FILED
NOT FOR PUBLICATION MAY 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE THOMAS HOUFF, No. 09-35853
Petitioner - Appellant, D.C. No. 1:06-cv-01328-CL
v.
MEMORANDUM*
SHARON BLACKETTER,
Superintendent, Eastern Oregon
Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted October 6, 2010
Portland, Oregon
Before: PAEZ and CLIFTON, Circuit Judges, and BURNS,** District Judge.
Petitioner Wayne Houff appeals the district court’s denial of his federal
habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291,
2253(a). We review de novo the district court’s ruling on a habeas petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Larry A. Burns, District Judge for the U.S. District
Court for Southern California, San Diego, sitting by designation.
Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). We review for clear error
the district court’s factual findings. Id.
After the district court denied Houff’s habeas petition, the Supreme Court
issued its opinion in Swarthout v. Cooke, 131 S. Ct. 859 (2011). Cooke forecloses
Houff’s due process claim. In Cooke, the Court explained that if a state parole
scheme creates a federally protected liberty interest, the Constitution “does not
require more” than a prisoner being “allowed an opportunity to be heard and []
provided a statement of the reasons why parole was denied.” Id. at 862 (quoting
Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16
(1979)).
Here, Oregon’s dangerous offender parole release statute, Or. Rev. Stat. §
144.228, creates a liberty interest in parole. See Miller v. Oregon Bd. of Parole
and Post Prison Supervision, --- F.3d --- (9th Cir. 2011), 2011 WL 1533512
(holding that Oregon’s murder review statute, Or. Rev. Stat. § 163.105(3), creates a
liberty interest in early parole eligibility). Like Oregon’s murder review statute,
Oregon’s dangerous offender parole release statute “uses language that creates a
presumption that the prisoner will be paroled if certain conditions are satisfied.”
Id. at *3. Thus, Houff has a federally protected liberty interest in parole.
Cooke instructs that if a state prisoner has a liberty interest in parole, due
process only requires that the prisoner be afforded an opportunity to be heard and
be informed of the reasons parole is denied. 131 S. Ct. at 862. This is “the
beginning and the end of the federal habeas courts’ inquiry into whether [a
prisoner] received due process.” Id. Houff had an opportunity to be heard at his
hearing before the Oregon Board of Parole and Post Prison Supervision (“Board”),
and the Board provided reasons for denying parole. Therefore, the Board did not
violate Houff’s due process rights when it denied parole. See Miller, 2011 WL
1533512 at *5 (“the question . . . we face on review . . . is not whether the Board's
decision to deny [petitioner] early eligibility for parole was substantively
reasonable, nor whether the Board correctly applied Oregon's parole standards.
Instead, it is simply whether the state provided [petitioner] with the minimum
procedural due process outlined in Cooke.”).
AFFIRMED.