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Unexhausted Oregon Parole Claims Not Cognizable

Unexhausted Oregon Parole Claims Not Cognizable

by Mark Wilson

On March 19, 2014, the Oregon Court of Appeals held that a pro se prisoner’s parole decision claims were not cognizable on appeal because he failed to raise those issues in his administrative review request.

The Oregon Board of Parole and Post-Prison Supervision (Board) establishes prison terms and parole release dates for prisoners who committed their crimes before November 1, 1989. A prisoner may seek judicial review of a Board decision, but first must exhaust available administrative review remedies, which requires a prisoner to “specifically identify how the challenged board action is alleged to be in violation of statutes or board rules or in what other way the offender believes the board’s action to be in error.” OAR 255-080-0008(1)(d).

In July 2011, the Board held a prison term hearing for Ridge Fleming. Based upon findings of aggravation, the Board imposed a 72-month enhancement above the top of Fleming’s applicable matrix range, establishing a 360-month prison term and an April 30, 2016 parole release date. Prior to the hearing, Fleming asserted that it would be an error to exceed his applicable matrix range on a finding of aggravation. He did not, however, re-assert those issues in his administrative review request.

Fleming appealed the Board’s order pursuant to ORS 144.335, asserting eight assignments of error. The Court rejected three claims without discussion and found that the other five were not properly before the court, because Fleming did not raise them in his administrative review request before the Board. The Court agreed that those issues were “not cognizable on judicial review” since they weren’t asserted in his administrative review request. See: Flemingv.Board of Parole and Post-Prison Supervision, 261 Ore. App. 604 (Or. Ct. App. 2014), review denied.

Related legal case

Flemingv.Board of Parole and Post-Prison Supervision


 

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