FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS RAY MILLER, No. 07-36086
Petitioner-Appellant,
D.C. No.
v.
CV-05-00440-
OREGON BOARD OF PAROLE AND MWM
POST-PRISON SUPERVISION,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
October 6, 2010—Portland, Oregon
Filed April 25, 2011
Before: Richard A. Paez and Richard R. Clifton,
Circuit Judges, and Larry A. Burns,* District Judge.
Opinion by Judge Burns
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
5315
MILLER v. OREGON BOARD OF PAROLE 5317
COUNSEL
Anthony D. Bornstein, Office of the Federal Public Defender,
Portland, Oregon, for the petitioner-appellant.
Justice Rillera, Office of the Oregon Attorney General,
Salem, Oregon, for the defendant-appellee.
5318 MILLER v. OREGON BOARD OF PAROLE
OPINION
BURNS, District Judge:
We held in Hayward v. Marshall, 603 F.3d 546 (9th Cir.
2010) (en banc), abrogation on other grounds recognized in
Pearson v. Muntz, ___ F.3d ___ (9th Cir. 2011), that only
state law can give rise to a liberty interest in parole that is
entitled to the protections of the Due Process Clause of the
Constitution. This habeas appeal presents the question
whether an Oregon statute creates a liberty interest in early
eligibility for parole. We hold that it does. We also hold, fol-
lowing Swarthout v. Cooke, 131 S.Ct. 859 (2011), that the
Oregon Board of Parole and Post-Prison Supervision
(“Board”) did not violate Appellant’s due process rights when
it denied him that eligibility.
BACKGROUND
Douglas Miller was convicted of aggravated murder by an
Oregon jury in August 1982 for hiring another man to kill his
wife. He received an indeterminate life sentence with a 30-
year minimum term during which he is not eligible for parole.
He is still serving that minimum term.
Twenty years into his sentence Miller became eligible for
his first “murder review hearing.” This hearing, provided for
under Oregon law, permits an individual who has been con-
victed of aggravated murder the opportunity to show that he
is “likely to be rehabilitated within a reasonable period of
time.” Or. Rev. Stat. § 163.105(3) (1981). If the individual
can make that showing, his sentence is converted to life
imprisonment with the possibility of parole and he immedi-
ately becomes parole-eligible. Two sections of the murder
review statute are pertinent:
(3) At any time after 20 years from the date of impo-
sition of a minimum period of confinement [for
MILLER v. OREGON BOARD OF PAROLE 5319
soliciting murder] . . . the State Board of Parole,
upon the petition of a prisoner so confined, shall
hold a hearing to determine if the prisoner is likely
to be rehabilitated within a reasonable period of
time. The sole issue shall be whether or not the pris-
oner is likely to be rehabilitated within a reasonable
period of time . . . .
(a) The prisoner shall have the burden of proving
by a preponderance of the evidence the likelihood of
rehabilitation within a reasonable period of time; and
...
(4) If, upon hearing all the evidence, the board finds
that the prisoner is capable of rehabilitation and that
the terms of the prisoner’s confinement should be
changed to life imprisonment with the possibility of
parole, or work release, it shall enter an order to that
effect and the order shall convert the terms of the
prisoner’s confinement to life imprisonment with the
possibility of parole or work release.
Or. Rev. Stat. § 163.105(3)-(4) (1981). To be clear, these par-
ticular sections speak only to early eligibility for a parole
hearing for persons convicted of aggravated murder; they
promise nothing as far as actually being paroled after the
hearing.
Before his hearing, Miller was given advance access to
records and information, and was permitted to submit a multi-
tude of documents to the Board to demonstrate the likelihood
of his rehabilitation within a reasonable time. At the hearing,
the Board engaged Miller in an extended discussion of his
crime, and gave him a full opportunity to be heard. The Board
deliberated, and, without elaboration, denied his request for
an early parole hearing.
