Miller v. OR Parole Board, et al

Filing

FILED OPINION (RICHARD A. PAEZ, RICHARD R. CLIFTON and LARRY A. BURNS) AFFIRMED. Judge: LAB Authoring. FILED AND ENTERED JUDGMENT. [7614521]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS RAY MILLER,
Petitioner-Appellant,
v.
OREGON BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent-Appellee.





No. 07-36086
D.C. No.
CV-05-00440MWM
OPINION

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
October 6, 2010—Portland, Oregon
Filed January 18, 2011
Before: Richard A. Paez and Richard R. Clifton,
Circuit Judges, and Larry A. Burns, District Judge.*
Opinion by Judge Burns

*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.

909

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MILLER v. OREGON BOARD OF PAROLE

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COUNSEL
Anthony D. Bornstein, Office of the Federal Public Defender,
Portland, Oregon, for the petitioner-appellant.

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MILLER v. OREGON BOARD OF PAROLE

Justice Rillera, Office of the Oregon Attorney General,
Salem, Oregon, for the defendant-appellee.

OPINION
BURNS, District Judge:
We held in Hayward v. Marshall, 603 F.3d 546 (9th Cir.
2010) (en banc), that only state law can give rise to a liberty
interest in parole that is entitled to the protections of the Due
Process Clause of the Constitution. This habeas appeal presents the question whether an Oregon statute creates a liberty
interest in early eligibility for parole. We hold that it does. We
also hold that the Oregon Board of Parole (“Board”) did not
violate Appellant’s due process rights when it denied him that
eligibility.
BACKGROUND
Douglas Miller was convicted of aggravated murder by an
Oregon jury in August 1982 for hiring another man to kill his
wife. He received an indeterminate life sentence with a 30year minimum term during which he is not eligible for parole.
He is still serving that minimum term.
Twenty years into his sentence Miller became eligible for
his first “murder review hearing.” This hearing, provided for
under Oregon law, permits an individual who has been convicted of aggravated murder the opportunity to show that he
is “likely to be rehabilitated within a reasonable period of
time.” Or. Rev. Stat. § 163.105(3) (1981). If the individual
can make that showing, his sentence is converted to life
imprisonment with the possibility of parole and he immediately becomes parole-eligible. Two sections of the murder
review statute are pertinent:

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(3) At any time after 20 years from the date of imposition of a minimum period of confinement [for
soliciting murder] . . . 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 . . . .
(a) The prisoner shall have the burden of proving
by a preponderance of the evidence the likelihood of
rehabilitation within a reasonable period of time; and
...
(4) If, upon hearing all the evidence, the board 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.
Or. Rev. Stat. § 163.105(3)-(4) (1981). To be clear, these particular sections speak only to early eligibility for a parole
hearing for persons convicted of aggravated murder; they
promise nothing as far as actually being paroled after the
hearing.
For his murder review hearing, Miller submitted a multitude of documents to the Board of Parole to demonstrate his
likelihood for rehabilitation within a reasonable period of
time. These included: a written statement in which he admitted to his crime; a lengthy and generally favorable psychological report; a statement addressing particular parole criteria;
letters he wrote in December 1993 to the district attorney and
to the victim’s family in which he accepted responsibility for

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the murder; letters he wrote terminating his pending habeas
petition; proof of his educational and professional achievements while in custody; and letters of support from pastors,
a prospective employer, prison staff, fellow inmates, his new
wife, and members of the community. At the hearing, the
Board engaged Miller in an extended discussion of the circumstances of his crime, which Miller attributed to a “bad
marriage and the issue of financial gain.” Miller added that he
had “difficulty emotionally connecting with people.” The victim’s sister also appeared at the hearing, and urged the Board
to require Miller to serve the full length of his minimum sentence.
The Board deliberated, and, without elaboration, denied
Miller’s request for an early parole hearing. Miller then
sought administrative review of the Board’s decision, which
under Oregon law is equivalent to a motion for reconsideration. On review, the Board upheld its decision, this time offering the following explanation:
After considering all of the evidence presented at the
hearing, the board concluded that you are not taking
responsibility for the crime in a way that would
show that you are likely to be rehabilitated within a
reasonable period of time. You arranged for your
wife to be killed so you could get the insurance
money. You also did not want to pay for the
expenses that a divorce would involve. You minimized your involvement in the crime during the
hearing by denying it was your intent that the murder
be carried out. The board is to consider the totality
of the circumstances and the evidence presented at
the murder review hearing before making its decision. When all of this was taken into consideration,
the board felt that you had not satisfied your burden.
Miller appealed to the Oregon Court of Appeals, which
affirmed without issuing an opinion. Miller v. Bd. of Parole

