No. 51 October 5, 2017 15

IN THE SUPREME COURT OF THE

STATE OF OREGON

MICHAEL R. HAYNES,

Petitioner on Review,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent on Review.

(CA A162586, SC S064442)

On review from the Court of Appeals.*

Argued and submitted May 12, 2017.

Marc D. Brown, Chief Deputy Defender, Salem, argued 

the cause and filed the briefs for the petitioner on review. 

Also on the briefs was Ernest G. Lannet, Chief Defender, 

Office of Public Defense Services.

Ryan Kahn, Assistant Attorney General, Salem, argued 

the cause and filed the brief for the respondent on review. 

Also on the brief were Ellen F. Rosenblum, Attorney General 

and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Landau,

Nakamoto, Flynn, and Duncan, Justices.**

FLYNN, J.

The order of dismissal of the Court of Appeals is affirmed.

______________

** On judicial review of a Final Order of the Board of Parole and Post-Prison 

Supervision, dated May 4, 2016.

** Brewer, J., retired June 30, 2017, and did not participate in the decision of 

this case.
16 Haynes v. Board of Parole

Case Summary: ORS 163.105 provides that a person convicted of aggravated 

murder and sentenced to life imprisonment without the possibility of parole may 

seek a determination by the Board of Parole and Post-Prison Supervision, after 

serving a minimum term, that he or she should have the terms of their confinement modified to allow for the possibility of parole. Petitioner sought such a determination from the board, but the board denied his request. Petitioner wished 

to seek judicial review of the board’s decision, as provided in ORS 144.335, but 

his court-appointed lawyer did not file his petition for review within the timeline provided in that statute, and the Court of Appeals dismissed the petition. 

Petitioner sought review of the dismissal in the Supreme Court, arguing that 

the lawyer’s failure to file a timely petition constituted a violation of his right to 

adequate counsel in the judicial review, the existence of which right he inferred 

from the fact that he was statutorily entitled to the assistance of counsel in the 

review proceeding. Citing State ex rel Juv. Dept v. Geist, 310 Or 176, 796 P2d 1193 

(1990), and the Due Process Clause of the Fourteenth Amendment to the United 

States Constitution, petitioner argued that the appropriate and required remedy 

for that violation was reversal of the dismissal and allowance of a late judicial 

review process. Held: Assuming that petitioner has a statutory right to adequate 

counsel on review, the remedy he seeks – excusing the jurisdictional requirement 

of a timely petition for review – is not an appropriate remedy under state law, 

given the strict filing deadline that the legislature has set; neither does the Due 

Process Clause dictate a different result given the source of petitioner’s right to 

counsel and the nature of the judicial review proceeding at issue.

The order of dismissal of the Court of Appeals is affirmed.
Cite as 362 Or 15 (2017) 17

FLYNN, J.

Petitioner seeks judicial review of a final order of 

the Board of Parole and Post-Prison Supervision that denied 

his petition to change the terms of his life imprisonment 

to allow for the possibility of release. The Court of Appeals 

dismissed the case because petitioner’s appointed counsel 

missed the deadline for filing a petition for judicial review 

in that court. We allowed review to consider whether petitioner, who is statutorily entitled to be assisted by counsel 

on review, should or must be allowed to proceed with his 

untimely petition for review when the late filing was entirely 

due to neglect by appointed counsel.

Petitioner argues that his statutory right to counsel 

must be construed as a right to adequate counsel, that he 

was denied that statutory right when his counsel missed the 

filing deadline for judicial review, and that this court should 

address the statutory violation by excusing the untimely filing. Petitioner also contends that a denial of judicial review 

under these circumstances violates his right to due process 

under the Fourteenth Amendment of the United States 

Constitution and that this court must allow a delayed appeal 

to vindicate petitioner’s due process rights.

We conclude that petitioner is not entitled to the 

relief that he seeks. Jurisdiction for judicial review of a 

board order is a creation of statute, ORS 144.335, and that 

jurisdiction depends upon filing a petition for review within 

the time period provided in the statute. Even if petitioner is 

correct that he has a statutory right to adequate counsel on 

review which has been denied because of appellate counsel’s 

late filing, he is not correct that the appropriate remedy is 

to excuse the jurisdictional requirement of a timely petition. 

We also conclude that the federal constitution does not dictate a different result, because the nature of the administrative judicial review process is such that state law is the only 

source of both petitioner’s right to judicial review and his 

right to the assistance of counsel on review.

I. FACTS AND PROCEDURAL BACKGROUND

Petitioner is serving a sentence of life imprisonment 

without possibility of parole or release for a 1986 aggravated 
18 Haynes v. Board of Parole

murder. At petitioner’s request, the board held a hearing to 

determine if petitioner “is likely to be rehabilitated within 

a reasonable period of time” and, if so, to change the terms 

of his confinement to “life imprisonment with the possibility of parole, or work release.” See ORS 163.105 (1985).1

 The 

board found that petitioner failed to prove that he is likely to 

be rehabilitated within a reasonable time, petitioner sought 

administrative review, and the board issued a final order 

adhering to its decision.

