IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DANIEL WHITTLINGER, 

Petitioner, 

v. 

MARK NOOTH, Superintendent, 

Snake River Correctional Institution, 

Respondent. 

ANTHONY D. BORNSTEIN 

Assistant Federal Public Defender 

101 SW Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

KRISTEN E. BOYD 

Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for Respondent 

BROWN, Judge. 

Civil No. 2:13-cv-00764-BR 

OPINION AND ORDER 

Petitioner, an inmate at the Snake River Correctional 

Institution, brings this habeas corpus action pursuant to 28 

1 - OPINION AND ORDER -

Case 2:13-cv-00764-BR Document 39 Filed 06/24/14 Page 1 of 7
U.S.C. § 2254. For the reasons that follow, the Court DENIES the 

Amended Petition for Writ of Habeas Corpus (#16). 

BACKGROUND 

On June 29, 1989, Petitioner was convicted of murder pursuant 

to a plea deal and was sentenced to life imprisonment, with a tenyear minimum term. In March 1995, Petitioner was convicted of 

Inmate in Possession of a Weapon, and was sentenced to 31 months 

of imprisonment. In 2002, Petitioner was released to parole. 

In January 2007, Petitioner's parole was revoked. After 

serving a sanction for the new criminal activity, Petitioner was 

re-released to parole in April 2007. 

On July 15, 2007, Petitioner was arrested after his vehicle 

struck and seriously injured three cyclists. In October 2007, 

Petitioner's parole was revoked pending a future disposition 

hearing. Following the hearing, the Oregon Board of Parole and 

Post-Prison Supervision (the "Board") concluded re-release would 

be denied and reset Petitioner's parole release date to July 15, 

2047. 

Petitioner timely petitioned the Oregon Court of Appeals for 

review of the Board's action. The Oregon Court of Appeals 

affirmed the Board's action without opinion, and the Oregon 

Supreme Court denied a petition for review. Whittlinger v. Board 

of Parole, 252 Or. App. 751, 292 P.3d 75 (2012), rev. denied, 353 

Or. 281, 298 P.3d 31 (2013). 

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Case 2:13-cv-00764-BR Document 39 Filed 06/24/14 Page 2 of 7
On May 6, 2013, Petitioner filed a pro se Petition for Writ 

of Habeas Corpus in this Court. The Court appointed counsel to 

represent Petitioner. Currently before the Court is Petitioner's 

Amended Petition for Writ of Habeas Corpus (#16), which alleges 

two grounds for relief: 

Ground One: The Oregon Board of Parole violated 

petitioner's right to Due Process of Law under the 

Fourteenth Amendment when, in 2009, it denied his rerelease, an action taken with unlimited discretion. 

Specifically, the absence of guidelines for this 

decision denies due process. 

Ground Two: The Oregon Board of Parole further violated 

petitioner's right to Due Process of Law when it failed 

to promulgate adequate rules governing and guiding rerelease decisions. 

Respondent argues neither claim was fairly presented to the 

Board or the state courts and that, in any event, the Board 

decision is entitled to deference and that Petitioner's claims are 

without merit because he received all of the process he was due. 

DISCUSSION 

Generally, a state prisoner must exhaust all available state 

court remedies either on direct appeal or through collateral 

proceedings before a federal court may consider granting habeas 

corpus relief. 28 u.s.c. § 2254 (b) (1). A state prisoner 

satisfies the exhaustion requirement by fairly presenting his 

claim to the appropriate state courts at all appellate stages 

afforded under state law. Baldwin v. Reese, 541 U.S. 27, 29 

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Case 2:13-cv-00764-BR Document 39 Filed 06/24/14 Page 3 of 7
(2004); Casey v. Moore, 386 F. 3d 896, 915-16 & n.18 (9th Cir. 

2004). 

To "fairly" present a federal claim, the prisoner must 

present both the operative facts and the legal theory on which the 

claim is based so as to adequately alert the state courts to the 

federal nature of the claim. Koerner v. Grigas, 328 F.3d 1039, 

1046 (9th Cir. 2003). This may be accomplished by explicit 

reference to a constitutional amendment or by citing state or 

federal case law discussing the federal constitutional right in 

question. See Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 

2003). A claim is not fairly presented if a state court "must 

read beyond a petition or a brief . . that does not alert it to 

the presence of a federal claim in order to find material 

that does so." Baldwin, 541 U.S. at 32; see also Castillo v. 

McFadden, 399 F.3d 993, 1000 (9th Cir.2005) (in order to exhaust, 

a petitioner must present his federal constitutional issue "within 

the four corners of his appellate briefing"). 

