IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ARLEN PORTER SMITH, 

Petitioner, 

v. 

JEAN HILL, 

Respondent. 

ARLEN PORTER SMITH, 

Petitioner, 

v. 

JOHN MYRICK, 

Respondent, 

TONI L. MORO 

19 S. Orange Street 

Medford, OR 97501 

Attorney for Petitioner 

1 - OPINION AND ORDER -

Civil No. 3:05-cv-01900-BR 

OPINION AND ORDER 

Civil No. 2:15-cv-00738-BR 

OPINION AND ORDER 
ELLEN F. ROSENBLUM 

Attorney General 

KRISTEN E. BOYD 

Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for Respondents 

BROWN, Judge. 

Petitioner, an inmate at the Snake River Correctional 

Institution, brings these habeas corpus proceedings challenging 

decisions of the Oregon Board of Parole and Post-Prison Supervision 

(the ''Board''). Because the cases are procedurally intertwined and 

share common background facts, the Court addresses both cases in a 

single Opinion and Order to be filed separately in each case. For 

the reasons that follow, the Amended Petition for Writ of Habeas 

Corpus (ECF No. 83) in Case No. 3:05-cv-01900-BR and the Petition 

for Writ of Habeas Corpus (ECF No. 1) in Case No. 2:15-cv-00738-BR 

are DENIED. 

BACKGROUND 

I. Proceedings Before the Board and the State Courts 

A. The Board's Decision to Deny Restoration of Good Time 

Credits for the 1991 Jackson County Sentence 

In August 1981, a Jackson County judge sentenced Petitioner on 

convictions for three counts of Burglary in the First Degree to an 

indeterminate term of 20 years in prison, with a 90-month minimum.' 

1 In October 1991, a Polk County judge sentenced Petitioner to 

a 20-year indeterminate term for Burglary in the First Degree. The 

2 - OPINION AND ORDER -
On January 19, 1984, Petitioner was released on parole from his 

1981 Jackson County sentence. On February 10, 1984, Petitioner was 

arrested in Marion County on new criminal charges. On March 6, 

1984, the Board revoked Petitioner's parole on the 1981 Jackson 

County sentence based on his new criminal activity in Marion 

County. 

Petitioner was ultimately convicted on December 10, 1984, of 

the 1984 Marion County offenses. In particular, Petitioner was 

convicted of two counts of Robbery in the First Degree and one 

count each of Unauthorized Use of a Vehicle, Kidnaping in the First 

Degree, and Attempted Kidnaping in the First Degree. The Marion 

County trial judge sentenced Petitioner as a dangerous offender to 

an additional 105 years in prison, to run consecutive to the 1981 

Jackson County sentence. 

At the time Petitioner's parole on the 1981 Jackson County 

sentence was revoked on March 6, 1984, Oregon law provided as 

follows: 

(2) When a paroled inmate violates any conditions of 

parole, no deduction from the term of sentence, as 

provided in subsection (1) of this section [providing for 

the deduction of time from an inmate's sentence for good 

time], shall be made for service by such inmate in the 

penal or correctional institution prior to acceptance and 

Polk County sentence, however, is not pertinent to these 

proceedings. 

3 - OPINION AND ORDER -
release on parole, except when authorized by the State 

Board of Parole upon recommendation of the superintendent 

thereof. 

Or. Rev. Stat. § 421.120(2) (1983) (emphasis added). 

The relevant administrative rules then in effect gave the 

Board unfettered discretion whether or not to restore forfeited 

good time credit based on the recommendation of the superintendent. 

Or. R. Admin. P. 291-100-018 (effective 11-4-83) provided, in 

pertinent part: 

3. Credit to Parole Violator for Good Time Earned 

Prior to Parole Release 

a. Upon return from parole, designated staff in 

the Corrections Division facility to which the 

parolee is returned, will as quickly as 

possible prepare a report for the 

superintendent's signature which will be 

forwarded by the superintendent to the Parole 

Board Chairperson with a recommendation for 

restoration or non-restoration of Good Time 

credits accrued by the inmate prior to his/her 

release from parole. 

b. A favorable recommendation will be made if a 

review of the inmate's file reflects he/she 

would more than likely have been credited with 

the Good Time had the individual not been 

paroled. 

c. It is the prerogative of the Parole Board to 

approve or disapprove all recommendations. 

(Emphasis added.) Under Or. R. Admin. P. 255-75-085 (1979): 

(2) At the future disposition hearing, the Board may: 

(a) Set a new parole release date according to the 

guidelines in rule 255-75-085 and choose not 

to give credit for statutory good time earned 

until suspension of parole; or 

4 - OPINION AND ORDER -
(b) Deny further parole consideration, according 

to the guidelines in rule 255-75-090, and 

return all or part of the statutory good time 

to which the prisoner is entitled. 

(Emphasis added) . 

In July 1984, the Board conducted a "future disposition 

hearing" and, based upon a finding of new criminal conduct in 

Marion County in February 1984, the Board ordered that Petitioner 

be re-paroled on his 1981 Jackson County sentence on February 1, 

1985, at which time the 1984 Marion County sentence would commence. 

The Board's order did not address Petitioner's good time credits. 

Shortly after Pe ti ti oner's return to prison in 1984, the 

institution superintendent recommended restoration of 334 days of 

previously earned good time credit toward Petitioner's 1981 Jackson 

County sentence. It appears from the record that the Board was not 

aware of this recommendation and, in any event, the Board did not 

act on it for some years. 

In January 2001, before he was aware of the 1984 

recommendation for restoration of good time credit for the 1981 

Jackson County conviction, Petitioner filed a petition for 

alternative writ of mandamus in state court seeking an order 

requiring the superintendent to perform the statutory duty of 

making a recommendation to the Board on the restoration of good 

time credits. The trial court dismissed the mandamus proceeding on 

the state's motion. Petitioner appealed, but the Oregon Court of 

Appeals affirmed without opinion and the Oregon Supreme Court 

5 - OPINION AND ORDER -
denied review. Smith v. Hill, 195 Or. App. 546, 99 P. 3d 1239 

(2004), rev. denied, 338 Or. 583, 114 P.3d 504 (2005). 

While the appeal from the dismissal of the mandamus petition 

was pending, the superintendent in 2003 issued a new, contrary 

recommendation that Petitioner's good time credits on his 1981 

Jackson County conviction not be restored. On June 16, 2003, the 

Board denied the restoration of good time credits in Board Action 

Form ("BAF") #7. Petitioner sought administrative review, but on 

December 19, 2006, the Board issued Administrative Review Response 

("ARR") #3 denying Petitioner's request. 

