Gordon v. Premo

DENNIS LEROY GORDON, Petitioner, v. JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.

Case No. 6:13-cv-01130-MA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

April 28, 2015

OPINION AND ORDER

ANTHONY D. BORNSTEIN

Federal Public Defender's Office

101 SW Main Street, Suite 1700

Portland, OR 97204

Attorney for Petitioner

ELLEN F. ROSENBLUM

Attorney General

KRISTEN E. BOYD

Assistant Attorney General

Department of Justice

1162 Court Street N.E.

Salem, OR 97301-4096

Attorneys for Respondent

MARSH, Judge Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Petitioner challenges the constitutionality of the Oregon Board of Parole and Post-Prison Supervision's deferral of his parole release date. For the reasons set forth below, his habeas petition is denied.

BACKGROUND

On September 4, 1975, petitioner raped a woman at gunpoint in her Roseburg home. After the attack, he threatened the victim that he or his friends would return to harm her if she told anyone. Gordon v. Bd. of Parole and Post-Prison Super., 246 Or. App. 600, 602, 267 P.3d 188 (2011). Eighteen days later, after the victim testified before a grand jury, petitioner chartered a plane from Hood River and returned to the woman's home. Petitioner drove the woman and her two youngest children to a secluded location, where he stabbed the woman repeatedly and placed her body on the floorboard of the car at the feet of her children. Gordon v. Bd. of Parole and Post-Prison Superv., 267 Or. App. 126, 128, 340 P.3d 150 (2014). Later, while the victim may still have -been alive, petitioner beheaded her, and buried her body and head at separate locations. Id.; Gordon v. Bd. of Parole and Post-Prison Superv., 343 Or. 618, 620, 175 P.3d 461 (2007); Gordon v. Bd. of Parole and Post-Prison Superv., 266 Or. App. 405, 408-09, 338 P. 3d 185 (2014); Gordon, 246 Or. App. at 602-03. The victim's children were left inthe family car and found by police several hours later. Petitioner returned to Hood River in the same chartered plane he arrived in. Gordon, 246 Or. App. at 603.

In 1976, petitioner pled guilty to Murder and Rape in the First Degree. He received an indeterminate sentence not to exceed life imprisonment for the murder, and a consecutive indeterminate 20-year sentence for rape. Resp. Exh. 101.

I. Relevant Parole Rules

When petitioner committed his crimes, Oregon's sentencing scheme was known as the discretionary system. Under that system, a prisoner serves an indeterminate sentence, and the board periodically considers whether the prisoner is suitable for release on parole. Gordon, 343 Or. at 620.

In 1977, the state legislature replaced the discretionary system with a matrix system. Id. at 621. Under the matrix system, most prisoners receive a firm parole release date, which may be postponed for statutory reasons only.¹ See Id. at 621-22. Unless the parole release date is postponed, the prisoner must be released on his parole release date. Id. at 622; Hamel v. Johnson, 330 Or. 180, 187, 998 P. 2d 661 (2000). Offenders who committed theircrimes before the adoption of the matrix system are permitted to opt into the matrix system, and the prisoner's eligibility for parole is then determined using the rules in effect at the time of his election. Gordon, 343 Or. at 622-23.

At all relevant times, ORS 144.125(3) provided that "[i]f a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made . . ., the board may order the postponement of the scheduled release date." 1981 Oregon Laws, c. 426, § 2; 1987 Oregon Laws, c. 320 § 53; see also Gordon, 343 Or. at 627 n.7. In Weidner v. Armenakis, the Oregon Court of Appeals held that under ORS 144.125(3), the board may consider all relevant information in the record when considering whether a prisoner suffers from a severe emotional disturbance. 154 Or. App. 12, 17-18, 959 P.2d 623 (1998), withdrawn by order July 13, 1998, reasoning reaff'd. and readopted in Merrill v. Johnson, 155 Or. App. 295, 964 P.2d 284 (1998); Gordon, 343 Or. at 627.

However, in Peek v. Thompson, the Court of Appeals held that the board's 1988 adoption of OAR 255-60-006(8) requires a formal finding in the psychiatric or psychological evaluation itself as a prerequisite to the board's authority to postpone a prisoner's parole release date. 160 Or. App. 260, 264-66, 980 P.2d 178(1999); Gordon, 343 Or. at 628-29.² Hence, if the board applies the 1988 version of OAR 255-60-006, the psychiatric or psychological report itself must support a determination that petitioner suffers from a severe emotional disturbance. However, if the board applies the rules in effect in 1984, it may rely on all pertinent evidence in the record. See e.g. Gordon, 267 Or. App. at 132-33; Gordon, 266 Or. App. at 414.

