IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MARK FOREST TEMPLETON, 

Petitioner, 

v. 

RICK COURSEY, et al., 

Respondents. 

Mark Forest Templeton 

7947738 

Case No. 2:14-cv-01322-SI 

OPINION AND ORDER 

Eastern Oregon Correctional Institution 

2500 Westgate 

Pendleton, OR 97801-9699 

Petitioner, Pro Se 

Ellen F. Rosenblum, Attorney General 

Samuel A. Kubernick, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondents 

1 - OPINION AND ORDER 

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SIMON, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 in which he appears to challenge the legality of a 

2011 decision by the Oregon Board of Parole and Post-Prison 

Supervision ("Board") deferring his release. For the reasons 

that follow, the Petition for Writ of Habeas Corpus (#2) is 

denied. 

BACKGROUND 

In 1991, petitioner pleaded no-contest to one count of 

Murder in Umatilla County, and guilty to one count of Conspiracy 

to Commit Murder. Respondent's Exhibit 103. As a result, the 

trial court sentenced him to life imprisonment with a 20-year 

minimum on the Murder conviction, and a consecutive 20-year 

prison term on the Conspiracy conviction. Respondent's Exhibit 

101. Petitioner was not successful in his subsequent direct and 

post-conviction relief ("PCR") appeals. 

In 2011, the Board determined that petitioner suffered from 

a present severe emotional disturbance so as to constitute a 

danger to the health or safety of the community. Respondent's 

Exhibit 136, pp. 6, 77. As a result, it deferred petitioner's 

projected release date approximately ten years. Id. 

On August 26, 2011, petitioner filed a state habeas corpus 

action in Umatilla County wherein he challenged the Board's 

decision. Id at 1-3. The State asked the court to deny the 

petition as "meritless because it failed to allege sufficient 

facts to state a claim for habeas corpus relief." Respondent's 

Exhibit 138, p. 1. Specifically, the State argued that because 

2 - OPINION AND ORDER 

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ORS 144.335 entitled petitioner to direct judicial review of the 

Board's order, he was not eligible to seek state habeas corpus 

relief. Id at 2. The state habeas court granted the motion, 

finding habeas corpus unavailable under state law where 

petitioner had other avenues by which to challenge the Board's 

action. Respondent's Exhibits 140-41. 

Petitioner appealed the state habeas court's dismissal with 

the assistance of appointed counsel, but counsel could not find 

any non-frivolous issues for appeal and submitted a Balfour brief 

on petitioner's behalf. 1 The Oregon Court of Appeals affirmed 

the state habeas court's decision without opinion, and the Oregon 

Supreme Court denied review. Templeton v. Coursey, 260 Or. App. 

782, 325 P.3d 69, rev. denied, 355 Or. 381, 328 P.3d 697 (2014). 

Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on 

August 18, 2014. In his Petition, he raises claims pertaining to 

both the Board's 2011 deferral of his release to parole as well 

as his underlying criminal convictions. Respondent asks the 

court to deny relief on the Pe ti ti on because: ( 1) any claims 

pertaining to petitioner's 1991 convictions are untimely and 

procedurally defaulted; and (2) petitioner failed to fairly 

present any claims pertaining to the Board's 2011 deferral of his 

release to parole to Oregon's state courts, leaving those claims 

procedurally defaulted. 

1 Oregon's Balfour procedure provides that counsel need not ethically 

withdraw when faced with only frivolous issues. Rather, the attorney may 

Section A of an appellant's brief containing a statement of the case 

sufficient to "apprise the appellate court of the jurisdictional basis for 

appeal." State v. Balfour, 311 Or. 434, 451, 814 P.2d 1069 (1991). The 

defendant may then file the Section B segment of the brief containing any 

assignments of error he wishes. Id at 452. 

3 - OPINION AND ORDER 

file 

the 

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DISCUSSION 

I. Claims Arising from Petitioner's Convictions 

The cover page of the Petition for Writ of Habeas Corpus 

purports to challenge petitioner's 1991 convictions. Petition 

(#2), p. 1. Indeed, the majority of the claims in his Petition 

attack those convictions. Specifically, petitioner alleges that: 

( 1) his direct appellate counsel altered his criminal judgment 

(Ground Two); (2) the prosecution refused to provide him with any 

discovery until four years after he entered his pleas (Ground 

Three); (3) his criminal trial judge did not take a proper oath 

of office (Ground Four); ( 4) his indictments were unlawful 

(Ground Five); (5) law enforcement personnel tampered with 

evidence and witnesses (Ground Six); and (6) his trial attorney 

improperly allowed him to enter into plea bargains despite his 

innocence (Ground Seven) . 

In his supporting memoranda, however, petitioner advises the 

court that he does not seek to challenge his convictions or 

sentence. Memo in Support (#43), p. 2; Memo in Support (#44), 

p. 2. Instead, he asserts that he wishes to challenge "the 

multiple court ordered plea agreement contract violations." Id. 

Because the Petition appears to place the legality of 

petitioner's convictions at issue, the court first addresses the 

claims related to those convictions. 

Petitioner entered his pleas in 1991, and his convictions 

became final shortly thereafter when he voluntarily dismissed his 

direct appeal in 1992. Respondent's Exhibits 111-12. Petitions 

which challenge convictions that became final before Anti4 - OPINION AND ORDER 

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terrorism and Effective Death Penalty Act's effective date of 

April 24, 1996 are timely only if filed before April 24, 1997. 