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and Post-Prison Supervision, 95 P.3d 756 (Or. Ct. App.
2004). The Oregon Supreme Court denied review. Miller v.
Bd. of Parole and Post-Prison Supervision, 108 P.3d 1173
(Or. 2005).
Miller next filed a habeas corpus petition under 28 U.S.C.
§ 2254, alleging that the Board violated his due process rights
because it lacked “some evidence” to support its finding that
he could not be rehabilitated within a reasonable period of
time. The district court disagreed and denied relief, finding
“there is certainly ‘some evidence’ supporting the Board’s
decision.” Miller v. Oregon Bd. of Parole and Post-Prison
Supervision, 2007 WL 4245912, *4 (D. Or. 2007). We have
jurisdiction pursuant to 28 U.S.C. § 1291.
In the time between the district court’s denial of Miller’s
habeas petition and our review of his appeal, Ninth Circuit
law has changed. We explain below the intervening change,
its application to Miller’s habeas petition, and the reasons we
affirm the district court’s denial of relief.
DISCUSSION
We review de novo a district court’s denial of habeas relief.
Bean v. Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998).
Habeas relief is warranted when an individual is in custody
“in violation of the Constitution or laws or treaties of the
United States” and the state court’s adjudication of the merits
of his or her claim “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of
the United States; or [ ] resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254. In the absence of a reasoned state court decision on
a prisoner’s claim, we independently review the record. See
Himes v. Thompson, 336 F.3d 848, 852-53 (9th Cir. 2003).

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A.

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Miller’s Liberty Interest in Early Eligibility for a
Parole Hearing

[1] We first address whether Miller has a liberty interest in
becoming parole-eligible early, that is, before the expiration
of the minimum term of his sentence. The Constitution does
not, itself, guarantee a liberty interest in parole, but a state’s
substantive parole scheme may create one that is enforceable
under the Due Process Clause. See Greenholtz v. Inmates of
Neb. Penal and Corr. Complex, 442 U.S. 1, 12, 16 (1979)
(Due Process Clause applies to discretionary parole-release
determinations made by the Nebraska Board of Parole); Bd.
of Pardons v. Allen, 482 U.S. 369, 370-71 (1987) (Montana
parole scheme created a federally protected liberty interest in
parole). Our en banc court recently reiterated this principle in
Hayward: “If there is any right to release on parole, or to
release in the absence of some evidence of future dangerousness, it has to arise from substantive state law creating a right
to release.” 603 F.3d at 555.
[2] A state parole statute establishes a protected liberty
interest in parole when it uses language that creates a presumption that the prisoner will be paroled if certain conditions
are satisfied. The Nebraska parole statute in Greenholtz provided: “Whenever the Board of Parole considers the release
of a committed offender who is eligible for release on parole,
it shall order his release unless it is of the opinion that his
release should be deferred because [one of four enumerated
factors exists].” 442 U.S. at 11. The Supreme Court reasoned
that this language created an “expectancy of release” that was
“entitled to some measure of constitutional protection.” Id. at
12.
Allen involved a Montana parole statute similar to Nebraska’s: “[T]he board shall release on parole . . . any person confined in the Montana state prison or the women’s correction
center . . . when in its opinion there is reasonable probability
that the prisoner can be released without detriment to the pris-