Upon learning that the board had issued its final 

order, petitioner contacted the Office of Public Defense 

Services (OPDS) to pursue judicial review on his behalf.2

Although OPDS assured petitioner that it would file a 

petition for review, due to a calendaring error, the lawyer 

assigned to petitioner’s case filed the petition six days after 

the statutory deadline. The Court of Appeals, on its own 

motion, dismissed review based on the untimely filing.

Petitioner filed a motion for reconsideration in which 

he argued that the untimely filing should be excused, given 

that it was entirely the fault of appointed counsel. The Court of 

Appeals denied reconsideration, and this court allowed review.

II. DISCUSSION

Petitioner’s arguments rest on the initial premise 

that his statutory right to the assistance of counsel to pursue judicial review of the board’s order is a right to adequate 

assistance of counsel. To vindicate that right, petitioner 

argues, the court should allow additional time to file a petition for review when appointed counsel fails to timely file a 

petition. According to petitioner, the court has authorized 

similar relief to address inadequate representation in other 

1 ORS 163.105 describes the process by which certain defendants who have 

served a minimum period of confinement for aggravated murder may be determined to be eligible to have the terms of their confinement changed from life 

imprisonment without the possibility of parole to life imprisonment with the 

possibility of parole. Throughout the opinion, we rely on ORS 163.105 (1985), 

the version of the statute in effect at the time petitioner committed his crime. 

See Janowski/Fleming v. Board of Parole, 349 Or 432, 437, 245 P3d 1270 (2010) 

(looking to version of ORS 163.105 in effect at the time of the prisoners’ crimes to 

determine rights related to parole eligibility).

2 The legislature has specified that the Public Defense Services Commission, 

which governs OPDS, “shall provide for the representation of financially eligible persons petitioning for review” of board orders of the type at issue here. ORS 144.337(1).
Cite as 362 Or 15 (2017) 19

contexts and should do so in the “murder-review” context 

as well.3

 Petitioner also argues that he is entitled to that 

remedy as a matter of the due process guaranteed by the 

Fourteenth Amendment to the United States Constitution.4

A. The Murder Review Statutory Framework

As context for petitioner’s arguments, we begin 

with a brief overview of the murder-review process. At the 

time petitioner committed his crime, ORS 163.105(1) (1985) 

provided that a person convicted of aggravated murder, if 

not sentenced to death, shall be sentenced to “life imprisonment” and ordered “confined for a minimum of 30 years 

without the possibility of parole, release on work release or 

any form of temporary leave or employment at a forest or 

work camp.” After 20 years, however, the prisoner becomes 

eligible for a “murder-review” hearing, at which the board 

considers whether to change the terms of the prisoner’s confinement to “life imprisonment with the possibility of parole 

or work release.” ORS 163.105(2), (3) (1985).5

3 Both parties refer to hearings pursuant to ORS 163.105 as “murder review” 

hearings, and we adopt that terminology for this opinion.

4 Petitioner’s constitutional argument relies on the Due Process Clause of 

the Fourteenth Amendment. Neither the Sixth Amendment to the United States 

Constitution nor Article I, section 11, of the Oregon Constitution guarantees 

a right to counsel outside of criminal prosecutions, and we have held that the 

Oregon Constitution contains no due process clause. See State ex rel Juv. Dept. v. 

Geist, 310 Or 176, 188 n 13, 796 P2d 1193 (1990).

5 ORS 163.105 (1985) provided, in relevant part:

“(1) *** If sentenced to life imprisonment, the court shall order that the 

defendant shall be confined for a minimum of 30 years without possibility of 

parole, release on work release or any form of temporary leave or employment 

at a forest or work camp.

“(2) At any time after 20 years from the date of imposition of a minimum period of confinement pursuant to subsection (1) of this section, 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 prisoner 

is likely to be rehabilitated within a reasonable period of time.

“*****

“(3) If, upon hearing all of the evidence, the board, upon a unanimous 

vote of all five members, 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. 

Otherwise the board shall deny the relief sought in the petition.”
20 Haynes v. Board of Parole

If, after such hearing, the board denies a prisoner’s 

petition to change the terms of confinement, the prisoner 

has a right to seek judicial review of the board’s order. ORS 

144.335(1). One of the conditions for seeking judicial review 

is that the petition for review of the board’s order “shall” 

be filed “within 60 days after the date the board mails the 

order.” ORS 144.335(4). Finally, and at the core of petitioner’s 

argument, “the Public Defense Services Commission shall 

provide for the representation of financially eligible persons 

petitioning for review” of the board’s order. ORS 144.337(1).

