dissenting:
This case boils down to differing interpretations of Oregon State law. The majority interprets Oregon law to say one thing, and the Oregon Court of Appeals clearly held that it says another. Because state courts have the final word on interpreting their own state laws, except in extraordinary circumstances not present here, I respectfully dissent. See Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (“This Court ... repeatedly has held that state courts are the ultimate expositors of state law ... except in extreme circumstances.”)
The question is whether the Oregon State Board of Parole and Post-Prison Supervision could properly postpone petitioner’s parole under Oregon Revised Statutes § 144.125, as it was written in 1982, when petitioner was convicted of child molestation. If so, no ex post facto violation occurred.
As the majority correctly explains, the precise issue is whether petitioner’s 1995 psychiatric evaluation qualifies as a “psychiatric or psychological diagnosis of present severe emotional disturbance” constituting a danger to public safety. Id.; see also Christenson v. Thompson, 176 Or.App. 54, 59, 31 P.3d 449 (2001) (“Although a psychiatric or psychological diagnosis is a prerequisite to the Board’s consideration ... that diagnosis alone does not dictate the result.”) (quoting Weidner v. Armenakis, 154 Or.App. 12, 19, 959 P.2d 623 (1998)).
The Oregon Court of Appeal clearly held that petitioner’s psychiatric evaluation satisfied the diagnosis requirement of the 1982 state parole law. See Brown v. Thompson, 176 Or.App. 169, 31 P.3d 453 (2001) (citing Weidner). The majority simply disagrees.
Although I sympathize with the majority’s construction of the Oregon parole statute, “we are bound by the state’s construction [of state laws] except when it appears that its interpretation is an obvious subterfuge to evade the consideration of a federal issue.” Peltier v. Wright, 15 F.3d 860, 862 (9th Cir.1994); see also Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir.1989) (“Our deference to the [state] Court is suspended only upon a finding that the court’s interpretation [of state law] is untenable or amounts to a subterfuge to avoid federal review of a constitutional violation.”); cf. Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) (“[I]f a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, the construction must not be given retroactive effect.”).
No such subterfuge has been shown here. The Oregon court’s decision that petitioner’s psychiatric evaluation qualified as a “diagnosis” under the state parole law is certainly defensible. For the purposes of parole procedures in Oregon, a “diagnosis” is the “act of identifying a disease from its signs and symptoms.” Christenson, 176 Or.App. at 60, 31 P.3d 449. A psychological evaluation need not explicitly state that the parole candidate is suffering *1097from an emotional disturbance. Weidner 154 Or.App. at 18, 959 P.2d 623, n2. Here, petitioner was diagnosed with “long-term chronic depression.” The state court’s decision that the parole board retained its authority to deny petitioner’s release was therefore reasonable.
We must defer. I therefore dissent.