Hess v. Board of Parole ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE F. HESS, 
Petitioner-Appellant, No. 06-35963
v.
 D.C. No.
CV-05-00718-REJ
BOARD OF PAROLE AND POST-PRISON
SUPERVISION, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted
November 8, 2007—Portland, Oregon
Filed January 29, 2008
Before: Raymond C. Fisher and Marsha S. Berzon,
Circuit Judges, and Judith M. Barzilay, Judge.*
Opinion by Judge Fisher
*The Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
1457
1460 HESS v. BOARD OF PAROLE
COUNSEL
Anthony D. Bornstein, Federal Public Defender’s Office,
Portland, Oregon, for the petitioner-appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor
General, Carolyn Alexander (argued), Assistant Attorney
General, Janet A. Metcalf, Assistant Attorney General, Office
of the Oregon Attorney General, Salem, Oregon, for the
respondent-appellee.
OPINION
FISHER, Circuit Judge:
Willie Fern Hess appeals from the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition. He asserts that
Oregon Revised Statute § 144.125(3) (1991),1 which allows
the Parole Board to postpone his parole release date if it finds
he has “a psychiatric or psychological diagnosis of a present
severe emotional disturbance such as to constitute a danger to
the health or safety of the community,” is unconstitutionally
vague. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253, and we affirm.
BACKGROUND
Hess is an inmate at the Snake River Correctional Institu-
tion in Oregon, who has been incarcerated since 1984 as a
result of multiple convictions on rape, sodomy and child sex-
ual abuse charges. Hess first became eligible for parole in
May 1994. Under Oregon law, the Oregon Board of Parole
and Post-Prison Supervision (“Board”) must release a pris-
oner on his parole release date unless it finds that his parole
1
Hereinafter, all cites to § 144.125(3) are to the 1991 edition of the Ore-
gon Revised Statutes unless otherwise noted.
HESS v. BOARD OF PAROLE 1461
should be postponed for one of several statutory reasons. See
Or. Rev. Stat. § 144.245. The Board may postpone a prison-
er’s release date if the prisoner has a “psychiatric or psycho-
logical diagnosis of a present severe emotional disturbance
such as to constitute a danger to the health or safety of the
community.” § 144.125(3). Hess challenges the Board’s Sep-
tember 2003 decision to postpone his parole release date by
two years under Oregon Revised Statute § 144.125(3).
In anticipation of his 2003 parole hearing, Hess was evalu-
ated by a licensed psychologist, Dr. Frank Colistro. Dr. Col-
istro’s report indicated that Hess was “alert, fully oriented,
pleasant and cooperative, displaying no behavioral signs for
the presence of significant mental or emotional disturbance.”
However, Dr. Colistro also stated that based on the nature of
Hess’ offenses, his pattern of offending and his refusal to par-
ticipate in prison programming, “[Hess] continues to pose a
high risk for recidivating.” Dr. Colistro diagnosed Hess under
the Diagnostic and Statistical Manual of Mental Disorders
(“DSM-IV”) with Pedophilia as well as Personality Disorder
with Narcissistic and Antisocial Features. He noted that these
diagnoses “are severe ones predisposing him to the commis-
sion of crimes to a degree rendering him an ongoing threat to
the health and safety of the community” and recommended
that “the only viable protective factor relative to ensuring
community safety is containment.”
The Board then conducted a hearing, where it took testi-
mony from Hess and the mother of one of Hess’ victims.
Afterward, the Board unanimously voted to postpone Hess’
parole release date by an additional two years. The Board
acknowledged that it had received Dr. Colistro’s report and
stated that “based on the doctor’s report and diagnosis, cou-
pled with all the information that the Board is considering, the
Board concludes that the inmate suffers from a present severe
emotional disturbance that constitutes a danger to the health
or safety of the community.” Hess appealed the Board’s deci-
sion to the Administrative Review Board, which affirmed the
1462 HESS v. BOARD OF PAROLE
Board’s decision, noting that “Dr. Colistro concluded that
your Axis I [Pedophilia] and Axis II [Personality Disorder]
conditions are severe ones predisposing you to the commis-
sion of crimes rendering you an ongoing threat to the health
and safety of the community.”
Hess sought judicial review of the Board’s decision in the
Oregon Court of Appeals by filing a motion for leave to pro-
ceed with judicial review under Oregon Revised Statute
§ 144.335 (2002). The court of appeals dismissed Hess’
motion for failing to present a substantial question of law.
Under Oregon law, such a dismissal constitutes an adverse
decision on the merits of Hess’ petition. See Or. Rev. Stat.
§ 144.335(6) (2002). Hess appealed to the Oregon Supreme
Court, which also denied review without comment. Hess then
filed this federal petition for habeas corpus under 28 U.S.C.