B. The Nature of the Right to Counsel on Review

According to petitioner, that statutory right to representation by counsel “implicitly requires * ** the provision 

of adequate counsel.” (Emphasis in original.) For that premise, petitioner relies primarily on State ex rel Juv. Dept. v. 

Geist, 310 Or 176, 796 P2d 1193 (1990), in which we held 

that the statutory right to counsel applicable in a termination of parental rights case is a right to “adequate” counsel. 

In Geist, the mother whose parental rights were at stake 

was provided counsel under a statute that guaranteed indigent parents in termination cases a right to “an attorney 

to represent them at state expense.” Id. at 180 n 3. The 

court-appointed lawyer who represented the mother at the 

termination hearing had been recently removed from a list 

of lawyers who were qualified to represent clients in such 

proceedings, and the lawyer moved to withdraw. The court 

denied the lawyer’s motion to withdraw and ultimately terminated the mother’s parental rights.

On appeal, the mother challenged the termination 

judgment on the ground that she had been denied adequate 

representation of counsel. The Court of Appeals “assumed 

that the legislature intended a statutory right to counsel to 

include a right to adequate counsel,” and this court expressly 

agreed with that premise. Id. at 185. We also concluded 

that, “[a]bsent an express legislative procedure for vindicating the statutory right to adequate counsel, this court may 

fashion an appropriate procedure.” Id.

Generalizing from the holding in Geist, petitioner 

argues that any statute that grants a right to state-provided 

counsel implicitly grants a right to adequate counsel, because 
Cite as 362 Or 15 (2017) 21

granting a right to counsel would be a pointless legislative 

exercise if the right could be satisfied by counsel who is not 

adequate to fill that role. As intuitively sound as that proposition may seem in the abstract, however, our more recent decision in Dept. of Human Services v. T. L., 358 Or 679, 687-693, 

369 P3d 1159 (2016), suggests that we will not simply assume 

that every statutory right to counsel necessarily grants a 

right to adequate counsel. In T. L., although the parties and 

the Court of Appeals had accepted that the rationale of Geist

extends to counsel appointed to represent parents in dependency proceedings other than termination, we undertook to 

“independently address” that proposition. Id. at 687. In doing 

so, we focused on factors that the court uses to determine 

whether the “nature of particular juvenile proceedings and 

due process require the appointment of counsel.” Id. at 691-

93. Considering those factors in the particular context of a 

proceeding to change a child’s permanency plan away from 

reunification with the parents, we concluded, based on “the 

complex nature of the legal and factual issues, and the gravity of the interests at stake,” that appointed counsel in such 

proceedings “must be adequate.” Id. at 693.

Moreover, as Geist illustrates, even when the court 

accepts the proposition that the legislature granted a right to 

adequate counsel, the more pertinent inquiry is “what standard of adequacy” should apply. 310 Or at 187. In Geist, the 

court rejected the mother’s argument that the court should 

evaluate her attorney’s performance under the standard of 

adequate representation that the court employs in criminal 

cases to protect a criminal defendant’s constitutional right 

to counsel. Id. Instead, the court concluded that the flexible 

standard of “fundamental fairness” is the proper standard 

for deciding whether parents have received adequate representation in a termination case.6 Id. at 188-90. Under that 

standard, this court determined, the mother received adequate assistance of counsel in the termination proceeding. 

Id. at 194.

6 Geist emphasizes that, in general, “fundamental fairness requires that 

appointed counsel exercise professional skill and judgment,” but that “the search 

for a single, succinctly-stated standard of performance, objectively applicable to 

every case, is ‘a fool’s errand.’” 310 Or at 190 (quoting Krummacher v. Gierloff,

290 Or 867, 874, 627 P2d 458 (1981)).
22 Haynes v. Board of Parole

Petitioner does not meaningfully analyze whether 

and to what extent ORS 144.337(1) grants a right to adequate counsel to assist with the judicial review of petitioner’s 

parole board order, and ultimately we need not decide those 

questions in this case. That is so because, even if counsel’s 

failure to timely file the petition for review denied petitioner the right to counsel granted by ORS 144.337(1), as 

discussed below, that denial does not justify the remedy of a 

late review process—the only remedy that petitioner seeks.

C. The Remedy of a Late Review Process

As indicated above, petitioner contends that this 

court should reverse the dismissal of his petition for review 

as the remedy for his attorney’s failure to provide adequate 

representation on review. He argues that this remedy follows from existing state-law principles and, alternatively, 

that the remedy is required as a matter of due process under 

the Fourteenth Amendment. As is our custom, we consider 

petitioner’s subconstitutional arguments before considering 

his constitutional (due process) arguments. See, e.g., State 

v. Barrett, 350 Or 390, 398, 255 P3d 472 (2011) (describing 

court’s usual practice).