II. Petitioner's Parole Board History

• 1984 (First Matrix Election)

On August 1, 1984, petitioner signed an application to receive a firm parole release date under the matrix system, rather than remain under the discretionary system. Resp. Exh. 103 at 76. On that same date, the board held a Personal Review Hearing and, on August 10, 1984, issued a Board Action Form ("BAF") calculating petitioner's matrix range to be 198 to 268 months, and setting a parole release date of March 15, 2000. Id.; Gordon, 343 Or. at 623.

Petitioner filed an appeal. In the process of preparing a transcript for appeal, it was discovered that the August hearing had not been recorded. Resp. Exh. 103 at 77. As a result, theboard "voided" its August 10, 1984 BAF, and referred the matter to an "analyst for recomputation of [petitioner's] History/Risk score" (a matrix calculation). Id. at 205; Gordon, 343 Or. at 623.

• 1985 (Discretionary System Election)

On May 15, 1985, petitioner appeared at a parole hearing and requested that he be considered for parole under the discretionary system in effect at the time of his crimes. Resp. Exh. 103 at 81 & 283-84. During a discussion with petitioner, one board member agreed with petitioner's assertion that his 1984 matrix election was invalid because the board action had been voided. Id. at 284; Gordon, 343 Or. at 624. Consistent with this understanding, the board's BAF reflects petitioner's election as remaining under the discretionary system. Resp. Exh. 103 at 81 & 209-13. The board continued to consider petitioner under the discretionary system through 1987. Id. at 210-19; Gordon, 343 Or. at 624.

• 1988 (Second Matrix Election)

On August 27, 1988, petitioner signed a second application requesting that he be placed under the matrix system in order to receive a firm parole release date. Resp. Exh. 103 at 221. Pursuant to that request, the board established a 212-284 month matrix range, and a parole release date of March 15, 2000 (later advanced by 7 months to August 15, 1999). Id. at 224-26 & 229-30 (BAF #2 & #4); Gordon, 343 Or. at 624-25. The board held additional parole hearings in 1991 and 1994, resulting in no changeto petitioner's August 15, 1999, parole release date. Resp. Exh. 103 at 234-38 (BAF #6 & #7).

• Deferral of Parole Release Date

On February 2, 1999, the board deferred petitioner's parole release date by 24 months on the basis that he suffers from a present severe emotional disturbance such as to constitute a danger to the health and safety of the community. Id. at 240-52 (BAF #8 & Administrative Review Responses (ARR) #2 & #3). Petitioner's parole release date was deferred to August 15, 2001. Id. at 240.

In ARR #3, the board explained that its decision to defer petitioner's parole release date was premised upon petitioner's election to opt into the matrix system on August 27, 1988, rendering the Peek decision applicable to its decision (requiring a formal finding in a psychiatric or psychological evaluation in order to extend petitioner's parole release date). Id. at 251. Relying solely on the psychological evaluation of Dr. Ronald Page, the board concluded that petitioner suffers from a severe emotional disturbance. Id. at 251-52.

On May 2, 2001, the board deferred petitioner's parole release date an additional 24 months. Gordon, 343 Or. at 630; Gordon, 267 Or. App. at 134. The board again relied upon petitioner's 1988 election into the matrix system, applied the Peek decision, and concluded that Dr. Rubin's psychological report contained adiagnosis of a severe emotional disturbance. Gordon, 343 Or. at 630.

On administrative review, the board affirmed the deferral of petitioner's parole release date. However, the board changed its rational, concluding that petitioner initially opted into the matrix system in 1984, rendering the Peek decision inapplicable (thereby allowing the board to consider all relevant information in the record). Id.; Resp. Exh. 103 at 258-59. Alternatively, the board concluded that even under Peek, there was some evidence to support the board's decision. Resp. Exh. 103 at 259; Gordon, 343 Or. at 628.

• Board Explains Reliance on 1984 Matrix Election

On June 2, 2003, the board reopened for reconsideration ARR #3 (concerning the first 24-month deferral of petitioner's parole release date). Resp. Exh. 103 at 285. The board held that it had erroneously relied on petitioner's second matrix election in 1988, rather than his initial election in 1984. Accordingly, the ARR was amended to reflect that petitioner made his first matrix election on August 10, 1984, and that the board was relying upon the rules in effect in 1984. Resp. Exh. 103 at 285-86 (ARR #5). The Oregon Supreme Court reversed, and remanded to require the board to provide an explanation for its departure from prior practice of relying on petitioner's 1988 election. Gordon, 343 Or. at 635-38.

On remand, the board explained in BAF #14 that it relied on petitioner's 1984 matrix election, rather than the later 1988 election, in order to avoid the limitations Peek placed on its discretion....