Miller then sought administrative review of the Board’s
decision, which under Oregon law is equivalent to a motion
5320 MILLER v. OREGON BOARD OF PAROLE
for reconsideration. On review, the Board upheld its decision,
this time offering the following written explanation:
After considering all of the evidence presented at the
hearing, the board concluded that you are not taking
responsibility for the crime in a way that would
show that you are likely to be rehabilitated within a
reasonable period of time. You arranged for your
wife to be killed so you could get the insurance
money. You also did not want to pay for the
expenses that a divorce would involve. You mini-
mized your involvement in the crime during the
hearing by denying it was your intent that the murder
be carried out. The board is to consider the totality
of the circumstances and the evidence presented at
the murder review hearing before making its deci-
sion. When all of this was taken into consideration,
the board felt that you had not satisfied your burden.
Miller appealed to the Oregon Court of Appeals, which
affirmed without issuing an opinion. Miller v. Bd. of Parole
and Post-Prison Supervision, 95 P.3d 756 (Or. Ct. App.
2004). The Oregon Supreme Court denied review. Miller v.
Bd. of Parole and Post-Prison Supervision, 108 P.3d 1173
(Or. 2005).
Miller next filed a habeas corpus petition under 28 U.S.C.
§ 2254, alleging that the Board violated his due process rights
because it lacked “some evidence” to support its finding that
he could not be rehabilitated within a reasonable period of
time. The district court disagreed and denied relief, finding
“there is certainly ‘some evidence’ supporting the Board’s
decision.” Miller v. Oregon Bd. of Parole and Post-Prison
Supervision, 2007 WL 4245912, *4 (D. Or. 2007). We have
jurisdiction pursuant to 28 U.S.C. § 1291.
In the time between the district court’s denial of Miller’s
habeas petition and our review of his appeal, the law has
MILLER v. OREGON BOARD OF PAROLE 5321
changed. We explain below the intervening changes, their
application to Miller’s habeas petition, and the reasons we
affirm the district court’s denial of relief.
DISCUSSION
We review de novo a district court’s denial of habeas relief.
Bean v. Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998).
Habeas relief is warranted when a person is in custody “in
violation of the Constitution or laws or treaties of the United
States” and the state court’s adjudication of the merits of his
or her claim “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; or . . . resulted in a decision that was based on
an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254. In the absence of a reasoned state court decision on
a prisoner’s claim, we independently review the record. See
Himes v. Thompson, 336 F.3d 848, 852-53 (9th Cir. 2003).
A. Miller’s Liberty Interest in Early Eligibility for a
Parole Hearing
[1] We first address whether Miller has a liberty interest in
becoming parole-eligible early, that is, before the expiration
of the minimum term of his sentence. The Constitution does
not, itself, guarantee a liberty interest in parole, but a state’s
substantive parole scheme may create one that is enforceable
under the Due Process Clause. See Greenholtz v. Inmates of
Neb. Penal and Corr. Complex, 442 U.S. 1, 12, 16 (1979)
(Due Process Clause applies to discretionary parole-release
determinations made by the Nebraska Board of Parole); Bd.
of Pardons v. Allen, 482 U.S. 369, 370-71 (1987) (Montana
parole scheme created a federally protected liberty interest in
parole). Our en banc court recently reiterated this principle in
Hayward: “If there is any right to release on parole, or to
release in the absence of some evidence of future dangerous-
5322 MILLER v. OREGON BOARD OF PAROLE
ness, it has to arise from substantive state law creating a right
to release.” 603 F.3d at 555.
[2] A state parole statute establishes a protected liberty
interest in parole when it uses language that creates a pre-
sumption that the prisoner will be paroled if certain conditions
are satisfied. The Nebraska parole statute in Greenholtz pro-
vided: “Whenever the Board of Parole considers the release
of a committed offender who is eligible for release on parole,
it shall order his release unless it is of the opinion that his
release should be deferred because [one of four enumerated
factors exists].” 442 U.S. at 11. The Supreme Court reasoned
that this language created an “expectancy of release” that was
“entitled to some measure of constitutional protection.” Id. at
12.