1. Late review as a remedy under Oregon law

For his argument that this court can and should 

authorize a late petition for review when a prisoner’s counsel 

fails to file a timely petition for review, petitioner again relies 

primarily on Geist—specifically on the court’s conclusion 

that “[a]bsent an express legislative procedure for vindicating the statutory right to adequate counsel, this court may 

fashion an appropriate procedure.” 310 Or at 185. Petitioner 

argues that Geist requires the court to fashion an “appropriate procedure” to vindicate the assumed violation of his 

right to counsel under ORS 144.337(1). Petitioner contends 

that here, where counsel’s inadequacy deprives petitioner of 

any opportunity to obtain judicial review of the board’s final 

order, a delayed judicial review is an “appropriate remedy” 

because it is the sole remedy that can vindicate his right.

We conclude that allowing an untimely petition for 

review is not an appropriate remedy for counsel’s failure to 

file a petition for judicial review within the time limit set by 
Cite as 362 Or 15 (2017) 23

the legislature. The judicial review process that petitioner 

seeks exists because the legislature conferred jurisdiction on 

the Court of Appeals to review the administrative decisions 

of the board. We have repeatedly held that when the legislature confers jurisdiction on the courts to review an agency’s 

final order, the courts’ jurisdiction depends upon the timely 

filing of a petition for review. See, e.g., Ososke v. DMV, 320 

Or 657, 661, 891 P2d 633 (1995) (“[T]he untimely filing of a 

petition for judicial review of a final order of DMV is a jurisdictional defect.”); 1000 Friends of Oregon v. LCDC (Clatsop 

Co.), 301 Or 622, 632, 724 P2d 805 (1986) (“The Court of 

Appeals’ jurisdiction to review LCDC orders is purely statutory and depends for its existence on the timely filing of a 

request for review from a final order.”); cf. State v. Harding,

347 Or 368, 373, 223 P3d 1029 (2009) (“Because defendant’s 

notice of appeal was not timely filed, neither the Court of 

Appeals nor this court has jurisdiction over the trial court 

judgment challenged by defendant in this case.”).

To be sure, the legislature can and does create 

exceptions to the timelines that it sets for obtaining judicial 

review. See, e.g., ORS 138.071(5) (permitting defendant in 

criminal case to file late direct appeal if he or she shows a 

colorable claim of error and “that the failure to file a timely 

notice of appeal is not attributable to the defendant personally”); ORS 138.650(2)(a) (same, for review of post-conviction 

claims). But there are no statutory exceptions to the jurisdictional time limit in ORS 144.335(4), which requires 

that, if a person “seeks judicial review of a final order of the 

board, the person shall file a petition for judicial review with 

the Court of Appeals within 60 days[.]” The statute does not 

provide, for example, that the person shall file the petition 

for review within 60 days “except for good cause” or “unless 

the person was denied the assistance of counsel,” and we 

decline to construe the separate grant of a right to counsel 

in ORS 144.337(1) as implicitly creating an exception to the 

jurisdictional time limits.

Nevertheless, petitioner argues that Geist offers a 

path around that statutory jurisdictional obstacle. Although 

he recognizes that Geist did not authorize jurisdiction over 

an untimely appeal, petitioner urges us to understand Geist’s
24 Haynes v. Board of Parole

holding—that the court “may fashion an appropriate 

procedure” to vindicate a statutory right to adequate

counsel—as rooted in principles of equity that apply here as 

well. Petitioner observes that Geist, in a footnote following 

the quoted holding, cites to cases arising in equity. See Geist, 

310 Or at 185 n 11 (citing Stan Wiley v. Berg, 282 Or 9, 21-23, 

578 P2d 384 (1978), and Day v. Griffith, 283 Or 393, 403, 

584 P2d 261 (1978)). According to petitioner, the balance of 

equities here clearly favors excusing his untimely filing, so 

this court should allow a late filing as a matter of equity. 

However, petitioner identifies no authority for his proposition that equitable principles make it appropriate for this 

court to override time limits on statutory appellate jurisdiction, and we are aware of none.7

 Given the strict time limits 

that the legislature has imposed when creating jurisdiction 

for judicial review of board orders, allowing a late review is 

not an “appropriate procedure” to vindicate petitioner’s statutory right to counsel.

