Voth v. Reyes

                                   108

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
  Submitted June 10, affirmed December 7, 2022, petition for review denied
                        March 30, 2023 (

)


                     FRANK E. VOTH,
                     Plaintiff-Appellant,
                               v.
                        Erin REYES,
                       Superintendent,
              Two Rivers Correctional Institution,
                   Defendant-Respondent.
                Umatilla County Circuit Court
                    21CV29888; A176835


  Eva J. Temple, Judge.
   Jedediah Peterson and O’Connor Weber, LLC, filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
  PAGÁN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2022)                                109

           PAGÁN, J.
         Plaintiff, an inmate incarcerated at the Two Rivers
Correctional Institution, appeals from the denial of his petition for a writ of habeas corpus. The superintendent of the
institution (defendant) moved to deny the petition under
ORS 34.680(1).1 The trial court granted the motion and dismissed the case without prejudice. We affirm.
         We review for legal error the denial of a petition for
a writ of habeas corpus under ORS 34.680(1). Foust v. Nooth,

, 

, rev dismissed, 

(2016). A motion to deny under ORS 34.680(1) is analogous to
a motion to dismiss a civil complaint under ORCP 21 A(1)(h).
Barrett v. Williams, 

, 

 (2011),
rev den, 

 (2012).2 “We assume the truth of wellpleaded factual allegations, giving plaintiff the benefit of
any reasonable, favorable inferences that can be drawn from
those allegations, and assess whether those allegations, if
true, would entitle plaintiff to habeas corpus relief.” Foust,

. “A petition must state more than mere
conclusions; it must allege with particularity facts which,
if true, would entitle the plaintiff to habeas corpus relief.”
Bedell v. Schiedler, 

, 

 (1989).
         Plaintiff filed his petition for a writ of habeas corpus on July 15, 2021. In his first claim, plaintiff alleged that,
on or about April 8, 2021,3 he notified the Board of Parole
and Post-Prison Supervision (board) that he was entitled to
“30% good-time off his 30 year(s) dangerous offender sentence.” Plaintiff alleged that he was sentenced in or around
1989 to five 30-year consecutive sentences, but the board
overrode four of them and “set a prison term of 30 year(s).”
Plaintiff alleged that “an ex post facto analysis applies to

    1
      ORS 34.680(1) states, in pertinent part, “[t]he defendant may, before the
writ issues, move to deny the petition on the grounds that the petition fails to
state a claim for habeas corpus relief.”
    2
      Barrett refers to former ORCP 21 A(8), which was renumbered as ORCP 21
A(1)(h), effective January 1, 2022. The provision, before and after renumbering,
allows motions to dismiss for “failure to state ultimate facts sufficient to constitute a claim.”
    3
      In the handwritten portion of the petition, it is not clear whether plaintiff
wrote March 8, 2021, or April 8, 2021. In the opening and answering briefs, the
parties assume that plaintiff meant April 8, 2021.
110                                             Voth v. Reyes

the ‘Board’s’ decision, now, setting plaintiff’s release date
beyond the 30 year(s) minimum.” Based on good time credits, plaintiff claimed that he should have been released in
2014. Plaintiff also alleged that, on or about April 18, 2021,
he was placed in segregation, his “legal material pertaining
to the claim(s) in this writ of habeas corpus” was taken away,
and “[w]ithout said legal material plaintiff cannot exhaust
administrative remedies available to redress his claim(s)
of unlawful confinement.” In his second and third claims,
plaintiff alleged that he is “actually innocent” of his crimes
of conviction. In those claims, plaintiff also challenged the
jury’s verdict and his sentence.
         Defendant filed a response and moved to deny the
petition. Defendant argued that the first claim should be
denied because “there was available judicial review of the
Board’s decision. See ORS 34.330(4).” Defendant argued that
the second and third claims should be denied because “post-conviction relief is the exclusive means by which plaintiff
can attack his underlying criminal convictions.” Shortly
thereafter, the trial court entered a judgment denying the
petition as meritless and dismissing the case without prejudice. The trial court’s ruling was “[b]ased upon the information provided in Defendant’s Response, hereby incorporated
by reference.” Plaintiff appeals.
         “Every person imprisoned or otherwise restrained
of liberty … may prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment or restraint,
and if illegal, to be delivered therefrom.” ORS 34.310. The
petition must allege unlawful conditions of imprisonment
or “other deprivations of a prisoner’s legal rights of a kind
which, if true, would require immediate judicial scrutiny, if
it also appears to the court that no other timely remedy is
available to the prisoner.” Penrod v. Cupp, 

, 

 (1978). ORS 34.330(4) provides, in part, that persons may not prosecute a writ of habeas corpus if they are
“eligible to seek judicial review of a final order of the State
Board of Parole and Post-Prison Supervision under ORS
144.335,” but fail to do so in a timely manner. The statute
“is an apparent codification of the long-existing common-law
rule that the remedy of habeas corpus is not available to
parties who neglect to seek timely judicial review of the
Nonprecedential Memo Op: 

