IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHAEL ROBERT HA YNES, 

Petitioner, 

v. 

OREGON BOARD OF PAROLE AND 

POST-PRISON SUPERVISION, et al., 

Respondents. 

KING, Judge. 

Case No. 2:16-cv-00128-KI 

OPINION AND ORDER 

Petitioner, an inmate at the Eastern Oregon Correctional Institution, brings this habeas corpus 

proceeding pursuant to 28 U.S.C. § 2254, challenging the Oregon Board of Parole and Post-Prison 

Supervision's holding in a murder review hearing that he is not capable of rehabilitation within a 

reasonable period of time. For the reasons set forth below, this Court denies Petitioner's Habeas 

Petition (ECF No. 1 ). 

BACKGROUND 

On December 19, 1986, Petitioner pied guilty to a single count of Aggravated Murder. Resp't 

Ex. 101. His conviction arose out of the murders of Petitioner's estranged girlfriend (Sarah Mishler) 

1 - OPINION AND ORDER 
and her father (Frank Mishler). The trial court sentenced Petitioner to a life sentence, with a 

minimum thirty-year term of incarceration without the possibility of parole, release on work release, 

or any form of temporary leave or employment. Id. at 3-4. 

On March 9, 2010, Petitioner filed a petition for a murder review hearing pursuant to Or. 

Rev. Stat. § 163.105, seeking to change the terms of his confinement to life imprisonment with the 

possibility of parole, release to post-prison supervision, or work release. Resp't Ex. 105 at 154; see 

Or. Rev. Stat. § 163.105(2). Prior to the hearing, the Oregon Board of Parole and Post-Prison 

Supervision (Board) provided Petitioner with a "Hearing Notice & Notice of Rights Packet." Resp't 

Ex. 105 at 5-10, 157. 

On November 10, 2010, Petitioner appeared before the Board for his review hearing. Resp't 

Ex. 105 at 155-331. Petitioner was represented by counsel, offered documentary evidence, and 

testified concerning the details of his crime, his disciplinary record, and the steps he has taken to 

rehabilitate himself. Id. at 191-310. Petitioner's mother, a Washington County Deputy District 

Attorney, and victim representative Gary Scrutton also testified. 

At the conclusion of the hearing, the Board issued Board Action Form (BAF) #4 holding that 

Petitioner "is not likely to be rehabilitated within a reasonable period of time," and that he "can 

petition for a change in the terms of confinement in no less than four years." Resp't Ex. 105 at 333 

(emphasis added). In its formal Order, the Board elaborated that Petitioner (1) is unlikely to conform 

his conduct to the rules of the community; (2) has an umealistic and short-sighted attitude towards 

the role of alcohol in the crime, (3) has not established "a baseline for reformation;" and ( 4) does not 

· understand the impact of his actions on the lives of the victims' family. Id. at 339-41. The Board 

explained: 

2 - OPINION AND ORDER 
The Board concludes that offender has not met his burden of proof under 

ORS 163 .105 and has not established that he is capable of rehabilitation within a 

reasonable period of time, and also finds that it is not reasonable to expect that 

offender would be granted a change in the terms of confinement before four years 

from the date the petition is denied. The Board considered the factors set out in OAR 

255-032-0020 and in OAR 255-062-0016. 

1. Offender's disciplinary history is poor. Inmate's recent period of clean 

conduct is unfortunately overshadowed by a lengthy history of serious institutional 

misconduct, including multiple incidents of assaultive conduct. Most notable to the 

Board is that inmate displayed an attitude of hostility, lack of accountability, and 

minimization towards his disciplinary infractions, as well as a sense of victimization 

that he appeared to feel as a result of the institutional hearings process .... 

2. Inmate testified that prior to committing the murders he had been 

consuming alcohol .... However, inmate is disturbingly indifferent to the role 

alcohol may play in his life as a trigger for future misconduct. ... 

3. Off ender's written submissions and testimony reveal a troubling 

failure to candidly confront the facts of his crime and come to terms with his 

responsibility for it. .... 

Offender's account of the events surrounding the crime lacks credibility .... 

. . . . The Board concludes that offender is unable to provide a coherent 

account of his crime, and to rigorously examine and confront the psychological and 

emotional factors that led him to commit (or at least facilitated the commission of) 

the murders. He maintains consistent denial of responsibility and deflection of blame. 

