O'Bremski v. Maass, 89-35582

Decision Date25 September 1990
Docket NumberNo. 89-35582,89-35582
Citation915 F.2d 418
PartiesRussell L. O'BREMSKI, Petitioner-Appellant, v. Manfred MAASS, Superintendent, Oregon State Penitentiary, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Stephen R. Sady, Asst. Federal Public Defender, Portland, Or., for petitioner, appellant.

John A. Reuling, Jr., Asst. Atty. Gen., Salem, Or., for respondent, appellee.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, ALARCON and KOZINSKI, Circuit Judges.

ALARCON, Circuit Judge:

Russell L. Obremski 1 (Obremski), a state prisoner, appeals from the dismissal of his petition filed pursuant to 28 U.S.C. Sec. 2254. Before this court Obremski argues that his petition stated two valid constitutional claims: (1) the Oregon Board of Parole (Board) failed to act as an impartial tribunal in violation of his right to due process; and (2) the Board was estopped from postponing his release date of March 8, 1987.

STATEMENT OF THE CASE

Obremski was convicted of two counts of first-degree murder and sentenced to serve concurrent life sentences in 1969. At the time of his conviction, the Board was operating under a law that gave it complete discretion to set parole release dates. Former Or.Rev.Stat. Secs. 144.175-144.180 (repealed 1977); see Addicks v. State Bd. of Parole, 63 Or.App. 409, 411-12 & n. 1, 663 P.2d 1310, 1311 & n. 1 (1983).

In 1977, the Oregon Legislature adopted a "matrix" system for setting release dates. Or.Rev.Stat. Secs. 144.120, 144.780 (1989). The matrix system required the Board to follow certain administrative rules in establishing firm release dates, which could be altered only under certain specified conditions. Or.Rev.Stat. Sec. 144.785(1) (1989). The matrix range for Obremski's crimes was twenty-four years to life. In September 1978, Obremski was informed that he had the option of obtaining a firm release date under the matrix system. See OAR 255-30-002. Obremski declined to exercise his option at that time.

On June 27, 1979, the parole board voted to grant Obremski a "firm" release date of February 1984. On December 23, 1981, Obremski signed a request to have his case considered under the matrix system. The Board noted: "Inmate signed request for firm date.... No change in 2-84 date."

In 1982, members of the public began questioning the 1984 release date. The Board ordered that Obremski undergo multiple psychological evaluations beginning in Obremski filed a habeas corpus petition in state court in which he claimed that the 1987 release date was valid under the matrix system, and therefore, the postponement of his release deprived him of a liberty interest in violation of his federal and state constitutional rights. The Oregon Court of Appeals denied the petition, holding that "[e]ach order from 1980 up until the 1987 order failed to comply with petitioner's matrix range, ORS 144.120(2), and the Board was entitled to make an order that is in compliance, as the 1987 order is." O'Bremski v. Oregon Bd. of Parole, 91 Or.App. 164, 165, 754 P.2d 32, 33 (1988) (per curiam). The Oregon Supreme Court denied review. 306 Or. 414, 761 P.2d 531 (1988).

1983. Because two of these evaluations were unfavorable, the Board postponed Obremski's release date to March 8, 1987. On January 29, 1987, after it was informed that Obremski's release date was erroneous under the matrix system, the Board again postponed the release date to March 8, 1996.

Obremski then filed a habeas corpus petition in federal court, claiming that the Board violated his due process rights in vacating the March 8, 1987 release date. The district court dismissed the petition without a hearing. Obremski timely appeals.

STANDARD OF REVIEW

The decision to dismiss a petition for habeas corpus is reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). "A habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evidentiary hearing in a state court." Id. " ' "[N]otice" pleading is not sufficient, for the petition is expected to state facts that point to a "real possibility of constitutional error." ' " Blackledge v. Allison, 431 U.S. 63, 75 n. 7, 97 S.Ct. 1621, 1630 n. 7, 52 L.Ed.2d 136 (1977) (quoting Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases, 28 U.S.C. Sec. 2254 foll. (1976) (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.1970))).

