Brown v. Palmateer

• Decision Date: 17 August 2004
• Docket Number: No. 03-35618.,03-35618.
• Citation: 379 F.3d 1089
• Parties: Gilbert C. BROWN, Petitioner-Appellant, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

379 F.3d 1089

Gilbert C. BROWN, Petitioner-Appellant, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent-Appellee.

No. 03-35618.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2004.

Filed August 17, 2004.

COPYRIGHT MATERIAL OMITTED

Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, for the petitioner-appellant.

Carolyn Alexander, Assistant Attorney General, Salem, Oregon, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding.

Before FLETCHER, and TALLMAN, Circuit Judges.

Opinion by Judge GOODWIN; Dissent by Judge TALLMAN.

GOODWIN, Circuit Judge:

Petitioner Gilbert C. Brown alleges that his constitutional rights were violated when a statute, enacted after the commission of his crimes, was applied by the Oregon State Board of Parole and Post-Prison Supervision ("Board") to postpone his parole release date. He contends that this violation of the Ex Post Facto Clause constitutes a constitutional injury that compels reversal of the district court's denial of his petition for habeas corpus. We agree.

BACKGROUND

I. Oregon's Statutory Scheme for Postponing Parole Release

Brown challenges the application of an Oregon statute, passed after he committed his crimes, which changed the method by which the Board decided whether to postpone a prisoner's parole date. Before December 1993, Oregon Revised Statutes § 144.125 provided:

If 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 with respect to the prisoner, the Board may order the postponement of the scheduled parole release until a specified future date.

Or.Rev.Stat. § 144.125(3) (1991).

In 1993, the Oregon legislature amended § 144.125(3) to read:

If the Board finds the prisoner has a mental or emotional disturbance, deficiency, condition or disorder predisposing the prisoner to the commission of a crime to a degree rendering the prisoner a danger to the health or safety of the community, the Board may order the postponement of the scheduled parole release until a specified date.

Or.Rev.Stat. § 144.125(3)(a) (1993).

II. Factual Background

Petitioner Brown was convicted in 1982 of four counts of sodomy and one count of rape for assaulting his daughter. Brown received indeterminate sentences of sixty years for these crimes.

In a July 1995 psychological evaluation, Dr. Robert Davis found that Brown "does exhibit some signs of emotional disturbance, particularly of a passive-dependent nature," but did not diagnose Brown with any disease or disorder. Dr. Davis concluded his evaluation by stating: "I do not find that he represents a severe or extreme emotional disturbance or that he is a danger to the health and safety of others in the community at the present time." In a September 1995 action, the Board postponed Brown's parole release date for twenty-four months, finding that he was a "danger to the health or safety of the community." In light of an Oregon appellate court opinion interpreting the pre-1993 version of § 144.125, the Board revised its findings in a February 1997 administrative review to conclude that Brown suffered from a "present severe emotional disturbance."

Brown filed a state habeas petition in 1996, contending that the Board's 1995 action violated the Ex Post Facto Clause by applying the post-1993 version of § 144.125(3). An Oregon circuit court dismissed Brown's habeas claim for the reasons given in the state's Motion to Dismiss as well as those in Adams v. Thompson, Marion County Circuit Ct. Case No. 96C11605, and his appeals were dismissed as moot. Brown filed a federal habeas petition in April 1999, alleging constitutional violations under the Ex Post Facto Clause and the Due Process Clause of the Fourteenth Amendment. While his petition was pending in the district court, the Oregon Supreme Court decided a case that made the mootness determination void, and the district court sent the case back to the state courts for further review. The Oregon appellate and Supreme Court again denied Brown's state habeas petition. The district court reactivated Brown's federal habeas case in October 2002 and also denied his petition. Brown appeals that denial, alleging only an Ex Post Facto violation.

STANDARDS OF REVIEW

A district court's denial of a petition for habeas corpus is reviewed de novo. Himes v. Thompson, 336 F.3d 848, 852 (9th Cir.2003). Because Brown filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), its provisions apply to his case. Fuller v. Roe, 182 F.3d 699, 702 (9th Cir.1999) (per curiam).