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oner or to the community[.]” 482 U.S. at 376. The Court held
that this statute gave rise to a protected liberty interest in
parole release because, like the Nebraska statute in Greenholtz, it “uses mandatory language (‘shall’) to ‘creat[e] a presumption that parole release will be granted’ when the
designated findings are made.” Id. at 377-78 (quoting Greenholtz, 442 U.S. at 12). In addition, the Court “reject[ed] the
argument that a statute that mandates release ‘unless’ certain
findings are made is different from a statute that mandates
relief ‘if,’ ‘when,’ or ‘subject to’ such findings being made.
Any such statute creates a presumption that parole release will
be granted.” Id. at 378 (quotations omitted).
In McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002), we
had to decide whether California’s parole scheme created a
liberty interest in parole, and we drew heavily on Greenholtz
and Allen. The parole statute at issue read:
The panel or board shall set a release date unless it
determines that the gravity of the current convicted
offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such
that consideration of the public safety requires a
more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed
....
Cal. Penal Code § 3041(b). We determined that this statute
paralleled the Nebraska and Montana parole statutes at issue
in Greenholtz and Allen, respectively. We explained that the
California statute created a presumption that parole would be
granted unless “statutorily defined determinations are made,”
and we held it therefore gave rise to a liberty interest in parole
that is federally protected by the Due Process Clause. McQuillion, 306 F.3d at 901.
Here, Oregon argues that the language of its murder review
statute distinguishes it from the statutes in Greenholtz, Allen,

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and McQuillion and does not create a liberty interest in
parole. Those statutes mandate that parole boards “shall”
parole a prisoner “unless” they have reasons not to (Greenholtz and McQuillion) or, in the positive, “when” they believe
the prisoner can be trusted to be law-abiding (Allen). By contrast, Oregon’s statute places the burden on the prisoner to
show that he or she is capable of rehabilitation. If the prisoner
does not meet this burden, the statute explains, “the board
shall deny the relief sought in the petition.” Or. Rev. Stat.
§ 163.105(4) (1981). In the State’s view, placing the burden
of proof on the prisoner—along with the explicit command to
“deny the relief” if the burden is not met—removes any presumption that a prisoner will be granted early eligibility for a
parole hearing and therefore negates any liberty interest in
obtaining that eligibility.
[3] We disagree. Whatever differences exist between
requiring a parole board to provide reasons for not granting
parole and requiring the prisoner to provide reasons why he
or she should be paroled, we do not believe they control
whether the statute confers a liberty interest. The parole statutes in Greenholtz, Allen, and McQuillion each provided that
a prisoner should be paroled if certain evidentiary conditions
were satisfied; similarly, the Oregon murder review statute
provides for early eligibility for a parole hearing if a prisoner
shows a likelihood of being rehabilitated within a reasonable
amount of time. We do not read Greenholtz, Allen, and
McQuillion to require that the evidentiary burden must be on
the state to show that a prisoner is not entitled to parole—
rather than on the prisoner to show that he or she is—in order
for a liberty interest in parole to arise.
[4] We therefore conclude that the language of Oregon’s
murder review statute “creates a presumption” in favor of
early eligibility for a parole hearing “when or unless certain
designated findings are made, and thereby gives rise to a constitutional liberty interest.” McQuillion, 306 F.3d at 901
(internal quotation marks omitted).

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B.