Petitioner next argues that the murder-review process is similar enough to a criminal proceeding that we 

should provide the same remedy for his counsel’s failure to 

file a timely petition for review as we have approved for the 

failure of a criminal defendant’s counsel to file a timely direct 

appeal of the criminal conviction. He relies on Shipman 

v. Gladden, 253 Or 192, 453 P2d 921 (1969), in which the 

petitioner sought post-conviction relief after his criminal 

defense counsel failed to file a timely direct appeal from the 

petitioner’s criminal conviction, and this court approved 

the remedy of a delayed appeal. Petitioner is correct that 

7 Petitioner recommends the doctrine of equitable tolling as roughly apropos, 

relying on the Supreme Court’s description of that doctrine in Lozano v. Montoya 

Alvarez, ___ US ___, 134 S Ct 1224, 1231-32, 188 L Ed 2d 200 (2014): “[E]quitable 

tolling pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has 

pursued his rights diligently but some extraordinary circumstance prevents him 

from bringing a timely action.” The Supreme Court has emphasized, however, 

that the doctrine is not used to avoid time bars that are jurisdictional. See United 

States v. Kwai Fun Wong, ___ US ___, 135 S Ct 1625, 1631, 191 L Ed 2d 533 (2015) 

(explaining that doctrine of equitable tolling can pause the running of a statute 

of limitations in actions between private parties and suits against the United 

States under a statute waiving sovereign immunity, unless Congress “made the 

time bar at issue jurisdictional”); Bowles v. Russell, 551 US 205, 214, 127 S Ct 

2360, 168 L Ed 2d 96 (2007) (explaining that “timely filing of a notice of appeal in 

a civil case is a jurisdictional requirement” and that “Court has no authority to 

create equitable exceptions to jurisdictional requirements”). 
Cite as 362 Or 15 (2017) 25

Shipman illustrates an exception to the rule that the court 

will not consider appeals filed outside of the timelines set by 

the legislature. However, the exception is entirely a product 

of the context in which Shipman arose.

First, the Shipman court concluded that criminal 

defendants have a right under the Fourteenth Amendment 

to the effective assistance of counsel in an appeal as of right 

from a criminal conviction. 253 Or at 198-99 (citing Anders 

v. California, 386 US 738, 87 S Ct 1396, 18 L Ed 2d 493 

(1967); Douglas v. California, 372 US 353, 83 S Ct 814, 9 L Ed

2d 811 (1963); Griffin v. Illinois, 351 US 12, 76 S Ct 585, 100 

L Ed 891 (1956)); see also Evitts v. Lucey, 469 US 387, 396, 

105 S Ct 830, 83 L Ed 2d 821 (1985) (confirming, 16 years

after Shipman, that a criminal defendant’s appeal as of 

right from the conviction “is not adjudicated in accord 

with due process of law if the appellant does not have the 

effective assistance of an attorney”).8

 Thus, as we held in 

Shipman, when the state denied the petitioner direct appellate review of his criminal conviction due to the “culpable 

neglect of counsel,” he was deprived of a right guaranteed by 

the Fourteenth Amendment, and the state was required to 

“provide a remedy adequate to restore the impaired right.” 

253 Or at 203.

Second, the court in Shipman explained that the 

relief the petitioner sought was available as a matter of 

Oregon law under the Post-Conviction Hearing Act, which 

directs the court to grant relief for a denial of a criminal 

defendant’s constitutional rights in either the trial or the 

appellate courts. Id. (citing ORS 138.530). The court emphasized that the act specifically “provides that the relief which 

a court may grant includes ‘*** such other relief as may be 

proper and just’” and concluded that the legislature intended 

“such other relief” to include the remedy of a delayed appeal. 

Id. at 204 (quoting ORS 138.520).

8 The earlier right-to-counsel cases, on which Shipman relied, tended to 

derive support from both the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment. Evitts, 469 US at 403 (quoting Bearden v. Georgia, 461 

US 660, 665, 103 S Ct 2064, 76 L Ed 2d 221 (1983), for the proposition: “Due 

process and equal protection principles converge in the Court’s analysis in these 

cases.”). Evitts, however, announced a right to effective assistance of counsel 

derived entirely from the Due Process Clause.
26 Haynes v. Board of Parole

The relief afforded to the petitioner in Shipman 

thus was rooted in two sources of authority that do not exist 

here: the due process right to effective assistance of counsel in appeals as of right from a criminal conviction and an 

express statutory directive that the court provide relief to 

vindicate that constitutional right. Here, no statute provides, or directs the court to provide, relief from the jurisdictional requirement that petitioner file a timely petition 

for judicial review of a parole board order. Moreover, as we 

will explain below, petitioner has no constitutional right to 

judicial review of the board’s decision or to the assistance of 

counsel in challenging that decision. Thus, Shipman does 

not alter our conclusion that allowing review to proceed 

outside of the jurisdictional time limit is not an “appropriate procedure” to vindicate petitioner’s statutory right to 

counsel.

2. Late review as a remedy required by the Due Process 

Clause

Petitioner also contends that this court must make 

an exception to the 60-day jurisdictional deadline in order 

to prevent a violation of petitioner’s right to due process. 