4. Finally, the Board finds that offender expressed very little empathy or 

remorse in regard to the victims. 

Resp't Ex. 105 at 339-42. 

Petitioner sought administrative review which the Board denied in Administrative Review 

Request (ARR) #3, as follows: 

In your administrative review request you make a number of claims of error 

by the Board. The Board has reviewed fully the request for administrative review and 

denies relief on each of the claims raised. In so concluding, the Board has determined 

that the claims are not supported by the factual record, are not sufficiently developed 

or explained, are without merit in light of the record and the Board's findings of fact 

3 - OPINION AND ORDER 
and conclusions of law, or are meritless due to some combination of these factors. 

The Board discusses a few of the claims below. 

You appear to allege that the Board acted outside its authority in allowing a 

representative of the committingjurisdiction, as well as someone other than the nextof-kin to your victims, to make statements at the hearing. The Board finds that ORS 

144.750(2)(b) mandates that both the victim and the district attorney "have the right 

to appear at a hearing conducted by the board and may submit ... oral statements 

adequately and reasonably expressing any views concerning the crime and the 

offender." ORS 144. 750( 4) further specifies that "victim" includes "a representative 

selected by the victim." Doris Scrutton, sister and next-of-kin to Frank Mishler and 

aunt of victim Sarah Mishler, requested that her son Gary Scrutton speak on her 

behalf at the hearing. . . . 

You next allege that the Board violated OAR 255-032-0035 when it found 

that it is not reasonable to expect that you will be granted a change in the terms of 

confinement before four years from the date the petition was denied. OAR 255-032-

003 5, until amended in 2011, stated that following denial of a request for a change 

in the terms of confinement, the inmate may petition again"[ n ]ot less than two years 

after the denial," and that "[t]urther petitions for change may be made at intervals of 

not less than two years thereafter." As noted above, the Board applied ORS 144.285, 

ORS 163.105(4), and OAR255-062-0011(1) to your case. The Board finds that it did 

not err in applying the 2009 statutory and rule changes because they do not conflict 

with former OAR 255-032-0035. While the former rule specifies a minimum period, 

it does not prohibit a longer interval. 

Id. at 380-81. 

Petitioner petitioned for judicial review. The Oregon Court of Appeals affirmed the Board's 

Order without opinion and the Oregon Supreme Court denied review. Resp't Exs. 111, 112. 

STANDARDS 

Pursuant to 28 U.S.C. § 2254(d), a petition for writ of habeas corpus filed by a state prisoner 

shall not be granted, with respect to any claim that was adjudicated on the merits in state court, 

unless the adjudication resulted in a decision that was "contrary to, or involved an unreasonable 

4 - OPINION AND ORDER 
application of, clearly established Federal law;" or "resulted in a decision that was based on an 

unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(l) 

& (2); Harrington v. Richter, 562 U.S. 86, 100 (2011); White v. Woodall, 134 S.Ct. 1697, 1702 

(2014). 

DISCUSSION 

Pursuant to Or. Rev. Stat. § 163 .105(2), when a prisoner convicted of aggravated murder 

completes his minimum term of confinement, he may petition the Board for a hearing "to determine 

whether or not [he] is likely to be rehabilitated within a reasonable period of time." If the Board finds 

the prisoner is likely to be rehabilitated within a reasonable period of time, the terms of the prisoner's 

confinement are converted "to life imprisonment with the possibility of parole, release to post-prison 

supervision or work release," and the Board may set a release date. Or. Rev. Stat. § 163.105(3). "If 

the Board finds that the inmate is not capable of rehabilitation, the Board shall deny the relief 

sought" and "may not grant a subsequent hearing that is less than two years, or more than 10 years 

from the date the petition is denied." Or. Admin. R. 255-032-0035(1). 

Petitioner challenges the Board's decision finding him not likely to be rehabilitated within 

a reasonable period of time, and setting his next hearing no sooner than November 2014. Petitioner 

alleges that the Board violated his due process and equal protection rights as follows: (1) the Board 

refused to "remain within [the] statutory requirements" of Or. Rev. Stat.§ 163.105 (1985); (2) the 

Board refused to follow Or. Admin. R. 255-032-0035 (2010) in effect at the time of the hearing; (3) 

the Board's decision "is not based on Petitioner's current characteristics;" and (4) there was 

insubstantial evidence to support the Board's decision to permit Gary Scrutton to represent the 

victims at the hearing. Habeas Pet. at 3. 