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Miller’s Due Process Rights

We now turn to whether the Board violated Miller’s due
process rights when it found he was not likely to be rehabilitated within a reasonable period of time and denied him early
parole eligibility. Miller argues the Board’s determination
violated his constitutional rights because it was not supported
by some evidence in the record. The district court also relied
on the “some evidence” standard in concluding that the Board
did not violate Miller’s rights. Miller v. Oregon Bd. of Parole
and Post-Prison Supervision, 2007 WL 4245912, *3 (D. Or.
2007). Our decisions in Hayward and Pearson v. Muntz, 625
F.3d 539 (9th Cir. 2010) have since clarified, however, that
the “some evidence” standard is not constitutionally mandated
in all parole cases.
[5] While we applied the standard in Hayward, we did so
only because the California law at issue in that case required
it. 603 F.3d at 562. We explained in Pearson that Hayward
asserted clearly that the United States Constitution
does not establish a uniform federal requirement of
“some evidence” that applies to parole decisions in
every state, and that no such requirement exists “in
the absence of state law establishing otherwise.” We
noted that the scope of any federal due process right
to release on parole depends on the “substantive state
law” that defines the attributes of the particular
parole system at issue.
Pearson, 625 F.3d at 549 (quoting Hayward, 603 F.3d at
555). Thus, under Hayward, state law determines whether a
prisoner has a liberty interest in parole (or, as here, to an early
parole hearing), and also defines the quantum of evidence that
the Due Process Clause requires to support a state parole
board’s decision.
[6] Oregon’s murder review statute specifies that the prisoner must show the likelihood of rehabilitation by a prepon-

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derance of evidence, but it is silent as to the quantum of
evidence the Board must have in order to find the prisoner has
not met this burden. However, Oregon Revised Statute section
183.482 grants the Oregon Court of Appeals jurisdiction to
review Board orders, and subsection 8(c) provides that the
“court shall set aside or remand the order if the court finds
that the order is not supported by substantial evidence in the
record.” Or. Rev. Stat. § 183.482(8)(c). Substantial evidence
is evidence that is sufficient “to support a finding of fact when
the record, viewed as a whole, would permit a reasonable person to make that finding.” Id. Thus, Miller’s due process
rights were not violated if a reasonable person could have
reached the same conclusion the Board reached.
[7] The record demonstrates that the Board was swayed by
two factors. First, Miller’s offense was particularly callous
and depraved. He arranged for his wife to be killed for his
own economic benefit—to receive an insurance payout and to
avoid a costly divorce. Second, even though he had years to
reflect on his actions and to develop some self-understanding,
Miller’s statements about what led him to commit the crime—
and what insights he had gained while in custody—were shallow and platitudinal. Miller also continued to deflect responsibility for the crime. In the written statement he submitted to
the Board, Miller said “[m]any times I have regretted the day
I met the Allen boys [his coconspirators in the murder], recognizing the role they played in this crime.” He added, “I
have often struggled with whether or not there was a disparity
in the sentencing with us three.” These statements betray Miller’s refusal to take personal responsibility for his crime, and
also call into question his remorse for committing the offense
and his potential for rehabilitation.
[8] Considering the callous nature of Miller’s crime, his
woeful insight into why he committed it, and his lack of
remorse, a reasonable parole board could have concluded that
he failed to demonstrate—by a preponderance of the evidence
—that he was a suitable candidate for an early parole hearing.

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Moreover, we are not limited to the Board’s Administrative
Review Response in our review; we can affirm for any reason
that is supported by the record. Garcia v. Bunnell, 33 F.3d
1193, 1195 (9th Cir. 1994). The district court found that the
psychological report Miller submitted was “not entirely positive,” and noted Miller’s unwillingness to own up to his crime
for the first decade he was in custody. We agree with the district court that these additional factors support the Board’s
decision to deny Miller an early parole hearing. The Board’s
decision is supported by the quantum of evidence required by
Oregon law, and the Board therefore did not violate Miller’s
federally-protected liberty interest in early parole eligibility.
CONCLUSION
Oregon’s aggravated murder review statute creates a
federally-protected liberty interest in early parole eligibility,
and the Due Process Clause requires that the Board of
Parole’s determinations be supported by “substantial evidence” as that standard is defined under Oregon law. See Or.
Rev. Stat. § 183.482(8)(c). Here, the Board’s denial of relief
at the conclusion of Miller’s murder review hearing did not
violate his due process rights and was not an unreasonable
application of clearly established federal law as determined by
the United States Supreme Court. Miller is not entitled to
habeas corpus relief.
AFFIRMED.