IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHAEL W. JENKINS, 

Petitioner, 

v. 

MR. J. MYRICK, Superintendent, 

Respondent. 

ANTHONY D. BORNSTEIN 

Assistant Federal Public Defender 

101 SW Main Street 

Suite 1700 

Po1tland, OR 97204 

Attorneys for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

ANDREW D. HALLMAN 

Assistant Attorney General 

Department of Justice 

1162 Comt Street NE 

Salem, OR 97301 

Attorneys for Petitioner 

1 - FINDINGS AND RECOMMENDATION -

Civil No. 2: 15-cv-00349-AC 

FINDINGS AND RECOMMENDATION 

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 1 of 12
ACOSTA, Magistrate Judge. 

Petitioner, an irunate at the Two Rivers Correctional Institution, brings this habeas corpus 

action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas 

Corpus should be DENIED. 

BACKGROUND 

On July 30, 1980, Petitioner was convicted in Multnomah County on two counts of Rape 

in the First Degree, one count of Kidnaping in the First Degree, one count of Sodomy in the First 

Degree, and one count of Robbery in the Third Degree. Resp. Exh. 101. The trial judge sentenced 

Petitioner to an 83-year indeterminate prison term. Resp. Exh. 101. On November 2, 1990, 

Petitioner was convicted in Marion County on one count of Supplying Contraband and sentenced 

to a 15-month te1m ofimprisorunent, to run consecutive to his 1980 sentence. Resp. Exh. 101. 

In September 1997, the Oregon Board of Parole and Post-Prison Supervision (the "Board") 

conducted an administrative review of Petitioner's prison sentence. Resp. Exh. 103, pp. 144-46. 

The Board ove1rnde the judicial sentences and found 246 months of imprisorunent to be an 

adequate prison term. Resp. Exh. 103, pp. 144-46. 

In September 2008, the Board conducted an exit interview hearing to dete1mine Petitioner's 

suitability for release on parole. Resp. Exh. 103, pp. 254-56. Following the hearing, the Board 

deferred Petitioner's parole release date for 24 months. Resp. Exh. 103, p. 256. The Board 

explained its decision in Board Action Form ("BAF") #14: 

Based on the doctor's report and diagnosis, coupled with all the information that the 

board is considering, the board concludes that the irunate suffers from a present 

severe emotional disturbance that constitutes a danger to health or safety of the 

2 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 2 of 12
community. The board has considered this matter under the laws in effect at the 

time of the commitment offense(s) and all other applicable rules and laws. 

Resp. Exh. 103, p. 256. 

Following the Board's issuance ofBAF #14, Petitioner filed three Administrative Review 

Requests in October 2008. Resp. Exh. 259-274. On November 13, 2009, the Board issued an 

Administrative Review Response ("ARR") rejecting Petitioner's claims. Resp. Exh. 103, pp. 225-

227. In the ARR, the Board expounded on the reasons set foiih in the BAF for denying Petitioner's 

release: 

On September 24, 2008, the board conducted an exit interview with you. After 

considering all of the evidence presented at this hearing, including a psychological 

evaluation prepared by Dr. Frank P. Colistro on June 30, 2008, and applying the 

substantive standard in effect at the time you committed your crime as well as the 

applicable procedural rules, the board found that you were suffering from a present 

severe emotional disturbance such as to constitute a danger to the health or safety 

of the community. 

Resp. Exh. 103, p. 226. 

Petitioner appealed the Board's decision to the Oregon Co tut of Appeals, asserting three 

assignments of error: (1) the Board did not provide a substantial reason for denying release as 

required by Or. Rev. Stat. § 183 .482(2); (2) the Board did not state in writing the basis for its 

decision as required by Or. Rev. Stat.§ 144.135; and (3) the Board's order deferring release 

violated the Due Process Clause of the Fotuieenth Amendment. Resp. Exh. 105. The Oregon 

Court of Appeals reversed the Board's decision in a written opinion that concluded the Board was 

required under Or. Rev. Stat. § 144.335( e) to provide an inmate with a substantial reason for denial 

and that, in Petitioner's case, the Board failed to do so. Jenkins v. Board of Parole and Post-Prison 

Supervision, 258 Or. App. 430, 309 P.3d 1115 (2013). In so deciding, the Cotutof Appeals looked 

3 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 3 of 12
only to the language contained in the BAF, which the court found did not satisfy the statutory 

requirement to provide a substantial reason for denying release. Id. at 444. The Oregon Court of 

Appeals noted that it did not reach the Due Process argument set fmih by Petitioner because it 

decided the issue on state-law grounds. Id. at 432 n.2. 