Petitioner sought judicial review of the Board's decision set 

forth in BAF #7. As a result of the judical review of BAF #7 and 

the discovery of the 1984 DOC memorandum recommending reinstatement 

of Petitioner's good time credits, the Oregon appellate 

commissioner granted a Board motion to establish a new due date for 

a new board order to address the 1984 DOC memorandum. The Board 

scheduled an administrative review hearing for December 10, 2008, 

to consider the 1984 memorandum recommending restoration, and to 

decide whether Petitioner was entitled to the restoration of good 

time credits. The Board described the purpose of the hearing in 

BAF #14: 

The purpose of the hearing is to allow offender to 

present any information that he feels is relevant to 

whether the Board should return all or part of his 

statutory good time credits and to give the Board the 

opportunity to deliberate based on a complete record. 

6 - OPINION AND ORDER -
After the hearing, the Board will issue a new BAF 

regarding restoration of offender's good time credits, 

which will be subject to administrative and judicial 

review in the normal course. 

For convenience, the board sets out the applicable 

standard in this order: 

(2) At the future disposition hearing, the Board 

may: 

(a) Set a new parole release date according 

to the guidelines in the rule 255-75-085 and 

choose not to give credit for statutory good 

time earned until suspension of parole; or 

(b) Deny further parole consideration, 

according to the guidelines in rule 255-75-

090, and return all or part of the statutory 

good time to which the prisoner is entitled. 

To recapitulate, the AR hearing is solely for the Board 

to consider the 1984 memorandum, as clarified by OISC, 

and to apply the standard set out [in] OAR 255-75-085 

(permanent effective February 1, 1979) [sic]. 

Resp. Exh. 128, pp. 62-63. 

Petitioner appeared at the "administrative review" hearing on 

December 10, 2008, accompanied by counsel. Following the hearing, 

the Board denied restoration of the previously forfeited good time 

credits in BAF #15, stating: 

As explained more fully in Board Action Form (BAF) #14, 

dated September 15, 2008, the Board scheduled this 

administrative review (AR) hearing to make a decision on 

the recently received 1984 memorandum regarding the 

restoration of offender's good time credit (with the 

added clarification that 369 days are available for 

restoration) . 

After reviewing the entire record, which includes a 

positive recommendation of forfeited goodtime credits 

from 1984, and applying OAR 255-75-085 {permanent 

effective February 1, 197 9) as well as all applicable 

rules and laws, the Board unanimously denies restoration 

of forfeited good time credits. 

7 - OPINION AND ORDER -
Resp. Exh. 128, p. 491. Petitioner sought judicial review of BAF 

#15, but the Oregon Court of Appeals affirmed without opinion and 

the Oregon Supreme Court denied review. Smith v. Hill, 245 Or. 

App. 504, 260 P.3d 856 (2011), rev. denied, 352 Or. 107, 284 P.3d 

485 (2012). As a result, Petitioner did not receive additional 

good time credit against his 1981 Jackson County sentence. 

B. The 2001 Board Decision Deferring Release on the 1984 

Marion County Sentence - Casa No. 3:05-cv-1900-BR 

Meanwhile, following Petitioner's conviction on the 1984 

Marion County convictions, the Board held an initial prison term 

hearing setting a parole consideration date for that sentence of 

September 5, 2001. In preparation for that hearing, Robert 

Stuckey, Ph.D., prepared a Parole Board Psychological Evaluation on 

Petitioner dated May 9, 2001, and Frank P. Colistro, Ed.D., 

completed a psychological evaluation of Petitioner dated June 7, 

2001. 

On October 16, 2001, the Board conducted a parole 

consideration hearing at which Petitioner appeared and testified. 

At the conclusion of the hearing, the Board issued BAF #6, which 

deferred for 24 months parole consideration for the 1984 Marion 

County convictions. The Board explained the decision as follows: 

The Board, applying the rules in effect at the time of 

the commitment offense (s), finds the offender has a 

mental or emotional disturbance, deficiency, condition, 

or disorder predisposing offender to the commission of 

any crime to a degree rendering the offender a danger to 

the health or safety of others, therefore, the condition 

which made inmate dangerous is not in remission and 

8 - OPINION AND ORDER -
inmate does continue to remain a danger. The Board would 

reach the same result under the current rules. 

Resp. Exh. 103, p. 4. 

Petitioner sought administrative review, which the Board 

denied in a written decision in ARR #2. Petitioner then sought 

judicial review, but the Oregon Court of Appeals affirmed without 

opinion and the Oregon Supreme Court denied review. Smith v. Board 

of Parole, 199 Or. App. 270, 111 P. 3d 248, rev. denied, 339 Or. 

450, 24 P. 3d 609 (2005). 

C. The 2007 Board Decision Deferring Release on Parole from 

the 1984 Marion County Sentence - Case No. 2: 15-cv-00738-

BR 

Petitioner appeared before the Board regarding his 1984 Marion 

County convictions on July 18, 2007, for a parole consideration 

hearing. 2 Resp. Exh. 102. 

Following that hearing, the Board issued Board Action Form 

("BAF") #13 deferring for 24 months Petitioner's parole 

consideration date for these convictions. Resp. Exh. 102, pp. 4-7. 

Pe ti ti oner sought administrative review, but the Board denied 

relief on June 15, 2009, in Administrative Review Response ("ARR") 

#10. Resp. Exh. 102, pp. 6-7. Petitioner filed a petition for 

judicial review, but the Oregon Court of Appeals affirmed without 

opinion and the Oregon Supreme Court denied review. Smith v. Board 

'Petitioner also appeared before the Board in 2003 and 2005 as 

to these convictions, but the Board decisions following those 

hearing are not at issue here. 

9 - OPINION AND ORDER -
of Parole, 245 Or. App. 300, 260 P.3d 201 (2011), rev. denied, 352 

Or. 170, 285 P.3d 720 (2012). The appellate judgment issued on 

December 4, 2012. Resp. Exh. 103. 