 (2022)                            111

challenged decision.” Alexander v. Gower, 

, 

 (2005), rev den, 

 (2006).
         Starting with plaintiff’s first claim, we conclude
that plaintiff failed to allege sufficient facts to demonstrate
entitlement to habeas corpus relief. First, it is not clear from
plaintiff’s allegations whether the board took any action
in response to his alleged notification to the board that he
was entitled to good time credits, or when the board did so.
Plaintiff appears to refer to a board decision pertaining
to his release date, but it is not clear when that occurred,
especially given his claim that he should have been released
in 2014. Without more specific allegations regarding the
board’s action, we cannot assess his claim of unlawful
imprisonment. Plaintiff failed to state a claim of entitlement
to habeas corpus relief. See Foust, 

 (affirming denial of petition on the ground that it failed to allege
sufficient facts).
         On appeal, plaintiff argues that he “alleged sufficient facts to show that he could not seek judicial review of
the Board’s order.” Plaintiff did allege that he was unable to
“exhaust administrative remedies” because he was placed
in segregation, and he was deprived of legal material pertaining to his habeas corpus claims. However, it is not clear
how long plaintiff was in segregation.4 In any event, in his
first claim, plaintiff was not challenging the conditions of
his confinement; instead, he claimed that his imprisonment
was unlawful because of a board decision pertaining to his
release date or good time credits. Without clearer allegations regarding the board’s decision, or when it occurred,
it is simply not reasonable to infer that plaintiff could not
seek judicial review of the board’s order. See Barrett, 

 (plaintiff must allege facts which, if true, would
entitle the plaintiff to habeas corpus relief).
         Plaintiff contends that he made his “initial request”
to the board on April 8, 2021, and based on the date of his
petition, which was filed on July 15, 2021, the trial court

    4
      Plaintiff alleged that he was placed in segregation on April 18, 2021, and
an exhibit attached to his petition suggests that he was still in segregation on
May 5, 2021. However, it is not clear whether he was in segregation on July 15,
2021, when he filed his petition.
112                                               Voth v. Reyes

could not have determined “whether ORS 34.330(4) even
applied to plaintiff.” That statute refers to ORS 144.335,
which provides in subsection (1)(b) that persons must
“exhaust administrative remedies” before they can seek
judicial review of a final board order. As plaintiff points out,
a request for administrative review must be made within 45
days after the mailing date on the board’s final action, OAR
255-080-0005(1), and a petition for judicial review must be
filed “within 60 days after the date the board mails the order
disposing of the person’s request for administrative review.”
ORS 144.335(4). Plaintiff contends that the trial court erred
in dismissing his petition because it “could not have known
whether plaintiff fell within the terms of the statute.”
          We are not persuaded. First, plaintiff alleged that
he notified the board that he was entitled to good time credits, and it is not clear from his allegations whether the board
took any action in response. Second, construing the allegations liberally, plaintiff appears to allege a decision by the
board regarding his release date, but we cannot tell when
that occurred. If plaintiff’s petition for a writ of habeas corpus was filed before the relevant deadlines expired, then the
trial court was justified in dismissing it without prejudice
to provide plaintiff an opportunity to seek administrative
or judicial review of the board’s order. Instead, plaintiff
appealed the dismissal of his petition.
         Third, ORS 34.330 provides a remedy for addressing claimed errors in board decisions by way of administrative and judicial review. Based on his allegations, plaintiff
was eligible to seek judicial review and there is no indication that he did so. See ORS 34.330(4). As a result, he is not
entitled to habeas corpus relief. See Strawn v. Belleque, 

, 

, rev den 

 (2008)
(affirming dismissal of habeas corpus petition because the
plaintiff had an adequate remedy in the form of judicial
review of the board’s order); Haskins v. Palmateer, 

, 163 n 2, 

, rev den, 

 (2003)
(“[T]he right to seek judicial review of the board’s action …
constitutes an adequate alternative remedy for purposes
of habeas corpus relief.”). We affirm the dismissal without
prejudice of plaintiff’s first claim in his petition for a writ of
habeas corpus.
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 (2022)            113

         We also affirm the dismissal of the second and third
claims. A petition for post-conviction relief is the exclusive
means for addressing the issues raised in those claims. ORS
138.530(1)(c) (post-conviction relief shall be granted if the
petitioner establishes that a sentence is unconstitutional);
ORS 138.540(1) (petition for post-conviction relief is the
exclusive means for challenging the lawfulness of a judgment of conviction); Atkeson v. Cupp, 

,

, rev den, 

 (1984) (affirming dismissal
of petitions for habeas corpus because the remedy for the
claims was by way of post-conviction relief).
        Affirmed.