The Board sought review from the Oregon Supreme Court. Resp. Exh. 114. In the briefing 

before the Oregon Supreme Court, the Board discussed Petitioner's state law claims, and also 

argued Petitioner's due process claim should be denied on the merits. Resp. Exh. 111, pp. 27-30. 

Petitioner did not address any federal claims in his briefing to the Oregon Supreme Court; instead, 

he reiterated his arguments on the state law claims. Resp. Exh. 113. The Oregon Supreme Court 

reversed the Oregon Court of Appeals, finding that the explanation contained in the Board's ARR 

could be considered in addition to the explanation provided in the BAF, and that the ARR satisfied 

Or. Rev. Stat. §§ 144.135 and 183.482(8). Jenkins v. Board of Parole and Post-Prison Supervision, 

356 Or. 186, 335 P.3d 828 (2014). The Oregon Supreme Comt did not address any federal claims. 

Petitioner filed a petition for reconsideration with the Oregon Supreme Comi. Petitioner 

argued the Oregon Supreme Court effectively allowed the Board to violate the Ex Post Facto and 

Due Process Clauses "by applying a[n] amended version of ORS 144.335(a)-(b) (1991), a law that 

was not in effect during the commission when [petitioner's] crimes was committed." Resp. Exh. 

118. The Oregon Supreme Co mi denied Petitioner's request for reconsideration. Resp. Exh. 119. 

Petitioner then filed his Petition for Writ of Habeas Corpus in this Comi. In his pro se 

Petition, he alleges the following verbatim grounds for relief': 

1

The Court subsequently appointed counsel to represent Petitioner. 

4 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 4 of 12
Ground One: The board of Parole Prejudice me by violating my rights to due 

process of law and equal protection of law under the 14th Amendment the United 

States Constitution and the state and federal ex Post-facto clause. 

Supporting Facts: The Board of Parole applied a amended Oregon revise statute 

that was not in effect during the commission of my crime and by doing so it 

prejudice me and violated my right to the 14th amendment of the United States 

Constitution and the state and federal ex Post-facto clause. 

Ground Two: The Board of Parole applied an amended statute that was 

promulgated in 1991(ORS144.335(a)-(b) (1991).) 

Supporting Facts: This law that was not in effect during the commission when my 

crimes was committed added a element of (a) and (b) to ORS 144.335(1) that 

allowed the Board of Parole to go beyond the final order of the BAF, by including 

a administrative review response as the final order when in fact the BAF is the final 

order pui·suantto ORS 144.335(1) (1979). The law in effect during the commission 

when the said crimes was committed. 

Ground Three: The Comi of Appeals in case CAA144545 reversed the Parole 

Board decision and the Oregon Supreme Comi in Case No. S061812 reversed the 

Court of Appeals reversal. 

Supporting Facts: The Oregon Supreme Court in Case No. S061812 violated the 

ex post-facto clause by allowing ORS 144.335(1)(a)-(b) (1991) as the final order to 

increase the punishment that ORS 144.335(1) (1979) did not allow in the BAF that 

was clarified as the final order in Harris v. Board of Parole, 47 Ore. App. 289. 

Ground Four: In 1979, ORS 144.135 established that the Bafpursuant to ORS 

144.335(a) (1979) was in fact the final order. 

Supporting Facts: ORS 144.135 required the Board of Parole to state in detail in 

the BAF (final order) their decision rendered pursuant to ORS 144.335(a) (1979). 

