Opinion
Civil No. 02-1617-BR.
May 24, 2004
BRIAN E. LESSLEY, Assistant Federal Public Defender, Eugene, OR, Attorney for Petitioner.
HARDY MYERS, Attorney General, LESTER R. HUNTSINGER, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
Petitioner, an inmate at the Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Currently before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus (#7). For the reasons that follow, the Amended Petition is DENIED, and this action is DISMISSED.
BACKGROUND
On December 3, 1987, Petitioner was convicted in Marion County Circuit Court on two counts each of Sodomy in the First Degree and Sodomy in the Second Degree. The trial judge sentenced Petitioner to 38 years in prison.Petitioner, who is hearing impaired, does not challenge the legality of his conviction or sentence. Instead, he attacks a June 10, 1999, decision by the Oregon Board of Parole and Post-Prison Supervision (the "Board") deferring Petitioner's release date for 24 months.
In April 1999, the Board referred Petitioner to David R. Starr, Ph.D., for a psychological examination. Dr. Starr evaluated Petitioner without the benefit of a sign-language interpreter. In his ensuing report, Dr. Starr recognized Petitioner suffered from hearing problems, and noted that many questions had to be repeated to Petitioner until he could understand Dr. Starr diagnosed Petitioner as having a Personality Disorder NOS with borderline and antisocial features, and concluded:
[Petitioner] had a difficult upbringing. He has a significant hearing problem. Additionally, he had extreme behavior problems as a youth and spent most of his youth in treatment programs, reform schools, and group homes. He had problems with running away. He has a lengthy history of sexual assault going back to his teenage years and he has exhibited much criminal behavior in between. He is not remorseful for his crime in the least and he has absolutely no empathy for his victims. He tends to blame them.
In the prison setting, [Petitioner] has not been able to manage his behavior appropriately. He has had an unusual number of disciplinary referrals for a wide variety of behavioral difficulty. He does not learn from experience and he doesn't particularly care to learn from experience. He is agitated and impulsive. Psychological testing is suggestive of an extremely disturbed person with strongly ingrained characterological underpinnings of maladaptive behavior. His scores on the Hare Psychopathy Checklist-Revised predict violence.
It is this examiner's opinion that [Petitioner] would represent a risk to the community if he were to be paroled.
Resp. Exh. 102, p. 6.
On June 10, 1999, the Board issued its decision denying Petitioner early release. The Board Action Form stated:
BASED ON [DR. STARR'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.
Resp. Exh. 103, p. 2.
Petitioner filed an administrative appeal from the Board's decision, arguing that the Board's action violated the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and Petitioner's due process rights because Dr. Starr evaluated Petitioner without the benefit of a sign language interpreter. On January 3, 2000, the Board issued an Administrative Review Response:
The Board has received and reviewed your Administrative Review Request dated 6/22/1999 requesting review of BAF #8 wherein the Board, on 6/10/1999 conducted an Exit Interview and unanimously agreed to defer your release date for 24 months based upon the doctor's report and diagnosis, coupled with all of the other information the Board considered. The Board did find you to suffer from a present severe emotional disturbance that constitutes a danger to the health or safety of the community. You state in your review request there was no substantial evidence to support the Board's finding because the psychological examination conducted on April 2, 1999, by Dr. David R. Starr, Ph.D., was without an interpreter which was necessary, in your opinion because of a hearing loss. The Board will note a letter from Norman Frink, MS CCC-A, Audiologist, dated January 17, 1983, attached to your review request which states in the summary section as follows:'Test results indicate a severe sensori-neural hearing loss in the right ear and a severe-profound sensori-neural hearing loss in the left ear. The hearing discrimination in his right ear is fair, but the discrimination in the left ear is very poor.' The Board also notes a second attachment, from Joseph Ponder, an inmate at Snake River Correctional Institution regarding `Understanding the psychology of the deaf and the affect [sic] of [Petitioner] being deaf and appearing for a psychological evaluation without an interpreter.' As it did in the Exit Interview, the Board has read and considered both of the attachments in addition to your statements in the review request.
It is further noted your allegation that the Board action is in violation of statutes and/or constitution because you contend you are a `disabled person both in regards to being essentially deaf, and in having an emotional disturbance that, if the psychological report can be believed, purportedly gives cause for his continued incarceration, in violation of the Americans with Disabilities Act.' You state you `. . . were deprived of Due Process in that you were not able to hear or be heard and as such the psychological examination was unfair therefore being deprived [of] the potential benefits under `Peek' and `Giblin' decision whereby a positive evaluation essentially mandates release. . . .'
