Petition for Writ of Certiorari — Michael W. Jenkins, Petitioner v. Brigitte Amsberry

No. ____________________

________________________________________

IN THE SUPREME COURT

OF THE UNITED STATES

________________________________________

MICHAEL W. JENKINS,

Petitioner,

v.

BRIGITTE AMSBERRY,

Respondent.

________________________________________

On Petition For Writ Of Certiorari To

The United States Court Of Appeals For The Ninth Circuit

________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________

Anthony Bornstein

Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123

Attorney for Petitioner

QUESTION PRESENTED

Does the Ninth Circuit’s ruling, denying a Certificate of Appealabiliy to a habeas corpus

petitioner, contravene the statutory standard, under 28 U.S.C. §2253 (c) (2), for issuance

of such a certificate, as set forth in Slack v. McDaniel, 529 U.S. 473, 484 (2000)?

§

TABLE OF CONTENTS

Page

Table of Authorities ............................................................................................................. ii

Jurisdictional Statement....................................................................................................... 1

Constitutional and Statutory Provisions .............................................................................. 1

Statement of the case and opinions below ........................................................................... 1

Reasons this Court should grant certiorari .......................................................................... 2

Conclusion ......................................................................................................................... 10

INDEX TO APPENDICES

Appendix A

The Ninth Circuit Denial of COA (1219/19) ..................................... 1

Appendix B

Judgment of the District Court (07/28/19) ......................................... 2

Appendix C

Opinion and Order of the District Court (07/28/19) .......................... 3

i

TABLE OF AUTHORITIES

Page

Cases

Bailleaux v. Cupp,

16 Or. App. 573, 520 P.2d 483 (1974) ................................................................ 5

Ballard v. Estelle,

937 F.2d 453 (9th Cir. 1991) ............................................................................... 3

Board of Pardons v. Allen,

482 U.S. 369 (1987) ........................................................................................ 3-4

Boyd v. Bd. of Parole,

541 P.2d 1068 (Or. App. 1975) ........................................................................... 5

Campbell v. Blodgett,

997 F.2d 512 (9th Cir.1992) ................................................................................ 4

Elrod v. Swarthout,

2012 WL 28660 (E.D. Cal. Jan. 5, 2012) ............................................................ 3

Fetterly v. Paskett,

997 F.2d 1295 (9th Cir.1993) .............................................................................. 4

Hewitt v. Helms,

459 U.S. 460 (1983) ............................................................................................ 4

Hicks v. Oklahoma,

447 U.S. 343 (1980) ........................................................................................ 3, 4

Jackson v. Sanford,

79 F. Supp. 74 (N.D. Ga. 1947) .......................................................................... 3

Kentucky Dept. of Corrections v. Thompson,

390 U.S. 454 (1989) ............................................................................................ 9

Matthews v. Eldridge,

424, U.S. 219 (1976) .............................................................................................9

ii

Miles v. Williams,

386 F. Supp. 2d 582 (D. Del. 2005) .................................................................... 3

Moore v. Parke,

148 F.3d 705 (7th Cir. 1998) ............................................................................... 4

Morrisey v. Brewer,

408 U.S. 471 (1972) ............................................................................................ 5

Shelby v. Board of Parole,

244 Or. App. 348, 260 P.3d 682 (2011) .......................................................... 6, 6

Slack v. McDaniel,

529 U.S. 473 (2000) ........................................................................................ 3, 2

State v. Ludwig,

218 Or. 483, 486-487, 344 P.2d 764 (1959) ....................................................... 5

Walker v. Deeds,

50 F.3d 670 (9th Cir. 1995) ............................................................................. 4, 9

Ward v. Howes,

2011 WL 4527786 (E.D. Mich. Sept. 29, 2011) ................................................. 3

Whalen v. United States,

445 U.S. 684 (1990) ............................................................................................ 3

Wyatt v. Board of Parole and Post-Prison Supervision,

230 Or. App 581, 216 P.3d 926 (2010) ........................................................... 6, 7

Statutes

18 U.S.C. § 3006A(d)(7) .......................................................................................... 1

28 U.S.C. § 1254(1) ................................................................................................. 1

28 U.S.C. §2253 (c) (2) ................................................................................... 1, 2, 3

28 U.S.C. §2254 ................................................................................................... 1, 9

Constitutional Provisioms

U.S. Const. Amend XIV ..................................................................................passim