D. The 2009 Board Decision Deferring Release on Parole on 

the 1984 Marion County Conviction - Case No. 2: 15-cv00738-BR 

On July 8, 2009, Petitioner again appeared before the Board 

for another parole consideration hearing related to the 1984 Marion 

County convictions. Notwithstanding Petitioner's request for 

subpoenas for records and for personal appearances of witnesses at 

the hearing, the Board ruled that such subpoenas were not 

authorized by law. The Board memorialized this ruling in Board 

Action E'orm ("BAE'") #16. Thereafter, the Board issued BAE' #17 

deferring for 24 months Petitioner's parole consideration date. 

Petitioner sought administrative review of both of these actions, 

but the Board denied relief in ARR #11 and ARR #12. Resp. Exh. 

105, pp. 2-5. Petitioner filed a petition for judicial review. 

The Oregon Court of Appeals affirmed the Board's decision in a 

written opinion. Smith v. Board of Parole, 268 Or. App. 457, 343 

P. 3d 245 (2015). On July 9, 2015, after Petitioner filed his 

Petition for Writ of Habeas Corpus in Case No. 2:15-cv-00738-BR, 

the Oregon Supreme Court denied review. Smith v. Board of Parole 

and Post-Prison Supervision, 357 Or. 550, 357 P.3d 245 (2015). 

10 - OPINION AND ORDER -
II. Federal Habeas Proceedings 

On December 20, 2005, Petitioner filed a pro se Petition for 

Writ of Habeas Corpus in Smith v. Hill, Case No. 3:05-cv-01900-BR 

as to his challenges regarding restoration of good time credit from 

his 1981 Jackson County convictions, his classification as a 

''dangerous offender,'' and other parole issues related to those 

convictions. In it, Petitioner alleged five claims for relief: 

Ground One: Respondents have wrongfully extended 

petitioner's term of confinement through the ex post 

facto application of laws. 

Supporting Facts: Oregon state law in effect at the time 

of petitioner's crime authorized the suspension of a 

prisoner's previously earned good time credits upon a 

prisoner's release on parole but, also required 

respondent Hill recommend the full restoration of the 

suspended good time credits upon a prisoner's return to 

prison as an alleged parole violator if the prisoner 

would have received the good time credit had he/she not 

been paroled. Under the prior Oregon law a prisoner's 

good time credit would be fully restored if the prisoner 

was not promptly reparoled. Petitioner has been returned 

to prison as a parole violator and not reparoled. 

Respondent Hill has refused to recommend the restoration 

of and restore petitioner's previously earned good time 

credits. The basis for respondent's action is laws 

enacted after the commission of petitioner's crime which 

now require a prisoner save another person's life before 

any good time credits will be restored. 

Ground Two: Respondents and the State of Oregon have 

wrongly denied petitioner Due Process of law under the 

Fifth and Fourteenth Amendments. 

Supporting Facts: Both the actions of suspending 

petitioner's previously earned good time credits and the 

decision to refuse to restore the suspended good time 

credits occurred without notice and without a meaningful 

opportunity to contest these actions. Though ORS 

421.120(1) (h) requires respondents enact uniform 

administrative rules governing the granting, retracting, 

and restoring of good time credits Oregon prison and 

11 - OPINION AND ORDER -
parole officials have not enacted procedures providing 

prisoners a meaningful opportunity to contest legal 

errors in granting, retracting, and/or restoring good 

time credits. 

Ground Three: Respondents have wrongly extended 

petitioner's term of confinement through the ex post 

facto application of laws. 

Supporting Facts: Petitioner was sentenced to an enhanced 

sentence under Oregon's ''Dangerous Offender'' statutes. 

Under the laws in effect at the time of petitioner's 

crime, a prisoner had to be released on parole on the 

"parole consideration date" established by the board of 

parole at the prisoner's initial prison term hearing if 

when the parole consideration date came an independent 

evaluation conducted by a psychiatrist in the employ of 

the Oregon State Hospital indicated that the prisoner was 

not a ''menace to the health or safety of others.'' 

Pe ti ti oner's established parole consideration date was in 

July of 2001 but, respondents, through the application of 

laws enacted after the commission of petitioner's crime, 

have denied petitioner the independent evaluation 

petitioner was entitled to under the laws annexed to 

petitioner's crime and have usurped the authority to 

determine petitioner's eligibili tv for release on parole. 

Ground Four: Respondents have wrongly extended 

petitioner's term of confinement through the ex post 

facto application of laws. 

Supporting Facts: Petitioner realleges the facts set 

forth in the Supporting FACTS section of Ground Three 

above. Petitioner further asserts that respondents have 

also applied a more onerous criteria than that annexed to 

petitioner's crimes to deny petitioner parole. Under the 

laws annexed to petitioner's crimes, an independent 

determination had to be made as to whether the prisoner 

was a "menace to the heal th or safety of others." 

Respondents have applied a potentially ''dangerous'' 

statutory criteria enacted after the commission of 

petitioner's crime premised on an evaluation prepared by 

an employee of the board of parole. 

Ground Five: Respondents and the State of Oregon have 

wrongly denied petitioner Due Process of law under the 

Fifth and Fourteenth Amendments. 

Supporting Facts: Petitioner realleges the facts set 

forth in the Supporting FACTS section of Ground Three and 

four above. Petitioner further asserts that during 

12 - OPINION AND ORDER -
petitioner's criminal trial proceedings petitioner moved 

pursuant to the provisions of ORS 137.079 for an order 

striking portions of the prepared presentence 

investigation. The trial court subsequently found that 

substantial portions of the presentence investigation 

contained information that was false and granted 

petitioner's motion. The provisions of ORS 137.079 ban 

release of information stricken from a presentence 

investigation to the state board of parole and the state 

department of corrections. Notwithstanding the grant of 

petitioner's motion, those portions of petitioner's 

presentence investigation ordered stricken and/or 

disregarded were forwarded to, and became part of the 

files and records of, the board of parole. In response 

to litigation associated with petitioner's initial prison 

term hearing the board of parole purged its files of the 

information ordered stricken. Though the board of parole 

subsequently purged its files and records of this 

infomiation the department of corrections did not. In 

producing the evaluation of petitioner upon which the 

board denied petitioner release on parole the 

psychologist in the board's employ relied upon 

information previously determined to be false in state 

court proceedings. At petitioner's hearings, the board 

has denied petitioner all opportunity to cross-examine or 

otherwise submit questions to the person producing the 

evaluations used as the sole basis for the denial of 

parole to petitioner. Respondents have used an 

evaluation they know to be based on false information to 

deny petitioner release on parole with out allowing a 

meaningful opportunity to challenge the content of the 

evaluation. 