The Board disagrees with your claims of there not being substantial evidence to support a finding of a present severe emotional disturbance that constitutes a danger to the community. The Board did consider the information contained in the psychological evaluation conducted on April 2, 1999, by Dr. Starr, but did not reach it's [sic] decision based solely upon that evaluation. Because your crimes were all committed prior to May 19, 1998, the Board also considered other evidence and information as well in deliberation such as, the interview conducted with you by the Board (with an interpreter), the severity of the crime (two counts of Sodomy I and two counts of Sodomy II of a seven and nine year old girl), past criminal history (four convictions as an adult including the current convictions. One was a previous conviction for Attempted Rape I.) (There were four arrests and one conviction as a juvenile. The conviction was for Attempted Sex Abuse I.), victim empathy and/or your participation in institutional treatment, educational programming and institutional conduct (96 since incarceration).
* * *
Regarding your claim and concern that the psychological examination was flawed or compromised because there was not an interpreter present the Board contacted Dr. Starr regarding your concerns. Dr. Starr responded on December 2, 1999, and stated, `It is certainly possible that he may have misinterpreted something that I may have said during the examination. It is notable, however, that I (Dr. Starr) took great care to repeat many questions to him when there was concern about his ability to understand what was being said.' Dr. Starr goes on to say, `. . . it is notable that [Petitioner] provided a significant amount of information about himself that was not difficult for me to understand at all.' He points out no request for an interpreter was made. Dr. Starr notes the diagnosis of Personality Disorder NOS with borderline and antisocial features which was very closely associated with your history of antisocial behavior coupled with impulsive behavior including suicidal acts. It was Dr. Starr's continued opinion that you do meet the diagnostic criteria for a Personality Disorder `even if he didn't fully understand discussions with the examiner during interview.' Dr. Starr closes by saying, `. . . whenever someone has a hearing impairment then idiosyncratic interpretations can be made by the examiner or the examinee. This possibility must be taken into account during the evaluation, and, in [Petitioner's] case, this was taken into account . . .'.
Resp. Exh. 104, pp. 1-2.
After the Board denied administrative relief, Petitioner filed a state petition for writ of habeas corpus in Malheur County Circuit Court alleging three claims for relief. The trial court granted the state's motion to dismiss Petitioner's claims under the ADA and the Vocational Rehabilitation Act, 29 U.S.C. § 794, but denied the motion as to Petitioner's due process claim. Following an evidentiary hearing, the trial judge found Petitioner failed to prove a due process violation. The trial judge made oral findings from the bench:
I did have an opportunity to listen to [Petitioner]. [Petitioner] can express himself well. [Petitioner] did say, in response to a question, that he did understand what was being said to him by Dr. Starr. Sometimes it took — it took more than one time to — to have him — to have Dr. Starr repeat the question, but he understood it. [Petitioner] also strikes me as a person, based on my observations of him here today, that would insist that Dr. Starr or anybody understand him if he felt that he wasn't being understood. So I do not believe that [Petitioner] has carried the burden and I will deny the motion — the petition for writ of habeas corpus.
Resp. Exh. 111, p. 21.
Petitioner appealed the denial of state habeas corpus relief, but the Oregon Court of Appeals summarily affirmed, and the Oregon Supreme Court denied review. Resp. Exhs. 117, 118.
Petitioner alleges three grounds for relief in his federal habeas corpus action before this Court: (1) the Board violated his due process rights under the Fourth and Fourteenth Amendments because the decision to deny release was based, in part, on a psychological interview conducted without a sign language interpreter; (2) the Board violated Petitioner's rights under the ADA by failing to provide Petitioner with a sign language interpreter for his psychological interview; and (3) the state habeas trial judge denied Petitioner due process by failing to consider Petitioner's ability to pay before imposing court-appointed attorney fee costs on Petitioner.
Respondent argues Petitioner procedurally defaulted his claims that the Board violated the ADA and that the state habeas court violated due process by failing to consider Petitioner's ability to pay before imposing court-appointed attorney fees against him. Respondent further argues the state court decisions denying relief on Petitioner's claim that the Board violated due process by failing to provide a sign language interpreter at the psychological interview are entitled to deference.