iii

The petitioner, Michael W. Jenkins, respectfully requests that a writ of certiorari

issue to review the judgment of the United States Court of Appeals for the Ninth Circuit

entered on December 19, 2019. (Appendix A).

Jurisdictional Statement

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution states in relevant part: “No state shall . . . deprive any person life, liberty, or

property without due process of law.” U.S. Const. Amend. VIV.

28 U.S.C. §2253(c)(2) setting forth the statutory standard for issuance of a

certificate of appealability in a habeas corpus case filed under 28 U.S.C. §2254.

Statement of the case and opinions below

This case involves a federal habeas corpus petitioner’s challenge to an adverse

action of the Oregon Board of Parole. After exhausting his state remedies, the petitioner

filed a petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. §2254. His case was filed

in the United States District Court for the District of Oregon. His case raised a claim for

relief grounded in the Due Process Clause of the Fourteenth Amendment to the United

States Constitution.

On July 28, 2019, the District Court denied the petition, dismissed the case and

declined to issue a Certificate of Appealability. (Appendix C). On the latter point, the

District Court found that Mr. Jenkins’ due process claim failed to meet the statutory

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standard for issuance of a Certificate under 28 U.S.C. §2253(c) (2). (Appendices B and

C). Mr. Jenkins then filed a Notice of Appeal.

On December 19, 2019, a two-judge panel of the United States Court of Appeals for

the Ninth Circuit also denied a Certificate of Appealability. Like the district court, the

Ninth Circuit found that the petitioner’s case had not met the statutory standard for issuance

of a Certificate. (Appendix A) (citing 28 U.S.C. §2253(c) (2) and Slack v. McDaniel, 529

U.S. 473, 484 (2000)).

Mr. Jenkins files this petition to seek review of that ruling. He

contends that the denial of the certificate raises “important federal question in a way that

conflicts with” this federal statute and this Court’s decision in Slack.

Reasons this Court should grant certiorari

Summarizing his argument in the Oregon Court of Appeals, Mr. Jenkins made the

following argument under the United States Constitution:

The [Oregon Parole] Board lacked jurisdiction to conduct a future disposition

hearing and establish a new release date because (1) petitioner was not on

parole and subject to parole conditions because he had not been released from

custody; and (2) once petitioner began serving his [consecutive state]

guidelines sentence, the [Oregon] Department of Corrections (DOC) and not

the board had jurisdiction over petitioner. Moreover, the board’s act of

conducting a future disposition hearing and denying petitioner release for an

additional 15 years when it lacked jurisdiction to do so violated petitioner’s

Fourteenth Amendment right to due process.

He sought the writ of habeas corpus on that basis.

The United States District Court’s decision sets forth the procedural history of the

case. (Appendix C, pages 1-3).

2

Federal courts have authority, in a habeas corpus case, to decide whether a state

parole board had jurisdiction over a state prisoner. See, e.g. Ward v. Howes, 08-13051,

2011 WL 4527786, at *14 (E.D. Mich. Sept. 29, 2011) (finding that the petitioner, in that

case, could not establish that the Michigan Department of Corrections and the Michigan

Parole Board lacked jurisdiction over him). See also Elrod v. Swarthout, 2012 WL 28660,

at *4 (E.D. Cal. Jan. 5, 2012) (Magistrate Judge ruling, addressing, but rejecting, on the

merits, a state prisoner’s claim that the California Board of Parole Hearings lacked

jurisdiction or “authority to review his parole suitability and fix his release date . . . ” ). 1

Next, a state court’s arbitrary disregard of state sentencing law and imposition of an

unauthorized sentence may violate the defendant’s due process rights. See Hicks

v. Oklahoma, 447 U.S. 343, 346, (1980); Whalen v. United States, 445 U.S. 684, 689-90 n.

