Gilbert C. Brown v. Joan Palmateer, Superintendent, Oregon State Penitentiary

379 F.3d 1089 Gilbert C. BROWN, Petitioner-Appellant, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent-Appellee. No. 03-35618. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 12, 2004. Filed August 17, 2004. COPYRIGHT MATERIAL OMITTED Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, for the petitioner-appellant. Carolyn Alexander, Assistant Attorney General, Salem, Oregon, for the respondent-appellee. Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. Before FLETCHER, and TALLMAN, Circuit Judges. Opinion by Judge GOODWIN; Dissent by Judge TALLMAN. GOODWIN, Circuit Judge: 1 Petitioner Gilbert C. Brown alleges that his constitutional rights were violated when a statute, enacted after the commission of his crimes, was applied by the Oregon State Board of Parole and Post-Prison Supervision ("Board") to postpone his parole release date. He contends that this violation of the Ex Post Facto Clause constitutes a constitutional injury that compels reversal of the district court's denial of his petition for habeas corpus. We agree. BACKGROUND 2…

dissenting:

This case boils down to differing interpretations of Oregon State law. The majority interprets Oregon law to say one thing, and the Oregon Court of Appeals clearly held that it says another. Because state courts have the final word on interpreting their own state laws, except in extraordinary circumstances not present here, I respectfully dissent. See Mullaney v. Wilbur, 421 U.S. 684, 691 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975) (“This Court ... repeatedly has held that state courts are the ultimate expositors of state law ... except in extreme circumstances.”)

The question is whether the Oregon State Board of Parole and Post-Prison Supervision could properly postpone petitioner’s parole under Oregon Revised Statutes § 144.125, as it was written in 1982, when petitioner was convicted of child molestation. If so, no ex post facto violation occurred.

As the majority correctly explains, the precise issue is whether petitioner’s 1995 psychiatric evaluation qualifies as a “psychiatric or psychological diagnosis of present severe emotional disturbance” constituting a danger to public safety. Id.; see also Christenson v. Thompson, 176 Or.App. 54, 59 , 31 P.3d 449 (2001)…

Opinion by Judge GOODWIN; Dissent by Judge TALLMAN.

Petitioner Gilbert C. Brown alleges that his constitutional rights were violated when a statute, enacted after the commission of his crimes, was applied by the Oregon State Board of Parole and Post-Prison Supervision (“Board”) to postpone his parole release date. He contends that this violation of the Ex Post Facto Clause constitutes a constitutional injury that compels reversal of the district court’s denial of his petition for habeas corpus. We agree.

BACKGROUND

I. Oregon’s Statutory Scheme for Postponing Parole Release

Brown challenges the application of an Oregon statute, passed after he committed his crimes, which changed the method by which the Board decided whether to postpone a prisoner’s parole date. Before December 1993, Oregon Revised Statutes § 144.125 provided:

Or.Rev.Stat. § 144.125(3) (1991).

In 1993, the Oregon legislature amended § 144.125(3) to read:

Or.Rev.Stat. § 144.125(3)(a) (1993).

II. Factual Background

Petitioner Brown was convicted in 1982 of four counts of sodomy and one count of rape for assaulting his daughter. Brown received indeterminate sentences of sixty years for these crimes.

In a July…