Under AEDPA, a habeas petitioner may be granted relief if the state court's decision "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). To show that the state court unreasonably applied federal law, a petitioner must demonstrate "that the state court's application of Supreme Court precedent to the facts of his case was not only incorrect but `objectively unreasonable.'" Davis v. Woodford, 333 F.3d 982, 990 (9th Cir.2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)); see also Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., concurring).

The last reasoned state court decision in Brown's case was the Oregon Court of Appeals' decision on a petition for reconsideration, in which it adhered to its original dismissal of Brown's state habeas petition. Brown v. Thompson, 177 Or.App. 530, 34 P.3d 735 (2001); see Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004) ("[T]he federal court should review the `last reasoned opinion' by a state court....") (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir.2002)). In rejecting Brown's Ex Post Facto arguments, the Brown court stated simply that "the record d[oes] not support petitioner's contention." 177 Or.App. at 533, 34 P.3d 735. The opinion to which the court adhered was an affirmance without opinion. Brown v. Thompson, 176 Or.App. 169, 31 P.3d 453 (2001). Because the Oregon courts have provided no ratio decidendi to review, or to which we can give deference, we employ the "objectively reasonable" test. In this situation, federal habeas courts accord the state court decisions less deference than in standard habeas cases. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000) (citing Delgado v. Lewis, 181 F.3d 1087, 1092-93 (9th Cir.1999)).

ANALYSIS

I. Controlling Supreme Court Law on Ex Post Facto Violations

The Constitution's aversion to retroactive legislation finds expression in several constitutional provisions. See Lynce v. Mathis, 519 U.S. 433, 439 n. 12, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). Separate clauses prohibit the passage of Ex Post Facto laws by Congress, U.S. Const. art. I, § 9, cl. 3, and by the states, id. art. I, § 10, cl. 1. The Ex Post Facto clauses forbid the passage and application of laws that" `retroactively alter the definition of crimes or increase the punishment for criminal acts.'" Calif. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)).

The Supreme Court has established a two-part test for assessing Ex Post Facto claims. A law violates the Ex Post Facto Clause if it is 1) retroactive — it "appl[ies] to events occurring before its enactment," Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); and 2) detrimental — it "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." Morales, 514 U.S. at 509, 115 S.Ct. 1597; Himes, 336 F.3d at 854. "The inquiry looks to the challenged provision, and not to any special circumstances that may mitigate its effect on the particular individual." Weaver, 450 U.S. at 33, 101 S.Ct. 960; Nulph v. Faatz, 27 F.3d 451, 455-56 (9th Cir.1994). The Court has also specified that the statutory procedures should be compared "in toto to determine if the new may be fairly characterized as more onerous." Dobbert v. Fla., 432 U.S. 282, 294, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Not every law that "work[s] to the disadvantage of a defendant" violates the Ex Post Facto Clause. Dobbert, 432 U.S. at 293, 97 S.Ct. 2290. Changes that are merely procedural will withstand scrutiny, as will statutes that leave unaffected" `[t]he crime for which the [ ] defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt....'" Id. at 294, 97 S.Ct. 2290 (quoting Hopt v. Utah, 110 U.S. 574, 589, 4 S.Ct. 202, 28 L.Ed. 262 (1884)). A law does not violate the clause if it "creates only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes." Morales, 514 U.S. at 513, 115 S.Ct. 1597. A change in law that changes the way a parole board exercises its discretion does not necessarily offend the Ex Post Facto Clause. Garner, 529 U.S. at 253, 120 S.Ct. 1362. The Court has been careful to explain that there is no single formula for identifying Ex Post Facto violations. Id. at 252, 120 S.Ct. 1362; Morales, 514 U.S. at 509, 115 S.Ct. 1597. The inquiry "must be a matter of degree." Morales, 514 U.S. at 509, 115 S.Ct. 1597 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925)) (emphasis in original).

In engaging in Ex Post Facto analysis, a federal court "`accepts the meaning ascribed to [state statutes] by the highest court of the state.'" Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir.2002) (quoting ...