Respondent argues Petitioner is not entitled to relief on the claims alleged in Ground One 

for three reasons: (1) because he fails to explain how the procedural requirements of Or. Rev. Stat. 

§ 144.335 could implicate the due process or ex post facto clauses; (2) because, to the extent 

Petitioner alleges an ex post facto claim, that claim is procedurally defaulted; and (3) to the extent 

Petitioner alleges a due process claim he is not entitled to relief on the merits. Respondent futiher 

argues Petitioner's claims alleged in Grounds Two, Three, and Four fail to state a claim upon which 

5 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 5 of 12
relief may be granted under § 2254 because they allege only state-law violations, and make no 

reference to any federal claim. In his counseled Brief in Support, Petitioner argues only that the 

Board violated his right to be free from ex post facto punishment. 

DISCUSSION 

I. Ex Post Facto - Ground One 

Petitioner argues the Board violated his rights under the Ex Post Facto Clause by applying 

a statute that allowed the Oregon Supreme Court to go beyond the final order of the BAF and 

include into their ruling the Board's ARR to reverse the Oregon Court of Appeals decision, and 

thus find that the Board did not violate Petitioner's due process rights. In essence, Petitioner argues 

that at the time his crime was committed, the Oregon courts could not look beyond the BAF to 

determine whether the Board satisfied the statutory requirement that an order denying release on 

parole be supported by substantial reasons. A subsequent change to Oregon law, he argues, allowed 

the Oregon Supreme Court to look beyond the BAF, to the reasoning asserted by the Board in its 

ARR, to detennine whether the Board provided "substantial reasons" to deny release. As noted, 

Respondent contends Petitioner procedurally defaulted his ex post facto claim. In any event, 

Respondent argues, Petitioner would not be entitled to relief on the merits of this claim. 

A. Exhaustion and Procedural Default 

A state prisoner must exhaust all available state remedies before seeking a federal writ of 

habeas corpus by "fairly presenting" his or her claims to the highest state comi. Baldwin v. Reese, 

541 U.S. 27, 29 (2004). Fair presentation requires the prisoner to alert the state courts of his or her 

federal claims by citing the federal source of law, an applicable case, or by labeling the claims as 

6 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 6 of 12
"federal." Id. at 32. To properly exhaust the federal claim, a prisoner must submit his or herclaim 

in a procedural context in which the merits of the claim could be considered without special 

circumstances. Casey v. 1vfoore, 386 F.3d 896, 918 (9th Cir. 2004) (finding no fair presentation 

where the claim was presented for the first and only time on discretionary review to the state's 

highest court). Presenting a claim "to the state's highest comt in a procedural context in which its 

merits will not be considered absent special circumstances dose not constitute fair presentation." 

Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 

(1989)) (claim not fairly presented when raised for the first time on petition for discretionary review 

to the state Supreme Court). 

If a petitioner has failed to present a federal constitutional claim to the state's highest court 

(i.e., has failed to exhaust state remedies) and can no longer do so because of a procedural bar, that 

claim is procedurally defaulted. 0 'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (citing Coleman 

v. Thompson, 501 U.S. 722, 731-32 (1991)). Once a petitioner has procedurally defaulted a claim, 

federal habeas corpus review is ball'ed unless the petitioner can demonstrate: (I) cause for the 

procedural default, and (2) actual prejudice from the failure. Edwards v. Carpenter, 529 U.S. 446, 

451 (2000); Coleman, 501 U.S. at 750. Procedural defaults may also be excused by demonstrating 

a "fundamental miscarriage of justice." Edwards, 529 U.S. at 451. 

Petitioner did not assert his claim of ex post facto violation until he filed his request for 

reconsideration with the Oregon Supreme Court. The Oregon Supreme Court denied the request 

for reconsideration with a one-sentence order: "The comt has considered the petition for 

reconsideration and orders that it be denied." Resp. Exh. 119. Petitioner argues the order indicates 

7 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 7 of 12
the Oregon Supreme Court appears to have addressed the ex post facto claim and, as such, the court 

had a full and fair opportunity to consider the merits of the alleged constitutional violation. 