§ 2254. Because Hess is challenging an administrative deci-
sion to postpone his parole and not his underlying state court
conviction, he did not need to obtain a certificate of appeala-
bility under 28 U.S.C. § 2253(c)(1)(A). See Rosas v. Nielsen,
428 F.3d 1229, 1231-32 (9th Cir. 2005) (per curiam).
A district court’s denial of a habeas corpus petition is
reviewed de novo. See Leavitt v. Arave, 371 F.3d 663, 668
(9th Cir. 2004) (per curiam). Because Hess’ petition was filed
after April 24, 1996, the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) applies. See Lindh v. Murphy, 521
U.S. 320, 327 (1997). Under AEDPA, a federal court is per-
mitted to grant habeas relief only if the state court adjudica-
tion “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). To prevail, the petitioner
must demonstrate “that the state court’s application of
Supreme Court precedent to the facts of his case was not only
incorrect but ‘objectively unreasonable.’ ” Davis v. Woodford,
384 F.3d 628, 637-38 (9th Cir. 2004) (quoting Woodford v.
Viscotti, 537 U.S. 19, 25 (2002)). Where, as here, the state
HESS v. BOARD OF PAROLE 1463
court reaches the merits without providing a reasoned deci-
sion for us to review, however, “we independently review the
record to determine whether the state court clearly erred in its
application of Supreme Court law.” Brazzel v. Washington,
491 F.3d 976, 981 (9th Cir. 2007) (internal quotation marks
omitted).
ANALYSIS
As a basic principle of due process under the Fifth Amend-
ment, a state law must establish adequate guidelines to govern
the exercise of discretion by state officials so that the law nei-
ther “authorizes [n]or even encourages arbitrary and discrimi-
natory enforcement.” Hill v. Colorado, 530 U.S. 703, 732
(2000). The Supreme Court has therefore long recognized that
the Due Process Clause contains a substantive component that
“bars certain arbitrary, wrongful government actions ‘regard-
less of the fairness of the procedures used to implement
them.’ ” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quot-
ing Daniels v. Williams, 474 U.S. 327, 331 (1986)). Accord-
ingly, although Hess does not assert any procedural
deficiencies in his parole hearing, he argues that the Board’s
decision runs afoul of the Due Process Clause because the
Oregon statute under which his parole was postponed is
impermissibly vague. We disagree, and so we affirm.2
[1] “[A] party challenging the facial validity of [a law] on
vagueness grounds outside the domain of the First Amend-
ment must demonstrate that the enactment is impermissibly
vague in all of its applications.” Hotel & Motel Ass’n of Oak-
land v. City of Oakland, 344 F.3d 959, 972 (9th Cir. 2003)
(internal quotation marks omitted). It therefore follows that
“if the statute is constitutional as applied to the individual
asserting the challenge, the statute is facially valid.” United
2
Because we deny Hess’ habeas corpus petition on the merits, we need
not reach the question of whether he properly exhausted his claim before
the state courts. See 28 U.S.C. § 2254(b)(2).
1464 HESS v. BOARD OF PAROLE
States v. Dang, 488 F.3d 1135, 1141 (9th Cir. 2007). Accord-
ingly, mere “speculation about possible vagueness in hypo-
thetical situations not before the [c]ourt” will not support a
facial attack on a statute that is “valid ‘in the vast majority of
its intended applications.’ ” Hill, 530 U.S. at 733 (quoting
United States v. Raines, 362 U.S. 17, 23 (1960)); see also
Laurence H. Tribe, American Constitutional Law § 12-32 (2d
ed. 1988) (“Where the vice is vagueness . . . the statute in
question is vague either in all possible applications or at least
as applied to the litigant’s conduct, and not simply as applied
to some others.”). To succeed in voiding section 144.125(3)
for vagueness, Hess must therefore show that the statute is
vague in all its applications or at the least as applied to him-
self.
[2] The statute Hess challenges provides the Board with
authority to postpone a prisoner’s release date, thereby length-
ening the time he spends in prison. It does not, however,
impose a criminal penalty for past behavior. Rather, it guides
the exercise of an administrative decision, albeit one in which
Hess has a protected liberty interest. See Or. Rev. Stat.
§ 144.245 (1999) (stating that the prisoner “shall be released”
on his parole date); Biggs v. Terhune, 334 F.3d 910, 914 (9th
Cir. 2003) (noting that prisoners have a protected liberty inter-
est in a parole decision when the statute states that the pris-
oner “shall” be released “unless” certain conditions are met).
The Due Process Clause does not require the same precision
in the drafting of parole release statutes as is required in the
drafting of penal laws. See Glauner v. Miller, 184 F.3d 1053,
1055 (9th Cir. 1999); see also Village of Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 498 (1982) (noting
the “degree of vagueness that the Constitution tolerates . . .
depends in part on the nature of the enactment”). Accord-
ingly, we have “greater tolerance of enactments with civil
rather than criminal penalties because the consequences of
imprecision are qualitatively less severe.” Hoffman Estates,
455 U.S. at 498-99.
HESS v. BOARD OF PAROLE 1465
[3] Neither this court nor the Supreme Court has identified
the level of specificity required for a parole release statute to
avoid impermissible vagueness. We believe, however, that
our jurisprudence concerning vagueness challenges to sen-
tencing statutes is informative here. Like parole release stat-
utes, sentencing statutes guide decisions about how to impose
punishments; they do not themselves define and penalize
crimes. When faced with vagueness challenges to statutes that
govern the imposition of the death penalty, the Supreme Court
has upheld the statutes so long as they permitted a “principled
distinction between those who deserve the death penalty and
those who do not,” and directed the exercise of discretion in
such a way as to “minimize the risk of wholly arbitrary and
capricious action.” Lewis v. Jeffers, 497 U.S. 764, 774-76
(1990) (internal quotation marks omitted).
