Payton v. Thompson
| Decision Date | 30 September 1998 |
| Docket Number | C-11959 |
| Citation | 968 P.2d 388,156 Or.App. 217 |
| Parties | Raymond Eugene PAYTON, Appellant, v. S. Frank THOMPSON, Superintendent, Oregon State Penitentiary, Respondent. 96; CA A96059. . * |
| Court | Oregon Court of Appeals |
Jay Edwards, Salem, argued the cause and filed the brief for appellant.
Christine Chute, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.
Plaintiff, an inmate in an Oregon prison, appeals from a judgment that dismissed his petition for a writ of habeas corpus under ORS 34.310 to ORS 34.730. We affirm.
Plaintiff filed his petition for a writ of habeas corpus on June 7, 1996, seeking release on parole. He argues that he has been illegally incarcerated since November 5, 1994. He challenges a 1994 order of the parole board that extended his release on parole by two years. After he filed his petition, he moved for summary judgment pursuant to ORCP 47. Defendant responded to the motion for summary judgment and also filed a motion to dismiss plaintiff's petition pursuant to ORS 34.680(1). 1 The trial court denied plaintiff's motion for summary judgment and granted defendant's motion to dismiss, resulting in this appeal.
For purposes of the motion to dismiss, plaintiff alleges and defendant does not contest the following facts. Defendant's custody of plaintiff is pursuant to the sentence of the Klamath County Circuit Court of May 8, 1986, sentencing him to the custody of the Oregon Corrections Division (DOC) for life with a ten-year minimum sentence, as a result of a conviction for murder. Plaintiff was scheduled to be released on parole on November 5, 1994, but before that date, the parole board extended his parole release date by two years. In March 1996, plaintiff's psychological status was re-evaluated, and the evaluator determined that he suffers from a "Mixed Personality Disorder with antisocial features and much over controlled aggression and hostility" and that he is "a danger." One day before plaintiff filed this petition in the circuit court, the parole board, relying on the March evaluation coupled with the other information that it had, concluded that plaintiff had "a severe emotional disturbance that constitute[d] a danger to the health or the safety of the community." Consequently, the parole board postponed plaintiff's release on parole until October 5, 1998, under the criteria for release on parole that were in existence at the time that plaintiff committed his crime.
Plaintiff asserts that the parole board's refusal to release him on parole in November 1994 violated the ex post facto clauses of the Oregon and federal constitutions because the parole board at that time relied on the legal criteria in ORS 144.125(3)(a) as amended in 1993 to extend his parole date. He argues that it should have applied the criteria for release on parole that were in effect at the time that he committed his crime. See Meadows v. Schiedler, 143 Or.App. 213, 924 P.2d 314 (1996) (). According to plaintiff, the parole board was required to release him on parole on November 5, 1994, after it received a psychological report that stated that he would be a reasonable risk on parole. Therefore, he concludes that he is now entitled to be released on parole. Defendant counters that, even if plaintiff is correct about the unconstitutionality of the parole board's 1994 order, the parole board's 1996 order, which was decided under the appropriate criteria, superseded the 1994 order before plaintiff filed his petition.
We begin our analysis of the parties' arguments by reviewing the general principles of habeas corpus under the circumstances alleged by plaintiff. A habeas corpus writ commands a custodian to bring a petitioner before the court to inquire into the legality of imprisonment when the petitioner alleges that he is unlawfully imprisoned or when he "alleges other deprivations of [his] legal rights of a kind which, if true, would require immediate judicial scrutiny" and where there is no other available, timely remedy. Penrod/Brown v. Cupp, 283 Or. 21, 28, 581 P.2d 934 (1978). In Meadows, we said that if the plaintiff proves on remand to the circuit court that the order postponing parole was made under the 1993 version of ORS 144.125(3), the remedy would be to direct the parole board to order plaintiff's release unless it determined that, under the version of the statute in effect at the time that the plaintiff committed his crime, the plaintiff's parole should be postponed. 143 Or.App. at 221, 924 P.2d 314.
In this case, plaintiff alleges that the parole board was required to release him on parole from defendant's custody in 1994 and that he is entitled to immediate release. In that context, the remedy that he seeks contemplates inquiry into the legality of imprisonment or restraint at the time of the filing of the petition under ORS 34.700(1). That statute provides:
"If it appears that the party detained is imprisoned or restrained illegally, judgment shall be given that the party be discharged forthwith; otherwise, judgment shall be given that the proceeding be dismissed and the party remanded."
