Marberry v. Board of Parole , 336 Or. App. 467 ( 2024 )

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This is a nonprecedential memorandum opinion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.