The Court appointed counsel to represent Petitioner and, on 

July 25, 2008, the Court granted petitioner's motion to stay the 

proceedings in Case No. 3:05-cv-01900-BR pending the exhaustion of 

state remedies related to the 2003 Board decision memorialized in 

BAF #7, discussed above. As noted, BAF #7 was ultimately 

superseded by BAF #15 following the December 10, 2008, hearing 

before the Board, and the Oregon appellate courts upheld the 

13 - OPINION AND ORDER -
Board's decision in BAF #15. 

August 16, 2012. 

The appellate judgment issued on 

On June 14, 2013, Petitioner filed a motion seeking to lift 

the administrative stay in Case No. 3:05-cv-01900-BR and seeking 

leave to file an amended petition alleging the five claims from the 

original petition plus an additional eight claims. Four of the 

proposed new claims pertained to the December 10, 2008, Board 

decision denying restoration of Petitioner's good time credits, and 

the other four pertained to the Board's decisions to deny release 

on parole in 2007 and 2009. Petitioner also sought to stay the 

case again, this time pending the conclusion of state court 

proceedings related to the 2009 Board decision. 

The Court noted a split of authority in the Ninth Circuit as 

to whether the Rules Governing § 2254 cases permit a petitioner to 

challenge in one federal habeas petition two separate parole 

decisions related to one judgment of conviction and sentence. The 

Court also noted that allowing challenges to multiple Parole Board 

decisions in a single habeas proceeding would present inherent, 

"mixed petition" problems when the Board issues new decisions while 

the Petitioner is still in the process of exhausting state remedies 

as to the earlier Board decision(s). Accordingly, the Court 

granted Petitioner's motion to lift the stay and the motion for 

leave to amend the petition to allege the claims pertaining to the 

restoration of good time credits, but denied the motion to amend 

14 - OPINION AND ORDER -
the petition to allege claims pertaining to the 2007 and 2009 Board 

decisions. 

On April 10, 2015, Petitioner filed a First Amended Petition 

for Writ of Habeas Corpus in Case No. 3:05-cv-1900-BR incorporating 

the five claim for relief alleged in the original pro se Petition. 

As noted above, the original claims alleged in Grounds One and Two 

challenged the 2003 decision by the Board in BAF #7 to deny the 

restoration of good time credits, and Grounds Three, Four, and Five 

challenged the Board's 2001 decision deferring release. The 

Amended Petition also added the four additional claims allowed by 

the Court, as follows: 

Ground Five: Petitioner was denied due process under the 

Fourteenth Amendment when the Board failed to provide any 

reasons for its denial of the restoration of good time 

credits and failure to re-parole petitioner effective 

February 2005. 

Ground Six: The Parole Board's 2003 and 2008 denial of 

petitioner's good time credit and Board's failure to 

re-parole petitioner effective February 2005, violated 

the federal ex post facto clause and the federal due 

process clause. Regarding the due process violation, 

among other things, the decision was a vindictive 

response to petitioner's efforts to seek remedies. And 

the Parole Board's refusal to allow petitioner to 

subpoena and pose questions to witnesses regarding the 

calculation of petitioner's good time discharge date and 

the two recommendations deprived petitioner of a fair 

hearing, reasonable notice and a meaningful opportunity 

to be heard. 

Ground Seven: The Parole Board's failure to re-parole 

petitioner in February 2005, violated the federal ex post 

facto clause and the federal due process clause. 

Ground Eight: The Parole Board's 2003 and 2008 failure to 

re-parole petitioner effective February 2005 or to 

15 - OPINION AND ORDER -
restore his good time credit, violated petitioner's First 

Amendment rights to free speech and access to the courts. 

Respondent argues the claims alleged in Grounds One, Two, 

Five, Six, Seven, and Eight are procedurally defaulted. In 

addition, Respondent argues that to the extent the Court finds the 

claims alleged in Grounds One, Five, and Six were fairly presented 

to the highest state courts as federal claims, relief on these 

claims was denied in decisions which are not contrary to or an 

unreasonable application of clearly established federal law and, as 

such, are entitled to deference. Finally, although Respondent 

concedes the claims alleged in Grounds Three, Four, and Five are 

fully exhausted, Respondent nevertheless asserts that the state 

court's denial of these claims are entitled to deference. 

On April 30, 2015, Petitioner filed his counseled Petition for 

Writ of Habeas Corpus in Case No. 2:15-cv-00738-BR, alleging five 

grounds for relief challenging the Board's 2007 and 2009 decisions 

to defer Petitioner's parole release date on his 1984 Marion County 

conviction: 

Ground One: Petitioner was denied his First Amendment 

right to free speech and Due Process pursuant to the 

Fourteenth Amendment when the Parole Board denied parole 

in 2007 based upon Petitioner's conduct which questioned 

the validity of the evaluation and testing process. 

Ground Two: Petitioner was denied due process pursuant 

to the Fourteenth Amendment when the Parole Board denied 

parole in 2007 based upon unreliable evidence and when it 

denied Petitioner's request to call and question 

witnesses on the factual issue. 

16 - OPINION AND ORDER -
Ground Three: The Parole Board violated the ex post 

facto clause of the federal constitution when it denied 

parole in 2007 and 2009 based upon a subsequently enacted 

standard that allowed Board psychologists to provide them 

mental health evaluation when the applicable standard 

required Oregon State Hospital psychiatrists to conduct 

the evaluation and when the applicable standard required 

a more exacting substantive standard. 

Ground Four: Petitioner was denied due process pursuant 

to the Fourteenth Amendment and his right to free speech 

under the First Amendment when the Parole Board denied 

parole in 2009 based upon his request that the 

psychological evaluation be monitored or recorded. 

Ground Five: Petitioner was denied due process pursuant 

to the Fourteenth Amendment when the Parole Board denied 

parole in 2009 without allowing petitioner to call and 

question witnesses. The Board is not merely charged with 

making a prediction about whether the inmate will succeed 

on parole. In parole consideration proceedings in 

Oregon, the Board is charged with administering the 

second step in the sentencing process. As a result, the 

right to call and question witnesses is necessary under 

Mathews v. Eldridge, 424 U.S. 319, 332, 335 (1976) (the 

process due in a particular situation depends upon the 

need to serve the purpose of minimizing the risk of 

error). Moreover, the Board may not ignore the process 

the state adopted to minimize the risk of erroneous 

decisions related to parole release for dangerous 

offenders. The state granted the right to call witnesses 

and the ability to effectuate that right through 

attorney-issued subpoenas. The Parole Board's blanket 

refusal to allow questioning of the report writers in 

these proceedings violates due process. 