Allen involved a Montana parole statute similar to Nebras-
ka’s: “[T]he board shall release on parole . . . any person con-
fined in the Montana state prison or the women’s correction
center . . . when in its opinion there is reasonable probability
that the prisoner can be released without detriment to the pris-
oner or to the community[.]” 482 U.S. at 376. The Court held
that this statute gave rise to a protected liberty interest in
parole release because, like the Nebraska statute in Green-
holtz, it “uses mandatory language (‘shall’) to ‘creat[e] a pre-
sumption that parole release will be granted’ when the
designated findings are made.” Id. at 377-78 (quoting Green-
holtz, 442 U.S. at 12). In addition, the Court “reject[ed] the
argument that a statute that mandates release ‘unless’ certain
findings are made is different from a statute that mandates
relief ‘if,’ ‘when,’ or ‘subject to’ such findings being made.
Any such statute creates a presumption that parole release will
be granted.” Id. at 378 (quotations omitted).
In McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002), we
had to decide whether California’s parole scheme created a
liberty interest in parole, and we drew heavily on Greenholtz
and Allen. The parole statute at issue read:
MILLER v. OREGON BOARD OF PAROLE 5323
The panel or board shall set a release date unless it
determines that the gravity of the current convicted
offense or offenses, or the timing and gravity of cur-
rent or past convicted offense or offenses, is such
that consideration of the public safety requires a
more lengthy period of incarceration for this individ-
ual, and that a parole date, therefore, cannot be fixed
....
Cal. Penal Code § 3041(b). We determined that this statute
paralleled the Nebraska and Montana parole statutes at issue
in Greenholtz and Allen, respectively. We explained that the
California statute created a presumption that parole would be
granted unless “statutorily defined determinations are made,”
and we held it therefore gave rise to a liberty interest in parole
that is federally protected by the Due Process Clause. McQuil-
lion, 306 F.3d at 901. See also Pearson v. Muntz, ___ F.3d
___ (9th Cir. 2011) (observing that the Supreme Court “did
not disturb our precedent that ‘California law creates a liberty
interest in parole.’ ” (quoting Cooke, 131 S.Ct. at 861)).
Here, Oregon argues that the language of its murder review
statute distinguishes it from the statutes in Greenholtz, Allen,
and McQuillion and does not create a liberty interest in early
parole eligibility. Those statutes mandate that parole boards
“shall” parole a prisoner “unless” they have reasons not to
(Greenholtz and McQuillion) or, in the affirmative, “when”
they believe the prisoner can be trusted to be law-abiding
(Allen). By contrast, Oregon’s statute places the burden on the
prisoner to show that he or she is capable of rehabilitation. If
the prisoner does not meet this burden, the statute explains,
“the board shall deny the relief sought in the petition.” Or.
Rev. Stat. § 163.105(4) (1981). In the State’s view, placing
the burden of proof on the prisoner—along with the explicit
command to “deny the relief” if the burden is not met—
removes any presumption that a prisoner will be granted early
eligibility for a parole hearing and therefore negates any lib-
erty interest in obtaining that eligibility.
5324 MILLER v. OREGON BOARD OF PAROLE
[3] We disagree. Whatever differences exist between
requiring a parole board to provide reasons for not granting
parole and requiring the prisoner to provide reasons why he
or she should be paroled, we do not believe they control
whether the statute confers a liberty interest. The parole stat-
utes in Greenholtz, Allen, and McQuillion each provided that
a prisoner should be paroled if certain evidentiary conditions
were satisfied; similarly, the Oregon murder review statute
provides for early eligibility for a parole hearing if a prisoner
shows a likelihood of being rehabilitated within a reasonable
amount of time. We do not read Greenholtz, Allen, and
McQuillion to require that the evidentiary burden must be on
the state to show that a prisoner is not entitled to parole—
rather than on the prisoner to show that he or she is—in order
for a liberty interest in early parole eligibility to arise.