Customarily, the Oregon Supreme Court does not address issues raised for the first time on 

appeal. Or. R. App. P. 9.05(3)(e). There is no right to an appeal to that court; all review is 

discretionmy. Baldwin, 541 U.S. at 32. If review is granted, the comt generally limits its 

consideration to issues presented in the Petition for Review and the Answer, although the court may 

also consider any other issues that were before the Oregon Court of Appeals. Or. R. App. P. 

9.20(2). Petitioner presented his ex post facto arguments for the first time in a motion for 

reconsideration, prompting, essentially, a second round of discretionary review. Here, contrary to 

Petitioner's argument, the Oregon Supreme Comt's summary denial of Petitioner's motion for 

reconsideration gives no indication that the court reviewed Petitioner's ex post facto claim on the · 

merits. See Green v. Lambert, 288 F.3d 1081, 1087 n.2 (9th Cir. 2002) (summary dismissal of 

motion for reconsideration to higher court with discretiona1y review powers raising new 

constitutional claim for first time falls "squarely within the reach of Castille," which held that 

issues raised for the first time in purely discretionmy motions are not exhausted for federal habeas 

purposes when those motions are dismissed without comment). 

Petitioner did not fairly present his ex post facto claim to the Oregon cou1ts and, because 

the time to do so has now expired, Petitioner has procedurally defaulted this claim. Because 

Petitioner has not demonstrated cause and prejudice or a fundamental miscaniage of justice to 

excuse his procedural default, habeas corpus relief on the ex post fact claim alleged in Ground One 

should be denied. 

8 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 8 of 12
B. Relief on the Merits 

In any event, even if Petitioner had not procedurally defaulted his ex post facto claim, he 

is not entitled to relief on the merits of his claim. · The Ex Post Facto Clause of the U.S. 

Constitution bars "enactments, which by retroactive operation, increase the punishment for a crime 

after its commission." Garner v. Jones, 529 U.S. 244, 249-50 (2000); Cal. Dep 't. of Corr. v. 

11,;forales, 514 U.S. 499, 508-509 (1995). It is well settled that retroactive changes in laws 

governing the parole of prisoners, in some instances, may violate the Ex Post Facto Clause. 

Garner, 529 U.S. at250;1vforales, 514 U.S. at 508-09; Himes v. Thompson, 336 F.3d 848, 854 (9th 

Cir. 2003); Nulph v. Faatz, 27 F.3d 451, 455 (9th Cir. 1994). 

The Supreme Court has recognized the inherent difficulty in determining whether 

retroactive application of a particular change in parole rules violates the Ex Post Facto Clause, 

given the discretionary nature of parole board decisions. Garner, 529 U.S. at 250. The Comi has 

cautioned that "not eve1y retroactive procedural change creating a risk of affecting an inmate's 

tenns or conditions of confinement is prohibited" and there is no "single formula for identifying 

which legislative adjustments, in matters bearing on parole, would survive an ex post facto 

challenge." Garner, 529 U.S. at 250 & 252; 11,;lorales, 514 U.S. at 508-09; Brown v. Palmateer, 

3 79 F.3d 1089, 1093 (9th Cir. 2004). The question is a matter of degree, and the controlling inquhy 

is whether retroactive application of the change in the law creates a "sufficient risk of increasing 

the measure of punishment" attached to the petitioner's crime. Garner, 529 U.S. at 250; lYfora/es, 

514 U.S. at 509; Gilman v. Schwarzenegger, 638 F.3d 1101, 1106 (9th Cir. 2011). 

9 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 9 of 12
Here, to the extent the Oregon Supreme Co mi considered Petitioner's ex post facto claim, 

the denial of relief was not objectively umeasonable. The Board did apply a rule or law to 

petitioner retrospectively. However,. that particular rule did not constitute a "facial violation of the 

Ex Post Facto Clause." Nulph, 27 F.3d at 456-57. Moreover, in order to succeed on a claim that 

the rule was detrimental to him, as applied, petitioner "would be required to show that he would 

have received a shorter prison te1m under the old rule." Id. at 457. Petitioner presented no such 

evidence to the Oregon Supreme Court, and presents no such evidence here. 

