Hess v. Bd. of Parole and Post-Prison Supervision

• Citation: 514 F.3d 909
• Decision Date: 29 January 2008
• Docket Number: No. 06-35963.,06-35963.
• Parties: Willie F. HESS, Petitioner-Appellant, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

514 F.3d 909

Willie F. HESS, Petitioner-Appellant, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent-Appellee.

No. 06-35963.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2007.

Filed January 29, 2008.

Anthony D. Bornstein, Federal Public Defender's Office, Portland, OR, for the petitioner-appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, Carolyn Alexander (argued), Assistant Attorney General, Janet A. Metcalf, Assistant Attorney General, Office of the Oregon Attorney General, Salem, OR, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding; D.C. No. CV-05-00718-REJ.

Before: RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges, and JUDITH M. BARZILAY, Judge.^*

FISHER, Circuit Judge:

Willie Fern Hess appeals from the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. He asserts that Oregon Revised Statute § 144.125(3) (1991),¹ which allows the Parole Board to postpone his parole release date if it finds he has "a psychiatric or psychological diagnosis of a present severe emotional disturbance such as to constitute a danger to the health or safety of the community," is unconstitutionally vague. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

BACKGROUND

Hess is an inmate at the Snake River Correctional Institution in Oregon, who has been incarcerated since 1984 as a result of multiple convictions on rape, sodomy and child sexual abuse charges. Hess first became eligible for parole in May 1994. Under Oregon law, the Oregon Board of Parole and Post-Prison Supervision ("Board") must release a prisoner on his parole release date unless it finds that his parole should be postponed, for one of several statutory reasons. See Or.Rev. Stat. § 144.245. The Board may postpone a prisoner's release date if the prisoner has a "psychiatric or psychological diagnosis of a present severe emotional disturbance such as to constitute a danger to the health or safety of the community." § 144.125(3). Hess challenges the Board's September 2003 decision to postpone his parole release date by two years under Oregon Revised Statute § 144.125(3).

In anticipation of his 2003 parole hearing, Hess was evaluated by a licensed psychologist, Dr. Frank Colistro. Dr. Colistro's report indicated that Hess was "alert, fully oriented, pleasant and cooperative, displaying no behavioral signs for the presence of significant mental or emotional disturbance." However, Dr. Colistro also stated that based on the nature of Hess' offenses, his pattern of offending and his refusal to participate in prison programming, "[Hess] continues to pose a high risk for recidivating." Dr. Colistro diagnosed Hess under the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") with. Pedophilia as well as Personality Disorder with Narcissistic and Antisocial Features. He noted that these diagnoses "are severe ones predisposing him to the commission of crimes to a degree rendering him an ongoing threat to the health and safety of the community" and recommended that "the only viable protective factor relative to ensuring community safety is containment."

The Board then conducted a hearing, where it took testimony from Hess and the mother of one of Hess' victims. Afterward, the Board unanimously voted to postpone Hess' parole release date by an additional two years. The Board acknowledged that it had received Dr. Colistro's report and stated that "based on the doctor's report and diagnosis, coupled with all the information that the Board is considering, the Board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community." Hess appealed the Board's decision to the Administrative Review Board, which affirmed the Board's decision, noting that "Dr. Colistro concluded that your Axis I [Pedophilia] and Axis II [Personality Disorder] conditions are severe ones predisposing you to the commission of crimes rendering you an ongoing threat to the health and safety of the community."

Hess sought judicial review of the Board's decision in the Oregon Court of Appeals by filing a motion for leave to proceed with judicial review under Oregon Revised Statute § 144.335 (2002). The court of appeals dismissed Hess' motion for failing to present a substantial question of law. Under Oregon law, such a dismissal constitutes an adverse decision on the merits of Hess' petition. See Or.Rev.Stat. § 144.335(6) (2002). Hess appealed to the Oregon Supreme Court, which also denied review without comment. Hess then filed this federal petition for habeas corpus under 28 U.S.C. § 2254. Because Hess is challenging an administrative decision to postpone his parole and not his underlying state court conviction, he did not need to obtain a certificate of appealability under 28 U.S.C. § 2253(c)(1)(A). See Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005) (per curiam).

A district court's denial of a habeas corpus petition is reviewed de novo. See Leavitt v. Arave, 371 F.3d 663, 668 (9th Cir.2004) (per curiam). Because Hess' petition was filed after April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a federal court is permitted to grant habeas relief only if the state court adjudication "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 prevail, the 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, 384 F.3d 628, 637-38 (9th Cir.2004) (quoting Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)). Where, as here, the state court reaches the merits without providing a reasoned decision for us to review, however, "we independently review the record to determine whether the state court clearly erred in its application of Supreme Court law." Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir.2007) (internal quotation marks omitted).

ANALYSIS

As a basic principle of due process under the Fifth Amendment, a state law must establish adequate guidelines to govern the exercise of discretion by state officials so that the law neither "authorizes [n]or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), The Supreme Court has therefore long recognized that the Due Process Clause contains a substantive component that "bars certain arbitrary, wrongful government actions `regardless of the fairness of the procedures used to implement them.'" Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Accordingly, although Hess does not assert any procedural deficiencies in his parole hearing, he argues that the Board's decision runs afoul of the Due Process Clause because the Oregon statute under which his parole was postponed is impermissibly vague. We disagree, and so we affirm.²

"[A] party, challenging the facial validity of [a law] on vagueness grounds outside the domain of the First Amendment must demonstrate that the enactment is impermissibly vague in all of its applications." Hotel `& Motel Ass'n of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th Cir.2003) (internal quotation marks omitted). It therefore follows that "if the statute is constitutional as applied to the individual asserting the challenge, the statute is facially valid." United States v. Dang, 488 F.3d 1135, 1141 (9th Cir.2007). Accordingly, mere "speculation about possible vagueness in hypothetical situations not before the [c]ourt" will not support a facial attack on a statute that is "valid `in the vast majority of its intended applications.'" Hill, 530 U.S. at 733, 120 S.Ct. 2480 (quoting United States v. Raines, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)); see also Laurence H. Tribe, American Constitutional Law § 12-32 (2d ed. 1988) ("Where the vice is vagueness the statute in question is vague either in all possible applications or at least as applied to the litigant's conduct, and not simply as applied to some others."). To succeed in voiding section 144.125(3) for vagueness, Hess must therefore show that the statute is vague in all its applications or at the least as applied to himself.

The statute Hess challenges provides the Board with authority to postpone a prisoner's release date, thereby lengthening the time he spends in prison. It does not, however, impose a criminal penalty for past behavior. Rather, it guides the exercise of an administrative decision, albeit one in which Hess has a protected liberty interest. See Or.Rev.Stat. § 144.245 (1999) (stating that the prisoner "shall be released" on his parole date); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003) (noting that prisoners have a protected liberty interest in a parole decision when the statute states that the prisoner "shall" be released "unless" certain conditions are met). The Due Process Clause does not require the same precision in the drafting of parole release statutes as is required in the drafting of penal laws. See Glauner v. Miller, 184 F.3d 1053, 1055 (9th Cir.1999); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (noting the "degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment"). Accordingly, we have "greater tolerance of enactments with civil rather than criminal penalties because...