4 (1990). 2 In Ballard v. Estelle, 937 F.2d 453 (9th Cir. 1991), the Ninth Circuit summarized

the law on this point:

State laws may give rise to liberty interests protected by the Fourteenth

Amendment. Board of Pardons v. Allen, 482 U.S. 369, 381, (1987) (statute

requiring defendant's release on parole when eligible and when reasonable

In another case, the Court considered such a claim, but found that it was not

exhausted. Miles v. Williams, 386 F. Supp. 2d 582 (D. Del. 2005) (petitioner claimed that

sought federal habeas relief, contending that parole board lacked jurisdiction over him at

time of revocation). Alternatively, the situation is analogous to a federal court inquiring

whether a military tribunal has jurisdiction. Jackson v. Sanford, 79 F. Supp. 74, 76 (N.D.

Ga. 1947). The writ would issue too if an immigration court lacked jurisdiction over an

individual.

2

Mr. Jenkins’ state-court habeas action tracked this formulation of constitutional

law. (“Plaintiff claim[s] that the arbitrary and capricious action that was perpetrated against

him . . . infringed upon his vested liberty interest in his scheduled parole release date of

February 07, 2014. . . . ”).

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probability that no harm will result creates a liberty interest); Hewitt v.

Helms, 459 U.S. 460, 466, (1983); Hicks v. Oklahoma, 447 U.S. 343, 346,

(1980) (statute that vests sentencing discretion with the trier of fact creates a

liberty interest). Misapplication of these laws that lead to deprivations of

those liberty interests by state institutions may be reviewed in federal habeas

corpus proceedings.

Id. at 456 (citations modified).

In Walker v. Deeds, 50 F.3d 670 (9th Cir. 1995), the Ninth Circuit applied this

reasoning to invalidate a Nevada sentence that did not strictly comply with state law. In

Walker, the Court specifically held that sentencing the defendant as a “habitual criminal”

without making the required finding that habitual offender status was “just and proper”

under Nevada law violated the defendant’s due process rights. 50 F.3d 670 (9th Cir. 1995).

In the most relevant passage, the Court wrote:

In Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), the Supreme Court held

that state laws guaranteeing a defendant procedural rights at sentencing may

create liberty interests protected against arbitrary deprivation by the due

process clause of the Fourteenth Amendment. Therefore, when a state has

provided a specific method for determining whether a certain sentence shall

be imposed, “‘it is not correct to say that the defendant's interest’ in having

that method adhered to ‘is merely a matter of state procedural law.’” Fetterly

v. Paskett, 997 F.2d 1295, 1300 (9th Cir.1993) (citing Hicks v. Oklahoma).

Based on Hicks, this court found that state law requiring that the Washington

Supreme Court “review and make particular findings before affirming [a]

death sentence” created a constitutionally protected liberty interest.

Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir.1992).

50 F.3d at 672 (citations modified). See also Moore v. Parke, 148 F.3d 705 (7th Cir. 1998)

(invalidating habitual offender determination based on state court’s failure to prove

sequencing of prior offenses and convictions as required by Indiana law).

4

As in Walker, and the above-referenced cases, Mr. Jenkins similarly contends that

the Oregon Board of Parole disregarded Oregon law and procedures on the scope of its

jurisdiction and authority.

Mr. Jenkins had a vested liberty interest, protected by the Fourteenth Amendment

Due Process Clause, in his 2014 release date. The action of the Oregon Board of Parole

revoking his parole and, later, in denying his re-release, violated his right to due process.