5 - OPINION AND ORDER 
Respondent does not contend that Petitioner procedurally defaulted his available state 

remedies. See Resp't Resp. at 5. Rather, Respondent argues that Petitioner's Habeas Petition should 

be denied because (1) habeas relief is not available to remedy a violation of state law, and (2) the 

procedural protections in a parole board hearing are minimal and Petitioner received all the process 

he was due. Respondent concludes that the state courts' affirmance of the Board action is neither 

contrary to, nor an unreasonable application of, clearly established federal law. This Court agrees. 

I. Grounds One and Three 

In Grounds for Relief One and Three, Petitioner challenges the merits of the Board's decision 

on the basis that the Board refused "to remain within [the] statutory requirements" of Or. Rev. Stat. 

§ 163 .105 (1985), and failed to consider Petitioner's "current characteristics" rather than those he 

possessed when he committed the murders and/or engaged in misconduct at the correctional 

institution. Habeas Pet. at 2. 1 Petitioner argues that the Board relied on "unchangeable factors of his 

segregation placements since 1993 ... not knowing if [the] disciplinary reports were even his." 

Pet'r's Br. at 8; see also Resp't Ex. 109 at 8-11. According to Petitioner, rather than deciding 

whether he is "likely to be rehabilitated within a reasonable period ohime," the Board substituted 

a harsher burden requiring him to prove he "achieved rehabilitation." Id. 

Petitioner's Grounds One and Three are properly characterized as a due process challenge 

to the merits of the Board's decision on the basis that it lacks "some evidence" to support it. See 

Pearson v. Muntz, 639 F.3d 1185, 1189-91 (9th Cir. 2011) (challenging parole unsuitability decision 

1 The Court notes that although Petitioner relies upon the 1985 version of Or. Rev. Stat. 

163 .105, the statute has not changed in terms of requiring the Board to consider "whether or not 

the prisoner is likely to be rehabilitated within a reasonable period ohime." See 1985 Or. Laws, 

Ch. 3, § 1. 

6 - OPINION AND ORDER 
for lack of"some evidence"). In Swarthout v. Cooke, 562 U.S. 216, 220 (2011), the Supreme Court 

held that there is no right under the United States Constitution to be conditionally released on parole 

before the expiration of a valid sentence. However, if state law creates a protected liberty interest 

to parole, the Due Process Clause requires fair procedures. Id. The Ninth Circuit has held that Or. 

Rev. Stat.§ 163.105 creates a protected liberty interest. Miller v. Oregon Bd. of Parole and Post 

Prison Super., 642 F.3d 711, 716 (9th Cir. 2011). 

In the parole context, the procedural protections are "minimal," and require only that the 

state prisoner be given the opportunity to be heard and a statement of reasons why parole was denied. 

Id. at 220; Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011); Roberts v. Hartley, 640 F.3d 1042, 

1046 (9th Cir. 2011). lfthe state affords the procedural protections required by Cooke, "that is the 

end of the matter for purposes of the Due Process Clause." Roberts, 640 F .3d at 1046; Cook v. 

Carey, 466 F. App'x 629, at* 1 (9th Cir. 2012). 

In Miller, the Ninth Circuit applied the holding in Cooke to the Oregon Parole Board's 

decision that a prisoner was not likely to be rehabilitated within a reasonable time: 

Here, as in Cooke, Miller was afforded access to his records in advance of the 

hearings, and he was given the opportunity to submit information to the Board and 

to make a statement during the hearing. And, although the Board's initial decision 

was not explained, Miller was eventually provided a written statement of the reasons 

why he was denied early eligibility for parole. After Cooke, that is the beginning and 

the end of the inquiry into whether he received due process, so we need look no 

further to affimi the district court's denial of Miller's petition. 

642 F.3d at 717. 

Accordingly, because Petitioner has not demonstrated that he was denied the minimal 

procedural protections set forth in Cooke, the Board did not violate his due process rights in reaching 

its decision. Petitioner was provided notice of the hearing, was represented by counsel, offered 

7 - OPINION AND ORDER 
documentary and testimonial evidence, and the Board provided a written decision. The state court's 

rejection of Petitioner's due process claims is therefore neither contrary to, nor an unreasonable 

application of clearly established federal law. 

