Summary
finding that "Cooke forecloses Houff s due process claim" because "Houff had an opportunity to be heard at his hearing" and "the Board provided reasons for denying parole"
Summary of this case from Houff v. LaneyOpinion
No. 09-35853.
Argued and Submitted October 6, 2010.
Filed May 18, 2011.
Tonia Louise Moro, Assistant Federal Public Defender, FPDOR — Federal Public Defender's Office, Medford, OR, for Petitioner-Appellant.
Cecil Reniche-Smith, Assistant Attorney General, AGOR — Office of the Oregon Attorney General, Harry B. Wilson, Assistant Attorney General, Oregon Department of Justice, Salem, OR, for Respondent-Appellee.
Appeal from the United States District Court for the District of Oregon, Owen M. Panner, Senior District Judge, Presiding. D.C. No. 1:06-cv-01328-CL.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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. 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 Houffs habeas petition, the Supreme Court issued its opinion in Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). Cooke forecloses Houffs 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, 131 S.Ct. 859 (quoting Greenholtz v. Inmates of Neb. Penal and, Correctional Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)).
Here, Oregon's dangerous offender parole release statute, Cir.Rev. Stat. § 144.228, creates a liberty interest in parole. See Miller v. Oregon Bd. of Parole and Post Prison Supervision, 642 F.3d 711 (9th Cir. 2011) (holding that Oregon's murder review statute, Cir.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 714. 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, 642 F.3d at 716-17 ("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.").