DISCUSSION
I. Propriety of District Court's Dismissal

In its response to Obremski's petition, the parole board moved "for an order dismissing this case pursuant to Fed.R.Civ.P. 12(b) on the ground that the Petition for Writ of Habeas Corpus under 28 U.S.C. Sec. 2254 fails to raise any issue of federal law." The district judge stated: "I grant the Board's motion to dismiss."

The Supreme Court has stated that the view "that a Rule 12(b)(6) motion is an appropriate motion in a habeas corpus proceeding" is "erroneous." Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14, 98 S.Ct. 556, 563 n. 14, 54 L.Ed.2d 521 (1978). Nevertheless, rule 4 of the Rules Governing Section 2254 in the United States District Courts "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated." Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir.1983); see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir.1989) (meritorious motions to dismiss are permitted by Rule 4). Because the district court's dismissal was based on its conclusion that the facts alleged in Obremski's petition did not entitle him to habeas relief as a matter of law, we review the district court's order as a summary dismissal under Rule 4.

II. Exhaustion of State Remedies

The State conceded in its motion to dismiss before the district court that Obremski had exhausted his available state court remedies. Examination of the record reveals, however, that Obremski raised only two claims in state court: (1) that his 1987 release date was valid under existing Oregon administrative rules; and (2) that the Board's refusal to honor the release date was in response to public outcry--an improper reason for postponement under Oregon law--and that the Board thus deprived him of a liberty interest without due process of law. Thus, Obremski's claims that the Board failed to act as an impartial As a general rule, a habeas petition should be dismissed if state remedies have not been exhausted as to any of the federal claims. Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989) (citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). When a State fails to object in the district court that a federal constitutional claim has not been exhausted, however, we are not compelled to remand with directions to dismiss the petition when the petitioner elects to strike the unexhausted claim. In Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), the Supreme Court stated:

tribunal and was also estopped from vacating the March 8, 1987 release date were not raised and exhausted in the Oregon courts.

The appellate court is not required to dismiss for nonexhaustion notwithstanding the State's failure to raise it, and the court is not obligated to regard the State's omission as an absolute waiver of the claim. Instead, we think the history of the exhaustion doctrine, as recently reviewed in Rose v. Lundy, 455 U.S. 509 [102 S.Ct. 1198, 71 L.Ed.2d 379] (1982), points in the direction of a middle course....

....

When the State answers a habeas corpus petition, it has a duty to advise the district court whether the prisoner has, in fact, exhausted all available state remedies. As this case demonstrates, however, there are exceptional cases in which the State fails, whether inadvertently or otherwise, to raise an arguably meritorious nonexhaustion defense. The State's omission in such a case makes it appropriate for the court of appeals to take a fresh look at the issue. The court should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim.

If, for example, the case presents an issue on which an unresolved question of fact or of state law might have an important bearing, both comity and judicial efficiency may make it appropriate for the court to insist on complete exhaustion to make sure that it may ultimately review the issue on a fully informed basis. On the other hand, if it is perfectly clear that the applicant does not raise even a colorable federal claim, the interests of the petitioner, the warden, the state attorney general, the state courts, and the federal courts will all be well served even if the State fails to raise the exhaustion defense, the district court denies the habeas petition, and the court of appeals affirms the judgment of the district court forthwith.

Id. at 133, 134-35, 107 S.Ct. at 1674, 1675. Because we conclude that there are no unresolved questions of fact in this case and that Obremski's claims are not colorable under federal law, we affirm the district court's dismissal for failure to state a claim.

III. Obremski's Due Process Claim

We need not decide whether the matrix system 2 confers a liberty interest entitling prisoner to due process protection in the setting of release dates. Instead, we conclude that, assuming arguendo that Oregon prisoners have a protected liberty interest under the statutes creating the matrix system, Obremski has failed to demonstrate that the postponement of his parole release Obremski acknowledges that the typical matrix range for his crimes was twenty-four years to life. He argues, however, that he believed that an...

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