FILED
NOT FOR PUBLICATION APR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
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 the Oregon Board of Parole and Post-Prison
Supervision (“the Board”) 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 early
parole eligibility, of which he cannot be deprived without due process. Miller v.
Oregon Bd. of Parole, No. 07-36086 (9th Cir. April 25, 2011) (filed concurrently
with this disposition). The Board conducted a hearing, but denied Fisher’s
application for early parole eligibility.
In Swarthout v. Cooke, 131 S.Ct. 859 (2011), the Supreme Court held that
the due process entitlements in the context of parole are “minimal”: advance access
to records; notice and opportunity to be heard; and a statement of the reasons why
parole is denied are all that are required. 562 U.S. at 4–5. Fisher concedes he was
afforded these minimum required procedural due process protections, so there is no
basis for overturning the Board’s denial.
Because Fisher is not entitled to habeas relief, 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).
2
AFFIRMED.
3