According to petitioner, because the Oregon legislature has 

granted a right to judicial review of the board’s order, petitioner has a due process right to that judicial review that 

cannot be denied on the basis of “a calendaring error on the 

part of his appellate counsel, a state actor.” We disagree.

The Due Process Clause of the Fourteenth Amendment guarantees that no state shall “deprive any person of 

life, liberty, or property, without due process of law.” Thus, 

in evaluating a claimed due process violation, the threshold inquiry “is whether the state has deprived a person of a 

liberty or property interest within the meaning of the Due 

Process Clause.” Stogsdill v. Board of Parole, 342 Or 332, 

336, 154 P3d 91 (2007) (citing Wilkinson v. Austin, 545 US 

209, 224, 125 S Ct 2384, 162 L Ed 2d 174 (2005)); see also 

Greenholtz v. Nebraska Penal Inmates, 442 US 1, 7, 99 S Ct 

2100, 60 L Ed 2d 668 (1979) (looking to the nature of the 

claimed interest to determine if the Due Process Clause 

applies). If “there exists a liberty or property interest of 

which a person has been deprived,” the second inquiry is 
Cite as 362 Or 15 (2017) 27

“whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 US 216, 219, 

131 S Ct 859, 178 L Ed 2d 732 (2011).

a. Protected liberty interest

At the threshold step of the analysis, we accept petitioner’s premise that ORS 163.105 (1985) confers a constitutionally significant “liberty interest” in having a sentence of 

life without the possibility of parole changed to permit the 

possibility of parole. Although “[t]here is no right under the 

Federal Constitution to be conditionally released before the 

expiration of a valid sentence,” state parole statutes can create a constitutionally protected liberty interest. Swarthout, 

562 US at 220. It is not enough, however, that a state offers 

the mere “possibility” of parole; rather, a protected liberty 

interest is created only when the statute uses mandatory 

language that “creates a presumption that parole release 

will be granted” when certain necessary findings have been 

made. Board of Pardons v. Allen, 482 US 369, 377-78, 107 S Ct

2415, 96 L Ed 2d 303 (1987) (quoting Greenholtz, 442 US at

12); see also Evitts, 469 US at 401 (“when a State opts to act 

in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of 

the Constitution—and, in particular, in accord with the Due 

Process Clause[.]”).

Like the language of the statutes discussed in Allen 

and Greenholtz, ORS 163.105 (1985) uses mandatory language that creates a presumption that the board “shall” 

change the terms of the prisoner’s confinement to life with 

the possibility of parole when the board makes the designated finding. Moreover, this court has previously held that 

an Oregon parole release statute created a protected liberty 

interest in being released on a date that has been set for 

release. Stogsdill, 342 Or at 335-36.

The board makes little effort to counter petitioner’s 

argument that he has a protected liberty interest in becoming 

eligible for early release, except to suggest that the interest is 

a step removed from being given a release date—and, thus, 

“more tenuous” than the liberty interest that we identified 

in Stogsdill. But that distinction appears to be immaterial 
28 Haynes v. Board of Parole

given our discussion of the applicable parole framework in 

Janowski/Fleming v. Board of Parole, 349 Or 432, 245 P3d 

1270 (2010). In Janowski, we undertook an extensive analysis of the parole statutes and regulations that are applicable to prisoners who committed aggravated murder during 

the era in which petitioner here committed his crime. We 

concluded that, under that statutory and regulatory framework, once the board changes the terms of a prisoner’s confinement under ORS 163.105 (1985) to allow the possibility 

of parole, the board must set—or must already have set—a 

scheduled parole release date.9 Id. at 453. Janowski did not 

analyze whether ORS 163.105 (1985) creates a protected 

liberty interest in the change of an inmate’s confinement 

terms, but its conclusion undermines the board’s suggestion that a decision under ORS 163.105 (1985) to allow the 

possibility of release does not necessarily result in a release 

date, the only reason that the board offers for distinguishing Stogsdill. We, thus, accept petitioner’s premise that ORS 

163.105 (1985) creates a liberty interest within the meaning 

of the Due Process Clause and, thus, that petitioner is entitled to some measure of due process when the board denies 

a request to change a prisoner’s terms of confinement.

b. Constitutionally sufficient process

The more challenging task for petitioner is to establish that a right to judicial review with the assistance of 

adequate counsel is among the procedural protections that 

the Due Process Clause demands when a liberty interest 

in parole is at stake. The nature of the procedural protections that due process requires to vindicate a liberty interest depends upon the nature of the liberty interest at issue. 

See Swarthout, 562 US at 220. The United State Supreme 

Court has already determined that, when the liberty interest at issue is a state-created opportunity for parole, the 

Due Process Clause guarantees no more than “minimal” 

process, which is limited to an opportunity to be heard and 

a statement of the reasons why parole was denied. Id. (citing 

Greenholtz, 442 US at 16).

