NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 18 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
RANDY D. FISHER, No. 07-36096
Petitioner - Appellant, D.C. No. CV-05-00829-PA
v. MEMORANDUM *
OREGON BOARD OF PAROLE AND
POST-PRISON SUPERVISION and
BRIAN BELLEQUE
Respondent - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted October 6, 2010
Portland, Oregon
Before: PAEZ and CLIFTON, Circuit Judges, and BURNS, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Larry Alan Burns, United States District Judge for the
Southern District of California, sitting by designation.
Randy Fisher maintains that the Oregon Board of Parole violated his due
process rights when it refused to grant him early parole eligibility. The district
court denied habeas relief, and we affirm.
In 2001, Fisher requested a hearing with the Board to determine his
eligibility for parole. See Or. Rev. Stat. § 163.105(2). The mandatory language of
§ 163.105 provides Fisher with a constitutionally protected liberty interest in
eligibility for parole, of which he cannot be deprived without due process. Miller
v. Oregon Bd. of Parole, No. 07-36086 (9th Cir. January __, 2011) (filed
concurrently with this disposition). State law determines the quantum of evidence
required for the Board’s decision to comport with due process requirements.
Hayward v. Marshall, 603 F.3d 546, 561–62 (9th Cir. 2010) (en banc). Oregon
law provides that the Board’s decision to deny Fisher the sentence conversion must
have been supported by “substantial evidence,” meaning a reasonable person could
have reached the same decision. Or. Rev. Stat. § 183.482(8)(c). See Miller.
Fisher’s exchange with the Board during his hearing demonstrated that he
had gained little insight into why he raped and murdered someone he hardly knew.
When asked for “any evidence . . . which supports that there is a reasonable
probability that you will remain in the community without violating the law,”
Fisher replied, “I don’t want to come back here . . . It’s not a very fun place . . . I
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do not believe I will recommit any crimes.” Fisher also said he didn’t believe he
had any mental or emotional disturbances, but that he had done some reading and
learned “You can always walk away. Violence isn’t the answer.” Understandably,
these superficial statements did not inspire the Board’s confidence that Fisher was
capable of rehabilitation.
A reasonable person, considering the record and testimony before the Board,
could have found that Fisher was not likely to be rehabilitated within a reasonable
period of time. See Or. Rev. Stat. § 163.105(3). The district court properly denied
his habeas petition. We decline to address whether his claims were procedurally
defaulted. 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 623–24 (9th
Cir. 2005).
AFFIRMED.
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