MICHAEL H. SIMON, District Judge.
Petitioner, an inmate at the Oregon State Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition for Writ of Habeas Corpus (#2) is denied.
In 1992, Petitioner pleaded no contest to two counts of Aggravated Murder in Multnomah County.
In 1996, Petitioner unsuccessfully challenged the legality of his Judgment in a federal habeas action. Respondent's Exhibits 111-114. He next filed a successive PCR action in Marion County, but the PCR court dismissed it as successive and untimely. The Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied review. Respondent's Exhibits 120-121. On January 21, 2014, he filed a successive federal habeas corpus action, but voluntarily dismissed it without prejudice. Respondent's Exhibits 122-126.
Thereafter, on April 10, 2014, the Offender Information and Sentence Computation unit within the Oregon Department of Corrections advised the Multnomah County District Attorney's Office that the Judgment in Petitioner's 1992 criminal case failed to impose a term of lifetime post-prison supervision as required by ORS 144.103(2)(a) for individuals convicted of Aggravated Murder. Respondent's Exhibit 127. In response, the Multnomah County Circuit Court filed an Amended Judgment dated November 19, 2014, nunc pro tunc to June 9, 1992, re-imposing the same prison sentence, but adding lifetime post-prison supervision. Petitioner appealed, but the Oregon Court of Appeals affirmed without written opinion and the Oregon Supreme Court denied review. Respondent's Exhibits 134-135.
On March 12, 2018, Petitioner filed the current federal habeas action raising two grounds for relief:
In a prior Order, this Court resolved questions surrounding whether the subject habeas petition was a second or successive one and whether its claims are procedurally defaulted. It determined that the Petition is not second or successive and that Petitioner fairly presented his claims to the Oregon courts. Accordingly, the Court directed respondent to file a brief addressing these claims on the merits. Respondent filed his brief and the Court resolves the Petition on the merits.
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's 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 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. 28 U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fair minded jurists could disagree that the state court's decision conflicts with the Courts precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
When a state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in its application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9
Notably, before 1989, trial courts in Oregon imposed indeterminate sentences of a specified duration on defendants who had been convicted of crimes. Such sentences stated only maximum terms to be served under the jurisdiction of the Department of Corrections and the Board of Parole determined the actual duration of imprisonment. In 1989, however, the legislature adopted a new system:
State ex rel. Engweiler v. Cook, 340 Or. 373, 380-82 (2006).
Aggravated murder under ORS 163.095 (1991) is murder as defined by ORS 163.115 ("simple murder") committed under or accompanied by, any one of a list of enumerated aggravating circumstances. These statutory aggravating circumstances, when proven beyond a reasonable doubt, elevate the crime of murder to the crime of aggravated murder. These aggravating circumstances constitute essential elements of the crime of aggravated murder. In arguing that the sentencing guidelines are at odds with the aggravated murder statute, Petitioner cites OAR 253-08-002(3)(1989) which provides that "[a]ny aspect of the current crime of conviction which serves as a necessary element of a statutory mandatory sentence may not be used as an aggravating factor if that aspect is also used to impose the mandatory sentence." Critically however, in suggesting that the guidelines are irreconcilable with the aggravated murder statute, petitioner conflates: (1) the elements of an aggravated murder charge, all of which must be proven beyond a reasonable doubt, including the statutory aggravating circumstance; and (2) the unrelated sentencing regulation which prohibits reliance on a necessary element of a crime as an aggravating factor under the Sentencing Guidelines to support imposing a departure sentence. Prosecutors prove the former during the guilt-phase portion of a death penalty trial, and the latter during sentencing after a defendant has been criminally convicted, and then, only when asking the Court to impose a departure sentence.
Petitioner's argument fails here because the trial court did not impose a departure sentence in his case. Moreover, relevant Oregon law makes clear that law makers intentionally omitted aggravated murder from the Sentencing Guidelines grid because its punishments are and always have been specifically set by a statute specifically addressing aggravated murder convictions. See State ex rel. Engweiler v. Cook, 340 Or. at 382 ("The crime of aggravated murder also is unranked, but the reason in that case is that the sentencing court does not have discretion to determine the appropriate punishment. Instead, the applicable regulation provides, `The offense of Aggravated Murder is not ranked on the Crime Seriousness Scale because the sentence is set by statute [as death, life in prison without the possibility of release or parole, or life in prison with a 30-year minimum sentence before becoming eligible for parole].' OAR 213-004-0003."); State v. Bergeson, 138 Or.App. 321, 324 (1995)("OAR 253-04-004 provided: `Except for ORS 163.095-163.105 Aggravated Murder, when a person is convicted of any other felony or crime punishable by state imprisonment which is omitted from the Crime Seriousness Scale, the sentencing judge shall determine the appropriate crime category for the current crime of conviction and shall state on the record the reasons for the offense classification.'").