[4] The consequences of imprecision are clearly less severe
here than they are for statutes that govern imposition of the
death penalty. Even assuming, however, that parole release
statutes must meet vagueness standards similar to those appli-
cable to death penalty statutes, section 144.125(3) is not
unconstitutionally vague. To postpone a prisoner’s parole
under section 144.125(3), the Board must find that the pris-
oner has a “psychiatric or psychological diagnosis of a present
severe emotional disturbance such as to constitute a danger to
the health or safety of the community.” By the plain terms of
the statute, then, the Board may not postpone the prisoner’s
parole merely by making a finding that he suffers from any
psychiatric or psychological diagnosis. Rather, it must deter-
mine that such diagnosis constitutes an “emotional distur-
bance” that is both “present” and “severe.” Id. Further, the
Board must also conclude that this present severe emotional
disturbance “constitute[s] a danger to the health or safety of
the community.” Id. The language of the statute thus allows
the Board to make a “principled distinction” between those
whose parole should be postponed and those whose parole
should not. Lewis, 497 U.S. at 776.
1466 HESS v. BOARD OF PAROLE
[5] Further, exactness can be achieved not just on the face
of the statute, but also through limiting constructions given to
the statute by the state court or enforcement agency. See Ceja
v. Stewart, 97 F.3d 1246, 1249 (9th Cir. 1996) (holding that
even a facially vague statute is not constitutionally deficient
if the state courts have given it “[a] narrowing construction”
that satisfies vagueness concerns); see also Hoffman Estates,
455 U.S. at 495 n.5. Although section 144.125(3) places the
ultimate parole determination in the hands of the Board, the
Oregon Court of Appeals has held that a “psychiatric or psy-
chological diagnosis is a prerequisite to the Board’s consider-
ation of whether the statutory criteria have been met.”
Christenson v. Thompson, 31 P.3d 449, 451 (Or. Ct. App.
2001) (internal quotation marks omitted). Further, the court of
appeals has held that the Board cannot make a finding of a
present severe emotional disturbance if the psychiatrist’s
diagnosis merely opines that the prisoner suffers from the “re-
siduals” of a previous condition, see id. at 452, or if it indi-
cates only that the prisoner has “ ‘some elements’ of a
personality disorder,” Newcomb v. Thompson, 33 P.3d 319,
320 (Or. Ct. App. 2001) (per curiam). Particularly given these
narrowing constructions by the state court, the statute is not
facially vague in all of its applications.3
[6] Lastly, we note that the statute is not unconstitutionally
vague as applied to Hess. Although Dr. Colistro stated that
3
The state suggested at oral argument that the existence of a psychiatric
or psychological diagnosis is the only limitation on the parole board’s dis-
cretion. Were that the case, the statute might fail to cabin sufficiently the
board’s discretion. Such potential diagnoses are so numerous and diverse
that nearly every individual could be diagnosed with some malady, from
insomnia to stuttering to nicotine dependence. See Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th
ed. 2000). As our discussion of the statutory language makes clear, how-
ever, the existence of such a diagnosis is but one limitation on the board’s
discretion; the board must also find that the diagnosis constitutes an “emo-
tional disturbance,” that it is “present,” “severe,” and that the disturbance
makes the applicant a danger to the health or safety of the community.
HESS v. BOARD OF PAROLE 1467
Hess did not outwardly display “behavioral signs for the pres-
ence of significant mental or emotional disturbance,” (empha-
sis added), he ultimately diagnosed Hess under the DSM-IV
with Pedophilia, an Axis I disorder, and with Personality Dis-
order with Narcissistic and Antisocial Features, an Axis II dis-
order. He noted that these diagnoses “are severe ones
predisposing him to the commission of crimes to a degree ren-
dering him an ongoing threat to the health and safety of the
community” (emphasis added). The doctor’s diagnoses, com-
bined with the Board’s own analysis of the testimony pres-
ented at Hess’ parole hearing and in his personal records,
provided a sufficient basis for the Board to conclude that Hess
exhibited a present severe emotional disturbance such as to
constitute a danger to the health or safety of the community.
Because the Board’s finding was based on two psychological
diagnoses, both of which the psychiatrist concluded were “se-
vere” and would predispose Hess to recidivism for his danger-
ous crimes, the statute was not vague as applied to Hess.
CONCLUSION
Because Oregon Revised Statute § 144.125(3) is neither
facially vague nor vague as applied to Hess, the decision of
the district court is AFFIRMED.