It necessarily follows that the proper inquiry in this case is whether plaintiff is entitled to release at the time that he filed his petition. Relief is not available if plaintiff's incarceration was lawful at the time that the remedy of habeas corpus was sought, even if the imprisonment was unlawful for an unrelated reason at some prior time. 2 Here, plaintiff was serving a life sentence when he filed his petition for a writ of habeas corpus on June 7, 1996. By that time, the 1994 release date was a legal nullity. Before the date for release in 1994 occurred, the order for release had been superseded. Plaintiff's custodial status on June 7, 1996, was pursuant to his life sentence, which had not been completed. The only order regarding release on parole in effect at that time was a 1996 order that provided for release in October 1998. Plaintiff's petition does not allege that the 1996 order constituted an ex post facto application. On these allegations and facts, the remedy of habeas corpus is not available to plaintiff because he has not demonstrated that he was entitled to release from custody on June 7, 1996. Consequently, the trial court did not err in dismissing his petition. 3
Affirmed.
As in Jones v. Thompson, 156 Or.App. 226, 968 P.2d 380 (decided this date), the majority fails to understand or apply the collateral consequences aspect of the mootness doctrine. As a result, it incorrectly affirms the trial court's dismissal of plaintiff's habeas corpus petition. Plaintiff's current incarceration is a collateral consequence of the 1994 order of the Board of Parole and Post-Prison Supervision, the order whose validity he attacks in his petition. Whether he filed his petition while the 1994 order was in effect or at some later date, that order remains the foundation of his current incarceration, and his attack on it is not moot. I dissent from the majority's contrary decision.
Plaintiff was originally scheduled to be released on parole on November 5, 1994. 1 Before his release date, the Board, purporting to act under the authority of ORS 144.125(3)(a), as amended in 1993, extended his parole date by two years. In this petition for habeas corpus, plaintiff argued that the Board's reliance on the amended statute in entering the 1994 order violated the ex post facto clauses of the Oregon and federal constitutions. He also alleged that, at the time of the order, he had received a favorable psychological report and that he was therefore entitled to an immediate release on parole. See ORS 144.125(3) (1991) (). On June 6, 1996, the Board, relying in part on a March 1996 report from a different psychologist, extended plaintiff's release date an additional two years, until October 1998. Plaintiff filed this petition for habeas corpus on June 7, 1996. 2 In his petition for habeas corpus, plaintiff asserted that he was unlawfully imprisoned and restrained of his liberty. He specifically alleged that Plaintiff, thus, challenges his incarceration for the entire period after November 5, 1994; the legal basis for his challenge is the alleged invalidity of the 1994 order.
Under the collateral consequences rule that I described in my dissent in Jones, plaintiff's challenge is not moot if his present incarceration is tied to the 1994 order. Plaintiff alleges, and the state does not presently deny, that the Board had to release him in 1994 if that order was invalid. Whether petitioner's allegations in this respect are correct is something that the trial court should be allowed to determine on remand. If they are correct, all further incarceration is a collateral consequence of the 1994 order, and plaintiff has satisfied the requirement that he show that his incarceration was illegal at the time that he filed the petition. The state has not shown that the petition is moot.
That conclusion is consistent with our previous cases. In Smith v. Board of Parole, 143 Or.App. 408, 922 P.2d 1276, rev. den. 324 Or. 487, ...
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Jones v. Thompson
...imprisonment at the time that the petition is filed. Penrod/Brown v. Cupp, 283 Or. 21, 581 P.2d 934 (1978); see also Payton v. Thompson, 156 Or.App. 217, --- P.2d ---- (decided this date) (holding that the remedy of habeas corpus is not available when there is no entitlement to release on t......
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Hamel v. Johnson
...I expressed in my dissents in Jones, 156 Or.App. at 233, 968 P.2d 380 (Warren J., dissenting), and in Payton v. Thompson, 156 Or.App. 217, 222, 968 P.2d 388 (1998) (Warren, J., dissenting), are correct, a view that the opinion in this case simply ARMSTRONG, J., joins in this concurrence. 1 ......
- Payton v. Thompson
- Payton v. Thompson, S45949.