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Ex Post Facto Oregon Parole Postponement Claim Not Cognizable in §2254 Proceeding

by Mark Wilson

On October 31, 2019, an Oregon federal court held that a claim that extended parole postponement pursuant to the retroactive application of a new law violates the ex post facto clause and is not cognizable in a 28 USC § 2254 federal habeas corpus proceeding. Such a claim may be brought instead in a federal civil rights action pursuant to 42 USC § 1983.

Oregon prisoner Shayne Martin Jacobs was convicted of two counts of murder in 1981. The Oregon Board of Parole and Post-Prison Supervision ultimately established a July 7, 2009 release date for Jacobs.

During a 2008 hearing, the Board applied the law in effect in 1981 to postpone Jacobs’ release to the maximum possible, two-years, upon finding that he suffered from a present severe emotional disturbance that rendered him a danger to the health or safety of the community. This postponed his release to July 7, 2011.

During a 2010 hearing, the Board again found that Jacobs suffered from a present severe emotional disturbance, rendering him a danger to the community. This time, however, the Board retrospectively applied a 2009 law that purported to authorize the Board to postpone release up to ten years. The Board ultimately postponed his release five years, establishing a new release date of June 7, 2016.

After exhausting state administrative and judicial remedies, Jacobs filed a § 2254 federal habeas corpus action. He argued that the five-year parole postponement based on the retrospective application of the 2009 law violates the ex post facto prohibition of the United States Constitution.

The district court granted the government’s motion to dismiss, finding that ex post facto claims are not cognizable in federal habeas corpus cases.

“Only claims that will necessarily lead to an earlier release fall within the core of habeas corpus,” the Court noted. “Were the Court to find an ex post facto violation, Petitioner would not be entitled to earlier release, only more frequent parole consideration where the Board could continue to defer his parole if appropriate.”

Citing Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) and Gordon v. Premo, 757 Fed Appx. 627, 627-28 (9th Cir. 2019), the Court found that Jacobs’ s ex post facto claim did not lie at the core of habeas corpus because success in the federal habeas proceeding “would result only in speedier parole consideration and not necessarily Petitioner’s speedier release.” Wilkinson made clear that if the claim is not cognizable in a § 2254 action, it may be brought, instead, in a federal civil rights proceeding pursuant to 42 USC § 1983. See: Jacobs v. Kelly, USDC (D. Or.), Case No. 6: l9-cv-00342-HZ.

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Related legal case

Jacobs v. Kelly