The sole result of application of the new statute to Petitioner's situation was the inclusion 

of the Board's reasoning in the ARR as part of the "final order" for the purposes of review. 

Petitioner has not demonstrated that, had the ARR not been included as pmi of the "final order" for 

the purposes of review, he would have been entitled to release on parole. 2 As such, Petitioner is 

not entitled to habeas corpus relief on the ex post facto claim alleged in Ground One. 

II. Unaddressed Claims - Ground One (Due Process) and Grounds Two, Three, and Four 

As noted, Petitioner does not address in his Brief in Support the due process claim alleged 

in Ground One or any of the claims alleged in Grounds Two, Three, or Four. A petitioner seeking 

federal habeas relief bears the burden of showing the comi he is entitled to relief. Woodford v. 

Visciotti, 537 U.S. 19, 24 (2002); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004), cert. 

dismissed, 545 U.S. 1165 (2005). Pursuant to 28 U.S.C. § 2248, "[t]he allegations of a return to 

the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, 

2

In fact, pursuant to the Oregon Co mi of Appeals' decision in Petitioner's favor which 

was reversed by the Oregon Supreme Court, the remedy was not release, but instead, a "remand 

for the board to provide an explanation of its decision." Jenkins, 258 Or. App. at 444. 

10 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 10 of 12
if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence 

that they are not true." The Court has reviewed the record and finds Petitioner has not met his 

burden of showing he is entitled to relief on the due process claim alleged in Ground One, or any 

of the claims alleged in Grounds Two, Three, or Four.· 

To the extent Petitioner advances the due process claim alleged in Ground One on the same 

bases upon which he presented his due process claim to the Oregon state courts, relief on must be 

denied. Petitioner received all the process due an inmate facing the deprivation of parole release: 

the opportunity to be heard and to be informed of the reasons for parole denial. See Swarthout v. 

Cooke, 562 U.S. 216 (2011); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 15-16 (1979). 

Accordingly, the Oregon state court decisions denying relief on Petitioner's due process claim are 

entitled to deference. 

With respect to the claims alleged in Grounds Two, Three, and Four, a federal court may 

ente1iain an application for writ of habeas corpus by a state prisoner "only on the ground that he is 

in custody in violation of the Constitution or laws or treaties of the United States." Swarthout, 562 

U.S. at 219. Federal habeas corpus relief"does not lie for en-ors of state law." Id. Petitioner 

alleges violation of state laws in Grounds Two, Three, and Four.3 Accordingly, those claims fail 

to state a claim upon which relief may be granted under § 2254. 

3

Petitioner mentions the "ex post-fact clause" in Ground Three, but otherwise speaks 

only to state law. In any event, to the extent the claim alleged in Ground Three may be broadly 

construed to state a federal ex post facto claim, as discussed above relief on such a claim is not 

warranted. 

11 - FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 11 of 12
RECOMMENDATION 

For these reasons, the Petition for Writ of Habeas Corpus should be DENIED, and a 

judgment of DISMISSAL should be entered. Because Petitioner has not made a substantial 

showing of the denial of a constitutional right, a certificate of appealability should be DENIED. 

See 28 U.S.C. § 2253(c)(2). 

SCHEDULING ORDER 

The above Findings and Recommendation are referred to a United States District Judge for 

review. Objections, if any, are due January 27, 2016. If no objections are filed, review of the 

Findings and Recommendation will go under advisement that date. 

A party may respond to another party's objections within 14 days after the objections are 

filed. If objections are filed, review of the Findings and Recommendation will go under advisement 

upon receipt of the response, or on the latest date for filing a response. 

/)4 - DATED this1_,0_ day of January, 2016. ( 

/ \ r/ /) ( __ :~ ' <~ Jo ·v. Acosta 

United States Magistrate Judge 

12- FINDINGS AND RECOMMENDATION -

Case 2:15-cv-00349-AC Document 27 Filed 01/12/16 Page 12 of 12