Respondent argues the claims alleged in Grounds One, Two, and 

Three against the 2007 Board decision are untimely and that 

Petitioner has not fully exhausted the claims alleged in Grounds 

Three, Four, and Five against the 2009 Board decision. 

17 - OPINION AND ORDER -
DISCUSSION 

I. Denial of Good Time Credit Restoration on the 1981 Jackson 

County Sentence - Case No. 3:05-cv-01900-BR 

A. Failure to Re-Parole Petitioner in 20053 

In Grounds Five through Eight, Petitioner alleges, inter alia, 

that the Board violated Petitioner's ex post facto and due process 

rights when it failed to re-parole Petitioner effective February 

2005 pursuant to the Board's decisions on the restoration of good 

time credits in 2003 and 2008. The Board's 2008 decision set forth 

in BAF #15, however, was limited to the issue of restoration of 

good time credits. Moreover, on judicial review, Petitioner's 

challenge was likewise limited; he asserted the denial of 

restoration of good time credits was an ex post facto violation and 

due process violation, and he challenged the Board's refusal to 

allow him to subpoena and examine witnesses about his sentence 

calculations. Petitioner did not address the failure to re-parole 

Petitioner in 2005, indeed to do so would have proved futile as the 

issue was not preserved before the Board. 

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(d) (1). A state prisoner satisfies 

3Because the claims alleged in Grounds One and Two of the 

original petition were ultimately subsumed by the Claims alleged in 

Grounds Five and Six in Case No. 3:05-cv-01900-BR, the Court does 

not address those claims separately. 

18 - OPINION AND ORDER -
the exhaustion requirement by "fairly presenting" his claim to the 

appropriate state courts at all appropriate stages afforded under 

state law. Castille v. Peoples, 489 U.S. 346, 351 (1989); Baldwin 

v. Reese, 541 U.S. 27, 29 (2004); Carrillo-Carrillo v. Coursey, 823 

F.3d 1217, 1220 (9th Cir. 2016); Casey v. Moore, 386 F.3d 896, 

915-16 (9th Cir. 2004). If the petitioner procedurally defaults 

his available state remedies, habeas relief is precluded absent a 

showing of cause and prejudice, or that the failure to consider the 

defaulted claims will result in a fundamental miscarriage of 

justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

To the extent Petitioner's claims in Grounds Five through 

Eight challenge the Board's failure to issue a ruling in BAF #15 to 

re-parole Petitioner in 2005, they are procedurally defaulted 

because Petitioner did not fairly present them in his 

administrative review request to the Board or on judicial review of 

the Board's decision. He cannot now do so because the time for 

filing an administrative review request and judicial review has 

expired. Moreover, Petitioner has not made any showing of cause 

and prejudice or a fundamental miscarriage of justice to excuse his 

procedural default, and, therefore, habeas relief is precluded as 

to these claims. 

19 - OPINION AND ORDER -
B. Due Process Violation for Failure to Explain Board 

Decision 

In Ground Five of Case No. 3:05-cv-01900-BR, Petitioner 

alleges the Board denied his due process rights when it failed to 

provide any reasons for its denial of restoration of good time 

credits in BAF #15. In order for Petitioner to establish that the 

Board's denial of restoration and the state appellate court 

decisions upholding that denial were "contrary to, or an 

unreasonable application of, clearly established federal law as 

determined by the United States Supreme Court," Petitioner must 

show that there is clearly established Supreme Court law on the 

issue presented. Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 

2006), overruled on other grnds by Daire v. Lattimore, 812 F.3d 766 

(9th Cir. 2006). 

The Court notes neither party discusses the claim alleged in 

Ground Five with any particularity. Respondent simply states the 

Board provided Petitioner with a sufficient statement of why his 

good time credits were not restored, citing Swarthout v. Cooke, 562 

U.S. 216, 131 S. Ct. 859, 862-63 (2011), in which the Supreme Court 

held that in the parole release context, a prisoner is entitled to 

no more than an opportunity to speak at the parole hearing and to 

be provided a statement of the reasons why parole was denied. 

Petitioner, for his part, cites cases involving the revocation of 

good time credits in disciplinary proceedings. Neither standard, 

however, applies here. 

20 - OPINION AND ORDER -
At the time Petitioner's parole was revoked in 1984, Oregon 

law required pre-parole good time credits to be forfeited 

automatically upon the violation of the terms of parole unless, as 

already noted, the superintendent recommended restoration and the 

Board agreed. See also Ventris v. Maass, 99 Or. App. 85, 89, 781 

P. 2d 1224 (1989) (" [p) re-parole good time is not . . a 'vested 

right,' but may be lost by violating a condition of parole"), rev. 

denied, 309 Or. 231, 781 P.2d 1224 (1990). Thus, under the 

administrative rules implementing the statute, restoration of good 

time credits was wholly within the discretion of the Board upon a 

favorable recommendation of the Superintendent. 

Petitioner relies on Wolff v. McDonnell, 418 U.S. 539 (1974) 

and similar decisions addressing the situation where an inmate who 

has been granted a statutory right to good-time credit faces 

forfeiture of that right for serious misbehavior. When state law 

creates a liberty interest in the retention of good time credits, 

it is well settled the inmate is entitled to due process 

protections including a written statement by the factfinders as to 

the evidence relied upon and the reasons for the action which is 

sufficient to permit an individual to understand why the government 

acted as it did. Wolff, 418 U.S. at 557; see also Goldberg v. 

Kelly, 397 U.S. 254, 267-68 (1970). 

In contrast to the cases Petitioner cites, however, he 

automatically lost his good-time credits under state law when he 

21 - OPINION AND ORDER -
violated the terms of his parole. The relevant question, then, 

becomes whether Petitioner had any state-created liberty interest 

in the subsequent restoration of those credits as opposed to their 

forfeiture. 

As noted, the statutory decision to restore good-time credits 

upon revocation of parole is wholly within the discretion of the 

Board. While Petitioner argued to the contrary before the Board 

and the Oregon appellate courts, i.e., that restoration of 

Petitioner's good time credit was mandatory, these bodies rejected 

that argument. As such, Petitioner has no state-created liberty 

interest in the restoration of credits. See, e.g., White v. 

Schriro, Case No. CV 05-32312-PHX-FJM, 2007 WL 2410335, at *7 (D. 