Mr. Jenkins points out that, during the relevant time period, he was always in prison

and therefore never became a parolee. Consequently, the Board of Parole never had

authority to allow a Morrisey hearing, or the ensuing Future Disposition hearing, to take

place. 3 As such, the Board was without jurisdiction to implement the subsequent adverse

action against him, to wit, denying him rerelease.

This proposition of law is clearly established in Oregon law. In State v. Ludwig, 218

Or. 483, 486-487, 344 P.2d 764, (1959), the court stated “A parole, briefly stated, is a

release from jail, prison or other confinement after actually serving part of the sentence.”

(emphasis added); See also Bailleaux v. Cupp, 16 Or. App. 573, 520 P.2d 483 (1974)

(quoting Ludwig). Compare Boyd v. Bd. of Parole, 541 P.2d 1068, 1069 (Or. App. 1975)

(“We hold the Morrissey and statutory requirements did not apply to petitioner because he

was not in parole status.”).

At the very least, Shelby v. Board of Parole, 244 Or. App. 348, 260 P.3d 682 (2011)

is in tension with Ludwig and Bailleaux. Moreover, although the Shelby court did find that

3

Morrisey v. Brewer, 408 U.S. 471 (1972).

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the petitioner, in that case, remained on parole despite his incarceration on his consecutive

sentence, the Court’s specific conclusion in that case was that the petitioner “did not

continue to earn good time when he was released “on parole . . . on his indeterminate

sentences . . . and began serving his consecutive sentences for his [later guidelines]

conviction.” 244 Or. App. at 354, 682.

The Court of Appeals’ decision in Wyatt v. Board of Parole and Post-Prison

Supervision, 230 Or. App 581, 216 P.3d 926 (2010), also supports Mr. Jenkins’ position.

In Wyatt, the Court concluded that the petitioner could not challenge a supervision

condition that was included in a Board Action Form (“BAF”) because the conditions had

not yet been imposed. Id. at 584-86. The petitioner in Wyatt had served a sentence and been

released onto post-prison supervision when he violated the terms of that supervision. Id. at

584. The Board ordered that he serve a 180-day sanction for the violation. Id. The order

included a statement identical to the statement in BAF 16 in this case. It stated that any

general and special conditions in the order were listed for informational and tracking

purposes, and that actual supervision conditions would be imposed in a subsequent Order

of Supervision. Id. The order also included a special condition prohibiting contact with

certain persons. Id.

On judicial review, Wyatt challenged the special condition that prohibited his

contact with the named persons. Id. The Oregon Court of Appeals concluded that he could

not challenge that specific condition because the order did not actually impose the

condition that he was attempting to challenge on review. The Court wrote:

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Here, the board did not actually impose the conditions that petitioner

challenges in the board's order, nor did it uphold those conditions on

administrative review. Rather, any such conditions will be established in a

separate written order that will be provided to petitioner on his re-release

from prison. ORS 144.102(1).1. The order merely advised petitioner that the

board intended to impose the challenged conditions in a subsequent order of

supervision conditions. Thus, although petitioner was adversely affected by

the order to the extent that he was ordered to serve an incarceration sanction,

the board did not err in the manner asserted by petitioner on judicial review,

and this court therefore cannot provide the relief that he seeks under ORS

183.482(8). Petitioner will have an opportunity to seek judicial review of the

challenged conditions if and when the board imposes them in an order

establishing supervision conditions upon his re-release.

Wyatt, 230 Or. App. At 584-85, 216 P.3d at 928 (Or. App. 2009). Wyatt establishes that

the Board imposes on conditions of release on an offender when that offender is released

from custody, and through an order of supervision that is provided at the time of release.

Conditions that Board establishes prior to release from custody are provided for

“informational and tracking” purposes. See 230 Or. App. at 583, 216 P.3d at 927.

Here, as Mr. Jenkins was never released from prison, the Oregon Board of Parole

never had jurisdiction or authority to conduct the Morrissey hearing or the ensuing Future

Disposition Hearing. As a result, the sanction imposed on the still-incarcerated Mr. Jenkins

for a “parole violation” was unconstitutional. Again, he had never been released from

confinement. Therefore, there was no authority or jurisdiction held by the Board to conduct

a Morrissey hearing and to act adversely to him.