[4] We therefore conclude that the language of Oregon’s
murder review statute “creates a presumption” in favor of
early eligibility for a parole hearing “when or unless certain
designated findings are made, and thereby gives rise to a con-
stitutional liberty interest.” McQuillion, 306 F.3d at 901
(internal quotation marks omitted).
B. Miller’s Due Process Rights
We now turn to whether the Board violated Miller’s due
process rights when it found he was not likely to be rehabili-
tated within a reasonable period of time and denied him early
parole eligibility. Miller argued before the district court that
the Board’s determination violated his constitutional rights
because it was not supported by “some evidence” in the
record. The district court also relied on the “some evidence”
standard in independently scouring the record of Miller’s
murder review hearing before concluding that the Board did
not violate Miller’s rights. Miller v. Oregon Bd. of Parole and
Post-Prison Supervision, 2007 WL 4245912, *3 (D. Or.
2007).
MILLER v. OREGON BOARD OF PAROLE 5325
[5] In undertaking de novo review of the Board’s decision,
the district court acted in conformity with Ninth Circuit case
law at the time, which commanded independent examination
of the reasonableness of parole eligibility determinations on
federal habeas review. See, e.g., Irons v. Carey, 505 F.3d 846,
851 (9th Cir. 2007); Sass v. Cal. Bd. of Prison Terms, 461
F.3d 1123, 1127 (9th Cir. 2006). See also Pearson v. Muntz,
625 F.3d 539, 548 (9th Cir. 2010) (“Hayward specifically
commands federal courts to examine the reasonableness of
[the application of state law], as well as the reasonableness of
the . . . determination of the facts in light of the evidence.”).
Ninth Circuit case law on the scope of habeas review of
parole eligibility decisions has since been superseded. The
Supreme Court held in Cooke that in the context of parole eli-
gibility decisions the due process right is procedural, and
entitles a prisoner to nothing more than a fair hearing and a
statement of reasons for a parole board’s decision:
When, however, a State creates a liberty interest, the
Due Process Clause requires fair procedures for its
vindication—and federal courts will review the
application of those constitutionally required proce-
dures. In the context of parole, we have held that the
procedures required are minimal. In Greenholtz, we
found that a prisoner subject to a parole statute simi-
lar to California’s received adequate process when
he was allowed an opportunity to be heard and was
provided a statement of the reasons why parole was
denied. 442 U.S. at 16. “The Constitution,” we held,
“does not require more.” Ibid.
Cooke, 131 S.Ct. at 862.
[6] In other words, the question before the district court,
and the one we face on review of the district court’s decision,
is not whether the Board’s decision to deny Miller early eligi-
bility for parole was substantively reasonable, nor whether the
Board correctly applied Oregon’s parole standards. Instead, it
5326 MILLER v. OREGON BOARD OF PAROLE
is simply whether the state provided Miller with the minimum
procedural due process outlined in Cooke. The Supreme Court
found that the habeas petitioners in Cooke “were allowed to
speak at their parole hearings and to contest the evidence
against them, were afforded access to their records in
advance, and were notified as to the reasons why parole was
denied.” 131 S.Ct. at 862. That was sufficient, the Court held,
to satisfy the Due Process Clause.
[7] Here, as in Cooke, Miller was afforded access to his
records in advance of the hearings, and he was given the
opportunity to submit information to the Board and to make
a statement during the hearing. And, although the Board’s ini-
tial decision was not explained, Miller was eventually pro-
vided with a written statement of the reasons why he was
denied early eligibility for parole. After Cooke, that is the
beginning and the end of the inquiry into whether he received
due process, so we need look no further to affirm the district
court’s denial of Miller’s petition.
AFFIRMED.