The federal exhaustion requirement is intended to "ensure . 

that the state courts have the opportunity fully to consider 

federal-law challenges to a state custodial judgment before the 

lower federal courts may entertain a collateral attack upon that 

judgment." Duncan v. Walker, 533 U.S. 167, 178-79 (2001). If a 

claim was not fairly presented to the highest state court and no 

state remedies remain available, the "technical" requirements of 

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Case 2:13-cv-00764-BR Document 39 Filed 06/24/14 Page 4 of 7
exhaustion are met. However, the claim remains barred from 

federal review through the doctrine of procedural default. See 

Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). 

a federal court 

Only in 

exceptional circumstances may consider 

procedurally defaulted claims: 1) the petitioner demonstrates 

cause for the procedural default and prejudice from the 

constitutional error; or 2) the lack of federal review would 

result in a "fundamental miscarriage of justice." Schlup v. Delo, 

513 u.s. 298, 315 (1995). 

In his Administrative Review Request following the Board's 

decision denying re-release, Petitioner alleged several claims. 

In his petition for judicial review, however, Petitioner alleged 

a single assignment of error: "The board erred in relying on ORS 

144.343 (2) (b) (1987) and OAR 255-75-096 (effective 5/19/1988) 

alone to deny petitioner reparole [sic] and set a new release date 

of July 14, 2047." Resp. Exh. 104, p. 1. The petition for 

judicial review argued exclusively that the Board's decision did 

not comply with state law. The petition did not at any time refer 

to or implicate Petitioner's federal due process rights. 

Petitioner concedes that exhaustion requires that the federal 

Constitutional argument be fairly presented within the four 

corners of the state-court appellate brief, but argues there 

should be "relaxed consideration" in this case. Petitioner 

contends the argument advanced in the state court proceeding--

S - OPINION AND ORDER -

Case 2:13-cv-00764-BR Document 39 Filed 06/24/14 Page 5 of 7
that the Board did not act in accordance with established rules 

relating to an offender's re-release and not on the Board's 

complete discretion--sufficiently sounds in due process terms that 

the exhaustion requirement should, as a practical matter, be 

deemed satisfied. 

The Court disagrees. Petitioner did not present a federal 

due process claim to the Oregon courts. This situation is not 

akin to that cited by Petitioner, in which the Third Circuit Court 

of Appeals found that an insufficiency of the evidence claim, 

though advanced in state law terms, was the "substantial 

equivalent" of a federal sufficiency claim. Petitioner's argument 

to the state courts here was grounded solely in the Board's 

alleged failure to apply the appropriate state law. 

Based on the record, the Court concludes Petitioner failed to 

fairly present the claims alleged in this action to Oregon's state 

courts. Because the time for presenting the claims passed long 

ago, they are now procedurally defaulted. 1 Petitioner does not 

argue cause and prejudice to e x cuse the default, nor does he 

attempt to make a colorable showing of actual innocence. 

1Generally, an inmate may file a direct appeal to the Oregon 

Court of Appeals within sixty days of a final decision of the 

Oregon Board of Parole. Or. Rev. S. § 144.335. 

6 - OPINION AND ORDER -

Case 2:13-cv-00764-BR Document 39 Filed 06/24/14 Page 6 of 7
Accordingly, relief on the Amended Petition for Writ of Habeas 

Corpus must be denied. 2 

CONCLUSION 

For these reasons, the Court DENIES the Amended Petition for 

Writ of Habeas Corpus (#16) and DISMISSES this action. The Court 

DENIES a certificate of appealability as Petitioner has not made 

a substantial showing of the denial of a constitutional right. 

See 28 U.S.C. § 2253 (c) (2). 

IT IS SO ORDERED. 

DATED this Ql~~ day of June, 2014. 

A~ United States District Judge 

2Because the claims alleged by Petitioner are procedurally 

defaulted, the Court declines to consider whether Petitioner is 

entitled to relief on the merits. The Court notes, however, that 

for the purposes of federal review in the context of parole 

eligibility decisions, the due process right afforded individuals 

is procedural, and entitles a petition to nothing more than a fair 

hearing and a statement of the reasons for the parole board's 

decision. Swarthout v. Cooke, 131 S.Ct. 859 (2011); Miller v. 

Oregon Bd. of Parole and Post Prison Supervision, 642 F.3d 711, 716 

(2011) . Petitioner was provided with notice, an opportunity to be 

heard, and a statement of why his re-release on parole was denied. 

As such, he was provided the process that was due and the denial of 

his re-release on parole was not contrary to or an unreasonable 

application of clearly established federal law. 

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