Ariz. Aug. 21, 2007) (Arizona release credit statutory scheme 

conferring considerable discretion on the Department of Corrections 

eliminated any state-created liberty interest, distinguishing it 

from Wolff), aff'd 377 Fed.Appx. 618 (9th Cir. 2010); see also Olim 

v. Wakinekona, 461 U.S. 238, 249 (1983) (Hawaii prison regulations 

which placed no substantive limitations on official discretion thus 

created no liberty interest entitled to protection under the Due 

Process Clause) . Accordingly, the Court concludes Petitioner is 

not entitled to the due process protections applicable to 

revocation of good time credits described in Wolff, or to those 

applicable to parole release determinations described in Swarthout. 

22 - OPINION AND ORDER -
For these reasons, the Court concludes that the Board's denial 

of restoration of good time credits and the state appellate court 

decisions upholding that determination were neither contrary to nor 

an unreasonable application of clearly established federal law as 

determined by the United States Supreme Court. Because Oregon law 

conferred unfettered discretion on the Board to determine whether 

to restore good time credits which were automatically forfeited 

upon the violation of terms of parole, Petitioner had no liberty 

interest in the restoration of those credits. According 1 y, 

Petitioner is not entitled to habeas corpus relief on the claim 

alleged in Ground Five. 

C. Ex Post Facto Violation Base Upon Denial of Restoration 

of Good Time Credits 

In Ground Six of Case No. 3:05-cv-01900-BR, Petitioner alleges 

the Board violated his rights under the Ex Post Facto Clause when 

it refused in BAF #15 to restore the good time credits forfeited 

when he violated the terms of his parole in 1984. In his 

memorandum to this Court in support of Ground Six, Petitioner 

largely reiterates the argument he presented to the Oregon Court of 

Appeals that the laws annexed to Petitioner's offense unambiguously 

mandated the restoration of Petitioner's previously accrued good 

time credits. As discussed above, however, the statutory scheme in 

effect at the time of Petitioner's offense and parole violation 

afforded the Board wide discretion and restoration was not 

mandated. The state appellate courts' decision to affirm the 

23 - OPINION AND ORDER -
Board's order is, therefore, supported by the law in effect at the 

time and does not represent an ex post facto violation. 

The Court notes Petitioner also argued to the Oregon Court of 

Appeals that Department of Correction rules required the DOC to 

make a positive recommendation for the restoration of good time 

credits, and that the DOC improperly applied a 1996 rule to issue 

the 2003 memorandum recommending against restoration of the 

credits. As noted above and as argued by Respondent to the Oregon 

Court of Appeals, the Board ultimately disregarded the 2003 

memorandum and acted instead on the 1984 memorandum. At the 2008 

hearing which culminated in the issuance of BAF #15, the Board 

properly considered the 1984 memorandum, applied Or. R. Admin. P. 

255-75-085, and the Board determined that in accordance with all 

the applicable rules and laws, restoration of forfeited good time 

should be denied. The Court concludes this determination did not 

violate the Ex Post Facto Clause, and the Oregon court decisions 

affirming the Board were not contrary to or an unreasonable 

application of clearly established federal law. 

D. Due Process Violation for Failure to Allow Petitioner to 

Subpoena and Question Witnesses 

Finally, also in Ground Six of Case No. 3: 05-cv-01900-BR, 

Petitioner alleges the Board violated his due process rights when 

they refused to allow Petitioner to subpoena witnesses to the 

December 10, 2008, hearing to question them about the calculation 

of Plaintiff's good time credits. As discussed above, however, 

24 - OPINION AND ORDER -
because Plaintiff did not a have state-created liberty interest in 

the restoration of his good time credits, the refusal to allow him 

to subpoena and question witnesses at the hearing did not violate 

his due process rights. 

II. 2001 Board Decision Deferring Release on 1984 Marion County 

Sentence - Case No. 3:05-cv-01900-BR 

A. Ex Post Facto Violation Based Upon Board's Reliance on 

Contract Psychologists 

In Ground Three of Case No. 3: 05-cv-01900-BR, Petitioner 

alleges the Board violated the Ex Post Facto Clause when it relied 

upon contract psychologists rather than a psychiatrist employed by 

the Oregon State Hospital to perform parole consideration 

evaluations before the October 2001 hearing to determine 

Petitioner's parole release eligibility on the 1984 Marion County 

sentence. 

Pe ti ti oner committed the er imes resulting in his dangerous 

offender sentence in early 1984. At that time, Oregon law required 

that a dangerous offender be given "a complete physical, mental and 

psychiatric examination by a psychiatrist appointed by the 

Superintendent of the Oregon State Hospital" before a parole 

consideration hearing. Or. Rev. Stat. § 144.226(1) (1983). In 

addition, the statute directed the examining psychiatrist to 

determine whether "the convicted person has any mental or emotional 

disturbance or deficiency or condition predisposing the person to 

the commission of any crime to a degree rendering the examined 

25 - OPINION AND ORDER -
person a menace to the health or safety of others.'' Or. Rev. Stat. 

§ 114. 228 (2) (1984). The appointed examining psychiatrist was also 

required to include in the report ''any other information which the 

examining psychiatrist believes will aid the State Board of Parole 

in determining whether the examined person is eligible for release" 

and ''the report shall also state the progress or changes in the 

condition of the examined person as well as any recommendation for 

treatment." Or. Rev. Stat. § 144.226(2) (1984). 

In 1991, the Oregon Legislature amended§ 144.226 to authorize 

the Board to hire its own psychologists to produce and submit the 

report previously required from the appointed Oregon State Hospital 

expert. The new law provided that before a parole release hearing, 

a person sentenced as a dangerous offender must be "given a 

complete mental and psychiatric or psychological examination by a 

psychiatrist or psychologist appointed by the [Board].'' Or. Rev. 

Stat. § 144.226(1) (1991). The examining psychiatrist or 

psychologist 

findings and 

was then required to 

conclusions relative 

"file 

to 

a written report or 

the examination [. J" 

Petitioner argues that the change in law disadvantaged him because 

the statute in effect at the time he committed his crimes promised 

medical diagnosis and a prescription for treatment, that the Board 

appointed psychologists were not impartial, and that the evaluators 

were no longer required to be medically trained but instead 

doctorally educated evaluators. 