Petitioner concedes he procedurally defaulted the issue of court-appointed attorney fees. Petitioner also concedes he procedurally defaulted his ADA claim, but argues the ADA may have relevance to his due process claim independent of whether it is defaulted as a free-standing issue. Accordingly, the sole remaining issue before this Court is whether the Board violated Petitioner's due process rights.
LEGAL STANDARDS
A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he demonstrates that the state court's adjudication: "(1) 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; or (2) resulted in a decision that was 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); Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003).
A state court acts "contrary to . . . clearly established Federal law" if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ramdass v. Angelone, 530 U.S. 156, 165-66 (2000). An "unreasonable application of clearly established Federal law" occurs if a state court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle. Williams, 529 U.S. at 412; Ramdass, 530 U.S. at 166.
Determinations of factual issues by a state court are presumed to be correct, and a petitioner in federal court has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A petitioner must present clear and convincing evidence to overcome this presumption of correctness, conclusory assertions will not do. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981) (discussing former § 2254(d) presumption of correctness afforded findings of fact).
DISCUSSION
I. Unreasonable Determination of Facts
Petitioner argues the state habeas court's factual findings were unreasonable in light of the evidence presented in the state proceeding for two reasons. First, Petitioner asserts the observations of Petitioner by the state judge who conducted Petitioner's habeas proceeding, including whether he could express himself and whether he was the type of person who would insist on being understood, were "necessarily tainted" by the fact that Petitioner received the assistant of a sign language interpreter at the state habeas hearing. Second, Petitioner argues, the state judge "could not profess to be an expert in the psychology of the deaf" and that he unreasonably failed to address materials submitted by Petitioner relating to the psychology of the deaf.
Petitioner's arguments are not persuasive. Section 2254(d)(2) authorizes this Court to grant habeas relief in cases where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." As the Ninth Circuit recently explained, "to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, ___ F.3d ___, 2004 WL 1043343, *2 (9th Cir., May 10, 2004) (citing Lockyer, 538 U.S. at 75; Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000)).
In considering a claim such as that made by Petitioner here, i.e., that the state judge failed to consider and to weigh relevant evidence that was properly presented and made part of the state court record, this Court is mindful that "the state courts are not required to address every jot and tittle of proof suggested to them, nor need they `make detailed findings addressing all the evidence before [them].'" Taylor, 2004 WL 1043343, *5 (quoting Miller-El v. Cockrell, 537 U.S. 322, 347 (2003)). To render a state court's fact-finding process unreasonable, "the overlooked or ignored evidence must be highly probative and central to petitioner's claim. In other words, the evidence in question must be sufficient to support petitioner's claim when considered in the context of the full record bearing on the issue presented in the habeas petition." Id.
Petitioner fails to meet this burden. In the administrative appeal process, the Board reviewed the additional material concerning psychology of the deaf, and specifically noted as much in the written ruling. Moreover, the Board made abundantly clear its decision was not based solely on the psychological evaluation. Although the state judge did not directly address the additional materials, that evidence is not sufficient to support Petitioner's due process claim when considered in the context of the full record. Accordingly, this Court finds the state court decision denying Petitioner's due process challenge was not based upon an unreasonable determination of the facts in light of the evidence presented, and Petitioner is not entitled to relief on this basis. II. Objectively Unreasonable Application of Supreme Court Precedent
Having determined the state court's decision was not based upon an unreasonable determination of the facts, this Court must next consider whether the state court's conclusion that no due process violation occurred was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(2).
In the parole context, the requirements of due process are satisfied if "some evidence" supports the decision. McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002); Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389 (9th Cir. 1987) (adopting the "some evidence" standard set forth by the Supreme Court in Superintendent v. Hill, 472 U.S. 445, 456 (1985)). "Additionally, the evidence underlying the board's decision must have some indicia of reliability." Jancsek, 833 F.2d at 1390.
Here, ample evidence supported the Board's decision to deny Petitioner early release. As noted, the Board relied not only upon Dr. Starr's report, but also on several other factors, any one of which may have supported their conclusion. Moreover, notwithstanding the absence of a sign language interpreter at Dr. Starr's examination of Petitioner, the ensuing report had more than "some indicia" of reliability. Accordingly, the state court decision denying Petitioner's due process claim was not contrary to or an unreasonable application of clearly established federal law, and Petitioner is not entitled to relief under § 2254(d)(1).
CONCLUSION
For these reasons, the Court DENIES the Amended Petition for Writ of Habeas Corpus (#7) and DISMISSES this action.
IT IS SO ORDERED.