2d 509 (Nev 1964), overruled on other grounds Shelby v. Sixth Judicial District Court, 414 P2d 942 (Nev 1966).

The dissent would hold that the parole board’s 1996 order was dependent on the validity of the 1994 order postponing his release and that because the 1994 order was unconstitutional, it necessarily follows that the 1996 order is also invalid, resulting in plaintiffs entitlement to the release on parole. The short answer to the dissent’s argument is that the authority of defendant to incarcerate plaintiff is derived from the Klamath County judgment and not the parole board’s failure to apply the appropriate release criteria. Jones v. Thompson, 156 Or App 226 , 968 P2d 380 (1998).