26 - OPINION AND ORDER -
To establish an ex post facto claim, Petitioner must show that 

the Board's retroactive application of § 144.226(1) "created a 

'sufficient risk' of increasing the punishment attached to 

[petitioner's] crimes." Himes v. Thompson, 336 F.3d 848, 854 (9th 

Cir. 2003) (citing Weaver v. Graham, 450 U.S. 24, 29, (1981) and 

Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509 (1995)); see also 

Gamer v. Jones, 529 U.S. 244, 251 (2000) (a retroactive procedural 

change violates the Ex Post Facto Clause when it "creates a 

significant risk of prolonging [an inmate's] incarceration."). A 

''speculative'' or ''attenuated'' risk of prolonged incarceration is 

insufficient to establish a violation of the Ex Post Facto Clause. 

Morales, 514 U.S. at 509. ''Changes in the law that are merely 

procedural will withstand scrutiny." Brown v. Palmateer, 379 F.3d 

1089, 1093 (9th Cir. 2004). 

The Board rejected Petitioner's ex post facto claim based upon 

his failure to show that the use of a psychologist rather than a 

psychiatrist to examine Petitioner was somehow more onerous to 

Petitioner's position. Resp. Exh. 103, p. 8. Petitioner has not 

shown this decision is contrary to or an unreasonable application 

of clearly established federal law and is entitled to deference. 

Indeed, the Court concludes the change in law was procedural, and 

at most, any risk of prolonged incarceration is wholly speculative 

and attenuated. Accordingly, Petitioner is not entitled to relief 

on the claim alleged in Ground Three. 

27 - OPINION AND ORDER -
B. Ex Post Facto Violation Based Upon Board's Reliance on 

Later Enacted Standard to Defer Parole Consideration 

In Ground Four of Case No. 3:05-cv-01900-BR, Petitioner 

alleges the Board committed an ex post facto violation when it 

relied upon a standard other than the one in effect in 1984 to 

defer Petitioner's parole consideration date. As noted, at the 

time Petitioner committed the crimes resulting in his dangerous 

offender sentence, Oregon law required the examining psychiatrist 

to opine whether "the convicted person has any mental or emotional 

disturbance or deficiency or condition predisposing the person to 

the commission of any crime to a degree rendering the examined 

person a menace to the health and safety of others.'' Or. Rev. 

Stat. § 144. 226 (2) (1983) (emphasis added). When Petitioner's 

examination before the 2001 hearing took place, the new law 

required the examining psychiatrist or psychologist to report 

whether "the convicted person has any mental or emotional 

disturbance, deficiency, or disorder predisposing the person to the 

commission of any crime to a degree rendering the examined person 

a danger to the heal th or safety of others." Or. Rev. Stat. § 

144. 226 (2) (2001) (emphasis added). 

Petitioner argues applying the new standard of "danger" 

instead of "menace" stripped out the objective ability of a 

dangerous offender to obtain parole release because any personality 

disorder could be said to present a danger to the public. Again, 

however, the Court concludes any risk of prolonged incarceration as 

28 - OPINION AND ORDER -
a result of this change in language is wholly speculative and 

attenuated. Likewise, the Board rejected this argument in the 

Administrative Review Response, a decision the Oregon appellate 

courts affirmed. Petitioner has not established this was a 

decision that was contrary to or an unreasonable application of 

clearly established federal law. 

C. Due Process Violations 

In Ground Five of Case No. 3:05-cv-01900-BR, Petitioner 

alleges due process violations when the appointed psychologists 

relied on information stricken from the presentence investigation 

report and when the Board did not allow Pe ti ti oner to cross-examine 

the evaluators. Where state law creates a liberty interest in 

parole, the Supreme Court has held that ''the Due Process Clause 

requires fair procedures for its vindication-and federal courts 

will review the application of those constitutionally required 

procedures." Swarthout, 131 S. Ct. at 862. The procedures 

required to satisfy due process requirements in the parole context, 

however, are minimal, and include only an opportunity to be heard 

and provision of a statement of the reasons why the parole was 

denied. Id. (citing Greenholtz v. Inmates of Neb. Penal and 

Correctional Complex, 442 U.S. 1, 16 (1979)). Further, "[b]ecause 

the only federal right at issue is procedural, the relevant inquiry 

is what process [the petitioner] received, not whether the state 

court decided the case correctly." Id. at 863 (emphasis supplied). 

29 - OPINION AND ORDER -
Assuming without deciding here that Oregon law creates a 

liberty interest in parole, Petitioner received at least the 

minimal amount of required process: the Board provided Petitioner 

with a copy of the examining psychologists' written reports before 

the parole hearing, Petitioner was allowed to present evidence and 

argument before and at the hearing, and the Board notified 

Petitioner in writing of the reasons why his parole release date 

was deferred. 

On this record, the Court concludes the Board did not violate 

Petitioner's rights under the Due Process Clause, and the decision 

denying his release on parole was not contrary to or an 

unreasonable application of clearly established federal law. 

Accordingly, Petitioner is not entitled to habeas corpus relief 

under 28 U.S.C. § 2254. 

III. 2007 and 2009 Board Decisions Deferring Release on 1984 Marion 

County Sentence - Case No. 2:15-cv-00738-BR 

In Case No. 2:15-cv-00738-BR, Respondent contends that 

Petitioner's challenges to the 2007 Board decision are untimely 

under 28 U.S.C. § 2244(d), which provides a one-year statute of 

limitations for habeas corpus petitions filed pursuant to 28 U.S.C. 

§ 2254. Petitioner counters that because he attempted to file his 

claims in Smith v. Hill, Case No. 3:05-cv-01900-BR within a year of 

the exhaustion of his claims against the Board's refusal in 2008 to 

reinstate good time credits, the claims against the 2007 Board 

decision should be considered timely. Petitioner also argues that, 

30 - OPINION AND ORDER -
to the extent his claims against the 2007 Board decision are 

''technically late,'' such untimeliness was caused either by this 

Court or by error on the part of Petitioner's federal habeas 

counsel. In any event, Petitioner argues that such error should be 

excused under the cause and prejudice doctrine, equitable tolling 

doctrine, and/or the protective petition doctrine. 

"Although a procedural issue such as the statute of 

limitations should ordinarily be resolved first, the statute of 

limitations is not jurisdictional, and 'judicial economy sometimes 

dictates reaching the merits [of a claim) if the merits are easily 

resolvable against a petitioner while the procedural bar issues are 

complicated. '" Soto v. Ryan, 2015 WL 10761165, at *3 (D. Ariz. 