Petitioner's assertions notwithstanding, OAR 253-08-002(3)(1989) applies only to the imposition of departure sentences. See e.g., State v. Hudson, 115 Or.App. 301 (1989)(use of a firearm was not an element of attempted murder and therefore provided a permissible basis to impose an upward departure sentence). As noted above, the trial court here did not impose a departure sentence in Petitioner's case. Indeed, sentencing for aggravated murder is excluded from the Sentencing Guidelines system, and therefore, there is no presumptive guidelines sentence from which a trial court could depart. Engweiler v. Persson, 354 Or. 549, 562 (2013). Regardless, as noted above, the possible sentences under the statute for an Aggravated Murder conviction were death, true life or life. In accordance with his plea agreement, the trial court sentenced Petitioner to two counts of life, the most lenient sentences available for the crimes of conviction.
Based on the foregoing, and having conducted an independent review of the record, the Court concludes that Petitioner cannot demonstrate that the Oregon court's denial of this due process claim was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in State court.
Although Petitioner acknowledges that "[t]he sentencing guidelines do not provide a presumptive range for the crime of aggravated murder," he nevertheless maintains that in accordance with ORS 137.669 the Sentencing Guidelines control sentencing in all crimes committed after November 1, 1989 and that the trial court was required to impose a determinate sentence in his case. Moreover, Petitioner asserts that under the Guidelines offenders serve periods of PPS, not parole, and that the period of PPS begins after the offender finishes his determinate incarceration term. Accordingly, he maintains that the 30-year minimum sentence the trial court imposed on each of his aggravated murder counts constitutes the determinate sentence that he must serve, but that the "life" sentence imposed on each count constitutes his indeterminate sentence, "i.e., the part that Mr. Brandon may serve, but from which [he] must be released to post-prison supervision, if the court does not impose any form of departure sentence." Petitioner argues that under the Guidelines neither the Department of Corrections nor the parole board has the statutory authority to delay his release to PPS once he has completed his determinate incarceration term — in his case, 30 years less any earned time credits.
As a preliminary matter, Respondent contends that Petitioner does not allege that the state failed to provide him with any procedure or sentencing method, but rather alleges that the sentencing court improperly applied the substantive state law governing his sentence. According to Respondent, this does not give rise to a due process claim. See Estelle v. McGuire, 502 U.S. 62, 67 (1991)(habeas corpus relief is not available for errors of state law). In addition, Respondent contends that because Petitioner stipulated to the sentence he received, he cannot demonstrate that his sentence amounts to an arbitrary deprivation of a liberty interest.
Nevertheless, even assuming Petitioner's claim is cognizable in federal habeas, Respondent maintains that it is without merit because it rests on the faulty premise that the Sentencing Guidelines have some bearing on the sentence for aggravated murder. Respondent insists that the statutes governing aggravated murder provide both the applicable sentences and the procedure for determining which of the available sentences to impose. As such, he maintains aggravated murder is an exception to the general rule that sentences for felonies committed on or after November 1, 1989 should be imposed in accordance with the guidelines:
ECF [37], p. 8.
Respondent's arguments are well taken. Aggravated murder convictions are not accounted for in the Sentencing Guidelines and the Court rejects petitioner's suggestion that the trial court denied him due process when it sentenced him in accordance with the aggravated murder statutes. It is settled law in Oregon that aggravated murder sentencing operates outside of the Sentencing Guidelines system. Furthermore, the statutes make clear that in the case of the most lenient sentencing option for an aggravated murder conviction, life with the possibility of parole after a minimum of 30 years (the sentence Petitioner received as part of his plea agreement), the Board of Parole and Post-Prison Supervision is authorized to determine whether and when a petitioner in these circumstances may become eligible for parole. Accordingly, there is no support for concluding that the Guidelines should override the indeterminate sentence imposed in accordance with those statutes.
Based on the foregoing, and having conducted an independent review of the record, the Court concludes that Petitioner cannot demonstrate that the Oregon court's denial of this due process claim was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in State court.
For the foregoing reasons, 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 constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Accordingly, this case is not appropriate for appellate review.
IT IS SO ORDERED.
