Marberry v. Board of Parole

No. 854 November 27, 2024 467

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JOSEPH LOREN MARBERRY, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent. Board of Parole and Post-Prison Supervision A180961

Submitted September 5, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for peti- tioner. Joseph L. Marberry filed the supplemental brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kyleigh Gray, Assistant Attorney General, filed the brief for respondent. Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce, Judge. EGAN, J. Affirmed.

468 Marberry v. Board of Parole

EGAN, J. Petitioner seeks review of a final order of the Board of Parole and Post-Prison Supervision (the board) revoking his post-prison supervision (PPS) and ordering him returned to prison pending a future disposition hearing. On appeal, he argues that the board improperly denied his request for board-appointed counsel. We affirm. The board alleged that petitioner had violated the conditions of his PPS. At a preliminary meeting, petitioner denied violating the terms of his PPS and indicated that he wanted a board-appointed attorney; the hearing officer declined to appoint an attorney on the grounds that peti- tioner did not make a “timely and colorable claim” that he “has not committed the alleged violation” of his supervision conditions. ORS 144.343(3)(f). After a hearing, the board found that petitioner violated the conditions of his super- vision and recommended that his supervision be revoked. Petitioner timely sought administrative review. It is undis- puted that he did not raise the denial of board-appointed counsel in that request for administrative review. ORS 144.335(1)(b) requires exhaustion of adminis- trative remedies in the context of board proceedings: It is “a general, flexible rule of administrative law that judicial review is available only after available procedures for relief within the agency have been followed and the party has raised before the agency the challenges that it intends to make on judicial review.” Tuckenberry v. Board of Parole, 365 Or 640, 652, 451 P3d 227 (2019). The court explained that the issue-exhaustion requirement included within that general rule “is a prudential doctrine that courts may relax or set aside entirely, depending on the circumstances.” Id. at 647. In Tuckenberry, the court relaxed the requirement and considered an argument that an unrepresented peti- tioner had not specifically articulated but had suggested in his request for administrative review, noting that it was a statutory issue of public interest and that, as a compan- ion case demonstrated, it would have been futile to raise it more specifically before the board. Id. at 654-55. The court concluded, “[i]n sum, given the equities and as a prudential

Nonprecedential Memo Op: 336 Or App 467 (2024) 469

matter, we may and do consider petitioner’s claims, not spe- cifically raised before the board[.]” Id. at 655. In this case, petitioner contends that we should relax or waive the exhaustion requirement and reach the merits of his challenge to the board’s denial of counsel. We decline to do so under these circumstances, where petitioner did not even nonspecifically raise that argument on admin- istrative review and raising it would not necessarily have been futile. Petitioner also raises various issues in his pro se brief. We have reviewed those claims and they provide no basis for reversal. Affirmed.