Dec. 24, 2015) (quoting Barrett v. Acevedo, 169 F.3d 1155, 1162 

(8th Cir. 1999)). Here, the Court finds it is more efficient to 

resolve first Petitioner's claims against the 2007 Board decision 

on the merits rather than to address the complex statute of 

limitations issue as a preliminary matter. 

The Court notes Respondent also argues that the claims alleged 

in Grounds Three, Four, and Five of Case No. 3: 15-cv-007 38-BR 

against the Board's 2009 decision were not fully exhausted at the 

time Petitioner filed his Petition for Writ of Habeas Corpus in 

this action and, therefore, the Court should deny those claims. 

Although Petitioner does not directly address Respondent's 

exhaustion argument, the Court concludes it need not address the 

31 - OPINION AND ORDER -
exhaustion issue because Petitioner is not entitled to relief on 

the merits of his claims against the 2008 decision in any event. 

See 28 U.S.C. § 2254(b) (2) ("[a]n application for writ of habeas 

corpus may be denied on the merits, notwithstanding the failure of 

the applicant exhaust the remedies available in the courts of the 

State"). 

A. Ex Post Facto Claims Against the 2007 and 2009 Board 

Decisions 

In Ground Three of Case No. 3: 15-cv-007 38-BR, Pe ti ti oner 

alleges the Board violated the Ex Post Facto Clause in 2007 and 

again in 2009 by deferring parole on his 1984 Marion County 

conviction based upon a later-enacted standard that allowed Board 

psychologists to provide the mental health evaluation when the 

standard in effect at the time of Petitioner's crimes required a 

psychiatrist appointed by the Oregon State Hospital to conduct the 

evaluation and when the applicable standard required a more 

exacting substantive standard. As discussed above, this Court 

rejected the identical claim against the Board's 2001 decision 

deferring release on Petitioner's 1984 Marion County conviction. 

For those same stated reasons, Petitioner is not entitled to habeas 

corpus relief against the 2007 and 2009 Board decisions. 

B. Due Process Claims Against the 2009 Board Decision 

In Grounds Four and Five of Case No. 3:15-cv-00738-BR, 

Petitioner argues the Board denied him due process and First 

Amendment rights when it issued the 2009 deferral order based upon 

32 - OPINION AND ORDER -
his request that the psychological evaluation be monitored or 

recorded and based upon the denial to allow Petitioner to call and 

question witnesses. In its written opinion, the Oregon Court of 

Appeals first determined that state law did not provide a basis for 

Petitioner to subpoena witnesses for a parole consideration 

hearing, a determination which is not subject to federal habeas 

review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) {"it is 

not the province of a federal habeas court to reexamine state-court 

determinations on state-law questions"). 

The Oregon Court of Appeals, nevertheless, went on to reject 

Petitioner's Fourteenth Amendment due process claims. The court 

first recited the current test for determining what process is due 

for a parole release hearing under the Fourteenth Amendment as 

announced by the Supreme Court in Swarthout: a petitioner with a 

state-created liberty interest in parole "'received adequate 

process when he was allowed an opportunity to be heard and was 

provided a statement of the reasons why parole was denied. '" 

Smith, 268 Or. App. at 469 (quoting Swarthout, 131 S. Ct. at 862) 

{additional internal quotations omitted) . Applying this standard, 

the Oregon Court of Appeals held: 

Assuming, without deciding, that Oregon has created a 

liberty interest in petitioner's parole, we conclude 

that, under the holding of Swarthout, the ability to 

subpoena witnesses is not a requirement for a 

constitutionally adequate parole consideration hearing 

under ORS 144. 228. Accordingly, the board did not 

violate petitioner's due process rights under the 

Fourteenth Amendment when it quashed the subpoenas and 

33 - OPINION AND ORDER -
deferred petitioner's parole consideration for another 

two years. 

Id. This Court concludes the Oregon Court of Appeals' decision 

that Petitioner received all of the process due under the 

Fourteenth Amendment was not contrary to or an unreasonable 

application of clearly established federal law. 

Finally, although Petitioner also alleges violation of his 

First Amendment rights with respect to Ground Four, Petitioner does 

not cite any clearly established federal law on the interplay of 

First Amendment freedom-of-speech rights with due process rights in 

the context of a parole release hearing. To the extent Petitioner 

raised this claim in his petition for judicial review, the Court 

notes the Oregon Court of Appeals declined to address this 

argument. See Smith, 268 Or. App. at 469 n.16 (" [w]e reject 

petitioner's other contentions without published decision"). 

Because Petitioner has not demonstrated that the decision was 

contrary to or an unreasonable application of clearly established 

federal law, the Court concludes Petitioner is not entitled to 

habeas corpus relief on the claims alleged in Grounds Four and Five 

against the Board's 2009 decision deferring parole release. 

C. Due Process Claims Against the 2007 Board Decision 

In Ground One of Case No. 3:15-cv-00738-BR, Petitioner alleges 

the Board denied him his First Amendment right to free speech and 

Due Process pursuant to the Fourteenth Amendment when the Board 

denied parole in 2007 based upon Petitioner's conduct which 

34 - OPINION AND ORDER -
questioned the validity of the evaluation and testing process. In 

Ground Two, he alleges the Parole Board denied him due process in 

2007 when it deferred his parole based upon unreliable evidence and 

when it denied Petitioner's request to call and question witnesses 

on the factual issues. 

As discussed above, the only process to which Petitioner was 

due in connection with his parole release hearing was the 

opportunity to be heard and a statement of the reasons why release 

was not granted. Swarthout, 131 S. Ct. at 862. Petitioner 

received that process as evidenced by the Board's explanation in 

BAF #13 and ARR #10. Accordingly, the Court concludes Petitioner 

is not entitled to habeas corpus relief on the claims alleged in 

Grounds One and Two against the Board's 2007 decision. 

CONCLUSION 

For these reasons, the Court DENIES the Amended Petition for 

Writ of Habeas Corpus (ECF No. 83) in Case No. -cv-01900-BR and 

the Petition for Writ of Habeas Corpus (ECF No. 1) in Case No. 

3:15-cv-00738-BR, and DISMISSES these actions. 

I I I 

I I I 

I I I 

I I I 

I I I 

I I I 

35 - OPINION AND ORDER -

3:05
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. 

I 2- /\-- DATED this day of September, 2017. 

ANNA~9/~ United States Senior District Judge 

36 - OPINION AND ORDER -