9 The parole “release date” referred to in Janowski is not a date on which 

release is guaranteed, but it is a scheduled release date that may be postponed for 

only three statutorily prescribed reasons. 349 Or at 457 (citing ORS 144.125(2) 

(1985)).
Cite as 362 Or 15 (2017) 29

As petitioner acknowledges, Swarthout means that 

a state satisfies the requirements of the Due Process Clause 

without providing either a right to the assistance of counsel 

in the murder-review process or a right to judicial review 

of the board’s decision. Yet petitioner views the “minimal” 

process that Swarthout prescribes for parole decisions as 

essentially only a floor. According to petitioner, by enacting statutes that grant the additional protection of judicial 

review with the assistance of counsel, Oregon has made a 

“meaningful opportunity” to pursue judicial review part of 

the process to which petitioner is entitled under the Due 

Process Clause.

As support for his theory that a state statute can 

expand the “minimal” protections that the Due Process 

Clause otherwise requires when a state denies parole, petitioner cites only the well established principle that a statute can create the kind of interest in liberty (or property) 

to which due process protections will apply. See Wolff v. 

McDonnell, 418 US 539, 557, 94 S Ct 2963, 41 L Ed 2d 935 

(1974) (explaining that statute granting prisoners a right 

to “good time” that could be forfeited only for serious misbehavior created an “interest” that “is sufficiently embraced 

within Fourteenth Amendment ‘liberty’ to entitle [prisoners]

to those minimum procedures appropriate under the circumstances and required by the Due Process Clause”); see also 

Stogsdill, 342 Or at 336 (Oregon statutes directing parole 

board to set release date for prisoner “created a protected 

liberty interest, which required the board to provide him 

with some process.”). But whether a statute can create an 

interest in liberty or property that is protected by the Due 

Process Clause is a separate inquiry from whether a statutory process for protecting that interest becomes part of the 

procedures that the Due Process Clause requires in order to 

protect the interest. See Swarthout, 562 US at 219 (describing the two-stage inquiry under the Due Process Clause).

Nevertheless, petitioner’s theory is reminiscent of 

the reasoning that led the United States Supreme Court to 

conclude in Evitts that, if a state grants a right to appeal 

criminal convictions, then the Due Process Clause precludes 

the state from denying that right on the basis of appointed 

counsel’s failure to meet a deadline. 469 US at 396. The 
30 Haynes v. Board of Parole

defendant in Evitts appealed his criminal conviction, but 

the appeal was dismissed when his retained lawyer failed 

to file a required “statement of appeal.” The defendant then 

sought federal habeas corpus relief, contending that the dismissal of his appeal for an omission that was entirely due to 

his lawyer’s ineffective representation violated his constitutional right to due process. The state argued that, because 

states are under no constitutional imperative to provide a 

right to appeal criminal convictions,10 “whatever a state 

does or does not do on appeal—whether or not to have an 

appeal and if so, how to operate it—is of no due process concern to the Constitution.” Id. at 400.

The Court rejected the state’s argument, explaining that, although the defendant’s right to an appeal process 

was purely a statutory right, once a state creates a right to 

appeal that is “an integral part of the * ** system for finally 

adjudicating the guilt or innocence of a defendant,” it must 

decide those appeals using procedures that comport with the 

protections of the Fourteenth Amendment. Id. at 393 (quoting Griffin, 351 US at 18-20). The Court then held that those 

constitutionally required procedures included “the effective 

assistance of an attorney” to assist on direct appeal. Evitts, 

469 US at 396. Applying that rule, the Court concluded that 

the state could not deny the defendant’s appeal based on 

what was, in effect, a violation of his due process right to the 

effective assistance of counsel on direct appeal. Id. at 400.

At first glance, Evitts could be taken to support petitioner’s theory that, for any statutory grant of the right to 

appeal a decision affecting criminal defendants, there is a 

due process right to pursue that process with the assistance 

of counsel. Other decisions clarify, however, that the Evitts 

rule reaches no further than the circumstances of Evitts—a 

direct appeal process that is an integral part of the state’s 

system for adjudicating guilt or innocence. For example, 

although a state may also allow a discretionary appeal to the 

highest court, in addition to an appeal as of right to challenge 

a conviction, there is no due process right to pursue that 

10 As the court explained in Evitts, it had long ago “held that the Constitution 

does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors.” 469 US at 393 (citing McKane v. Durston, 

153 US 684, 14 S Ct 913, 38 L Ed 867 (1894)).
Cite as 362 Or 15 (2017) 31

discretionary appeal with the assistance of counsel. Ross v. 

Moffitt, 417 US 600, 610, 94 S Ct 2437, 41 L Ed 2d 341 (1974). 