Ford v. Hubbard, 305 F.3d 875, 882 (9th Cir. 2002). Where 

petitioner did not file this federal habeas challenge until 

August 2014, there is no dispute that it falls outside of the 

AEDPA' s one-year statute of limitations. Instead, petitioner 

argues that the one-year statute of limitations contained within 

the AEDPA is unlawful because it amounts to an absence of 

judicial oversight, and because the AEDPA' s application to him 

amounts to an ex post facto violation where his conviction 

clearly predates the statute. AEDPA's one-year statute of 

limitations is lawful, Ferguson v. Palmateer, 321 F. 3d 820, 823 

(2003), and it is proper to apply the AEDPA to his case because 

he filed his Pe ti ti on after the statute's effective date. See 

Woodford v. Garceau, 538 U.S. 202, 207 (2003). Petitioner's 

grounds for relief pertaining to his convictions and sentence are 

therefore dismissed as untimely. 2 

II. Challenge to Parole Deferral 

In his remaining ground for relief (Ground One), petitioner 

alleges that the Board improperly deferred his release to parole 

in 2011 when it violated his rights to due process and to be free 

from ex post facto punishment. A habeas petitioner must exhaust 

his claims by fairly presenting them to the state's highest 

court, either through a direct appeal or collateral proceedings, 

2 Although not the basis of the dismissal of these claims, the court also 

notes that petitioner is prohibited from challenging multiple state court 

judgments in the same Petition. Rule 2(e) of the Rules Governing Section 2254 

Cases. 

5 - OPINION AND ORDER 

Case 2:14-cv-01322-SI Document 64 Filed 02/14/17 Page 5 of 8
before a federal court will consider the merits of those claims. 

Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a 

petitioner satisfies the exhaustion requirement by fairly 

presenting the federal claim to the appropriate state 

courts . in the manner required by the state courts, thereby 

'affording the state courts a meaningful opportunity to consider 

allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-

916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 

257, (1986)). A federal court is precluded from reviewing the 

merits of a claim if the state court denial was based upon the 

application of a state law that is independent of the federal 

question and adequate to support the judgment. Coleman v. 

Thompson, 501 U.S. 722, 729-32 (1991); Vansickel v. White, 166 

F.3d 953, 957 (9th Cir.), cert. denied, 528 U.S. 965 (1999). 

A petitioner is deemed to have ''procedurally defaulted'' his 

claim if he failed to comply with a state procedural rule, or 

failed to raise the claim at the state level at all. Edwards v. 

Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 750. 

If a petitioner has procedurally defaulted a claim in state 

court, a federal court will not review the claim unless the 

petitioner shows "cause and prejudice" for the failure to present 

the constitutional issue to the state court, or makes a colorable 

showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 

162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray 

v. Carrier, 477 U.S. 478, 485 (1986). 

As discussed above, petitioner challenged the Board's 2011 

deferral of his parole in a state habeas corpus action. However, 

6 - OPINION AND ORDER 

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ORS 144.335 provided that his judicial remedy was a direct appeal 

of the adverse parole decision to the Oregon Court of Appeals. 

Given that he had such a judicial remedy, ORS 34.330 forbade him 

from filing for habeas corpus relief. Consequently, the Umatilla 

County Circuit Court dismissed the state habeas action pursuant 

to statutory rules that were independent of the federal question 

and adequate to support the judgment of dismissal. 

The state habeas court issued its judgment on a standard 

form and, in so doing, checked the boxes indicating that the case 

presented federal and state constitutional issues and that "[a]ll 

questions were presented and decided." It does not appear from 

the record that the state habeas court actually considered the 

merits of petitioner's claims, 3 and instead decided the case 

solely on procedural grounds. Respondent's Exhibits 140-41. 

However, even assuming the state habeas court reached an 

alternative holding on the merits of petitioner's claims, "a 

state court need not fear reaching the merits of a federal claim 

in an alternative holding. By its very definition, the adequate 

and independent state ground doctrine requires the federal court 

to honor a state holding that is a sufficient basis for the state 

court's judgment, even when the state court also relies on 

federal law." Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) 

(emphasis in original) . 

Because petitioner may no longer pursue his due process and 

ex post facto claims in Oregon's state courts, they are 

3 This is especially true where the State did not file any briefing on the 

merits of petitioner's claims, and asked the Judge to dismiss the case solely 

for procedural reasons. Respondent 1 s Exhibit 138. 

7 - OPINION AND ORDER 

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procedurally defaulted. See ORS 138.071 (requiring that direct 

appeals be filed within 30 days). Petitioner has not 

demonstrated cause and prejudice or made a colorable showing of 

actual innocence so as to excuse his default. Accordingly, 

relief on the Petition is denied. 

CONCLUSION 

For the reasons identified above, the Petition for Writ of 

Habeas Corpus ( #2) is denied. The court declines to issue a 

Certificate of Appealability on the basis that petitioner has not 

made a substantial showing of the denial of a constitutional 

right pursuant to 28 U.S.C. § 2253(c)(2). 

IT IS SO ORDERED. 

DATED this ~ day of 

United States District Judge 

8 - OPINION AND ORDER 

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