II. Ground Two 

Ground Two pertains to the Board's decision to set Petitioner's next murder review hearing 

four years from the date of its 2010 decision. Petitioner alleges that the Board violated his right to 

due process and equal protection by refusing to base this decision on Or. Admin. R. 255-032-0035 

(2010). Habeas Pet. at 2; Pet'r's Br. at 10-11. The Board addressed this retroactivity issue in ARR 

#4 as follows: 

.... [Oregon Administrative Rule] 255-032-0035, until amended in 2011, stated that 

following denial of a request for a change in the terms of confinement, the inmate 

may petition again "[n]ot less than two years after the denial," and that "[f]urther 

petitions for change may be made at intervals of not less than two years thereafter." 

As noted above, the Board applied ORS 144.285, ORS 163.105(4), and OAR 255-

062-0011(1) to your case. The Board finds that it did not err in applying the 2009 

statutory and rule changes because they do not conflict with former OAR 255-032-

0035. While the former rule specifies a minimum period, it does not prohibit a longer 

interval. 

Resp't Ex. 105 at 381. 

At the time of Petitioner's murder review hearing, Or. Rev. Stat. § 144.285(l)(a) (2009) 

provided that if the Board denies a petition, it "may not grant the prisoner a subsequent hearing that 

is less than two years, or more than 10 years, from the date the petition is denied." Petitioner has 

failed to demonstrate how the Board's failure to apply Or. Admin. R. 255-032-0035 (2010), which 

did not prohibit the Board from postponing his next murder review hearing for four years violated 

due process. 

8 - OPINION AND ORDER 

--------
To the extent that Petitioner is raising an ex post facto claim, it does not warrant habeas relief 

because he fails to point to any retroactive change in the law which created a significant risk of 

increasing the measure of punishment attached to his crime. See Garner v. Jones, 529 U.S. 244, 251, 

255-56 (2000) (extension of intervals between parole considerations did not violate Ex Post Facto 

Clause); Gilman v. Brown, 814 F.3d 1007, 1016 (9th Cir. 2016) ("a decrease in the frequency of 

parole hearings-without more-is not sufficient to prove a significant risk of lengthened 

incarceration."); see also Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016), cert. denied, 137 

S. Ct. 645 (2017) (habeas is not available if success on claim would not necessarily lead to the 

petitioner's immediate or earlier release from confinement). To the extent Petitioner is simply 

arguing that the Board misapplied state law, habeas relief is not warranted. Roberts, 640 F.3d at 

1046. For all of these reasons, the state courts' rejection of this claim is neither contrary to, nor an 

unreasonable application of clearly established federal law. 

III. Ground Four 

In Ground Four, Petitioner alleges that the Board violated his due process and equal 

protection rights by allowing "Gary Scrutton to represent victims" at the hearing. Habeas Pet. at 2; 

Pet'r's Br. at 12-13; Resp't Ex. 109 at 18-19; see Or. Admin. R. 255-032-0025(4) & (5) (listing 

witnesses allowed to testify at murder review hearing). The Board denied Petitioner's challenge to 

Scrutton's testimony on the basis that a victim or a representative selected by the victim has the 

statutory right to appear at a murder review hearing. The Board explained that Doris Scrutton, sister 

and next-of-kin to Frank Mishler and aunt of victim Sarah Mishler, requested that her son Gary 

Scrutton speak on her behalf at the hearing. 

9 - OPINION AND ORDER 
Resp't Ex. 105 at 380. Petitioner's challenge to this decision is, at best, an allegation that the Board 

violated state law. Accordingly, habeas relief is not warranted. Roberts, 640 F.3d at 1046 

CONCLUSION 

Based on the foregoing, this Court denies Petitioner's Petition for Writ of Habeas Corpus 

(ECF No. 1). Because Petitioner has not made a substantial showing of the denial of a constitutional 

right, a Certificate of Appealability is DENIED. See 28 U.S.C. § 2253(c)(2). 

IT IS SO ORDERED. 

DATED this /~day of April, 2017. 

M~~?n~ ~ . Garr M. King 

United States District Judge 

10 - OPINION AND ORDER