Applying that rule in a later case, Wainwright v. Torna, 455 

US 586, 587-88, 102 S Ct 1300, 71 L Ed 2d 475 (1982), the 

Court held that a criminal defendant whose retained lawyer failed to file a timely petition for discretionary review 

in the state’s highest court had no due process right to pursue review with the assistance of counsel and, thus, no due 

process right to a delayed opportunity for review. Similarly, 

in Pennsylvania v. Finley, 481 US 551, 555, 107 S Ct 1990,

95 L Ed 2d 539 (1987), the Court held that, although a state 

may allow a process for collateral challenges to a conviction 

(such as a post-conviction relief act), the defendant has no 

constitutional right to pursue that process with the assistance of counsel. As the Court explained in Finley, “[s]tates 

have no obligation to provide this avenue of relief, and when 

they do, the fundamental fairness mandated by the Due 

Process Clause does not require that the State supply a lawyer as well.” Id. at 557 (internal citation omitted).

As already emphasized, states have no constitutional obligation to provide for judicial review of parole decisions. See Swarthout, 562 US at 220-21. Thus, when a state 

provides a statutory process for judicial review of a parole 

decision, inmates have no due process right to be assisted 

by adequate counsel before the petition for review is denied. 

See Finley, 481 US at 555; Wainright, 455 US at 587-88.

That answer is not changed by Oregon’s adoption of 

a statutory right to counsel to assist with judicial review, in 

addition to a statutory process for judicial review. Finley provides the most pertinent guidance on this point. In Finley, 

a prisoner whose murder conviction had been affirmed 

on direct appeal sought relief under Pennsylvania’s Post 

Conviction Hearing Act, which afforded a statutory right 

to appointed counsel to assist with the process. Instead of 

pursuing the prisoner’s claim, his appointed counsel advised 

the court that he saw no merit to the claim, and the postconviction court dismissed the case. On review, the state 

appellate court held that the attorney’s performance failed to 

satisfy the standard that the Due Process Clause demands 

when counsel is appointed to assist with a direct criminal 

appeal and, therefore, that the dismissal of the prisoner’s 
32 Haynes v. Board of Parole

case violated his constitutional right to the effective assistance of counsel.11 481 US at 553-54.

In the Supreme Court, the prisoner relied on Evitts 

for the proposition that a statutory right to counsel must be 

equivalent to the due process right to counsel, but the Court 

disagreed. 481 US at 557-58. As the Court explained:

“the fact that the defendant has been afforded assistance 

of counsel in some form does not end the inquiry for federal constitutional purposes. Rather, it is the source of that 

right to a lawyer’s assistance, combined with the nature of 

the proceedings, that controls the constitutional question.”

Id. at 556. The Court emphasized that the nature of the

proceeding—a collateral challenge to a criminal conviction—

is “not part of the criminal proceeding itself,” that “[s]tates 

have no obligation to provide this avenue of relief, and [that] 

when they do, the fundamental fairness mandated by the 

Due Process Clause does not require that the State supply a 

lawyer as well.” Id. at 557 (internal citation omitted). Given 

the nature of the proceedings, the Court concluded that the 

only source of the right to counsel in Finley was state law 

and, accordingly, it rejected the state court’s conclusion that 

dismissing the prisoner’s case would violate his rights under 

the Due Process Clause. Id. at 559.

Here, too, the proceeding—judicial review of a board 

decision regarding the possibility of parole—is not part of 

the criminal proceeding itself, is not an avenue of relief that 

the state has a constitutional obligation to provide, and is 

not a proceeding for which, when the state provides it, the 

Due Process Clause requires the state to provide a lawyer 

as well. Thus, the source of petitioner’s right to counsel is 

purely the state’s decision to supply petitioner with a lawyer. 

Given that source of the right to counsel, and the nature 

of the judicial review proceeding at issue, we conclude that 

petitioner has no due process right to be assisted by adequate counsel before his petition for review is denied.

11 The lawyer in Finley had failed to comply with procedures that the 

Supreme Court prescribed to assure that, when a criminal defendant’s appointed 

counsel concludes there is no merit to the direct appeal, the defendant’s constitutional right to counsel on direct appeal is, nevertheless, protected. See Anders v. 

California, 386 US 738, 87 S Ct 1396, 18 L Ed 2d 493 (1967).
Cite as 362 Or 15 (2017) 33

III. CONCLUSION

As a matter of state law, petitioner’s right to judicial review of the board’s decision is strictly contingent 

upon filing a petition for review within the 60-day deadline. 

Allowing petitioner to pursue review outside of the jurisdictional time limit is not an appropriate remedy to address a 

denial of his statutory right to counsel. Nor is he entitled to 

that relief under the Due Process Clause, given the nature 

of the judicial review proceeding.

The order of dismissal of the Court of Appeals is 

affirmed.