As Mr. Jenkins argued in his brief on judicial review form the Board’s action:

OAR 256-70-045 gives the board authority to schedule a future disposition

hearing for an inmate who has been returned to confinement after parole has

been revoked to “establish the future disposition” of the inmate. OAR 25470-042(2), in turn, provides the board with authority to find aggravating

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factors and establish a further term of confinement. The board’s authority

under those rules is premised upon an inmate being released from custody

and placed on parole, subject to parole conditions. Here, petitioner had not

been released from custody onto parole. He had completed the prison term

for his indeterminate sentence and begun serving his guidelines sentence. As

a result, the board lacked jurisdiction to revoke petitioner’s parole, hold a

future disposition hearing, and establish a new parole release date.

Moreover, the actions violated the petitioner’s right to due process.

He further argued as follows:

The question in this case whether the board had jurisdiction over petitioner

once he began serving his guidelines sentence. Petitioner does not argue that

his indeterminate sentence had been discharged once he began serving the

guidelines sentence, or dispute that the board would have had authority to

impose parole conditions on petitioner once he was released from custody.

This is clear from the case law. . . . Rather, petitioner’s position is that once

he had completed the prison term for his indeterminate sentence and begun

serving his guidelines sentence, the board temporarily relinquished

jurisdiction over him.

At that point, petitioner was in the custody of DOC serving a determinate

guidelines sentence. He was not released from confinement onto parole.

Thus, he was under the jurisdiction of DOC. Had petitioner been released

from custody, the board would have regained jurisdiction over him. At that

point, the board could have imposed parole conditions, because petitioner’s

indeterminate sentence had not been discharged. Thus, because petitioner

had completed the prison term for his indeterminate sentence, the board

lacked jurisdiction over petitioner until he was released from custody and

subject to parole conditions issued by the board.

In light of the factors brought before the Oregon Court of Appeals, its affirmance of

the Board’s action against Mr. Jenkins was an objectively unreasonable interpretation of

the Due Process Clause of the Fourteenth Amendment. Hicks and Whalen show that a

State’s arbitrary disregard of state sentencing law violates due process. In Walker v. Deeds,

discussed supra, the Ninth Circuit found that the State court’s failure to abide by the State’s

8

own sentencing requirements contravened due process as that protection was interpreted

and applied in Hicks v. Oklahoma. See Walker v. Deeds, 50 F.3d at 673 (discussing Hicks).

This Court’s decisions in Kentucky Dept. of Corrections v. Thompson, 390 U.S. 454

(1989) and Matthews v. Eldridge 424, U.S. 219 (1976) similarly stand as controlling

interpretations on the protections guaranteed under the Due Process Clause. It is on each

of these decisions that Mr. Jenkins relies for his argument in support of the writ. Here, the

State court’s affirmance unreasonably applied, and was contrary to, those authoritative

interpretations. Habeas Corpus relief is thus warranted and available under 28 U.S.C.

§ 2254(d).

As Jenkins’ federal claim had merit, the Ninth Circuit’s ruling that it deserved no

encouragement to proceed further conflicts with the statutory standard and this Court’s

amplification of that standard in Slack. This Court should accept this certiorari petition in

order to further clarify the standard for issuance of a certificate of appealibility. The due

process guarantee of the Fourteenth Amendment itself, as applied to state prisoners and

state parole boards, warrants further amplification from this Court. At a minimum, jurists

of reason could debate the constitutional question presented in this case.

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Conclusion

For the foregoing reasons, the Court should issue a writ of certiorari to review the

Ninth Circuit’s ruling.

DATED this March 18, 2020.

/s/ Anthony Bornstein

Anthony Bornstein

Assistant Federal Public Defender

Attorney for Petitioner

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