                                                                           FILED
                           NOT FOR PUBLICATION                              APR 25 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RANDY D. FISHER,                                 No. 07-36096

              Petitioner - Appellant,            D.C. No. CV-05-00829-PA

  v.                                             MEMORANDUM *

OREGON BOARD OF PAROLE AND
POST-PRISON SUPERVISION and
BRIAN BELLEQUE

              Respondent - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                      Argued and Submitted October 6, 2010
                                Portland, Oregon

Before: PAEZ and CLIFTON, Circuit Judges, and BURNS **, District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Larry Alan Burns, United States District Judge for the
Southern District of California, sitting by designation.
      Randy Fisher maintains the Oregon Board of Parole and Post-Prison

Supervision (“the Board”) violated his due process rights when it refused to grant

him early parole eligibility. The district court denied habeas relief, and we affirm.

      In 2001, Fisher requested a hearing with the Board to determine his

eligibility for parole. See Or. Rev. Stat. § 163.105(2). The mandatory language of

§ 163.105 provides Fisher with a constitutionally protected liberty interest in early

parole eligibility, of which he cannot be deprived without due process. Miller v.

Oregon Bd. of Parole, No. 07-36086 (9th Cir. April 25, 2011) (filed concurrently

with this disposition). The Board conducted a hearing, but denied Fisher’s

application for early parole eligibility.

      In Swarthout v. Cooke, 131 S.Ct. 859 (2011), the Supreme Court held that

the due process entitlements in the context of parole are “minimal”: advance access

to records; notice and opportunity to be heard; and a statement of the reasons why

parole is denied are all that are required. 562 U.S. at 4–5. Fisher concedes he was

afforded these minimum required procedural due process protections, so there is no

basis for overturning the Board’s denial.

      Because Fisher is not entitled to habeas relief, we decline to address whether

his claims were procedurally defaulted. 28 U.S.C. § 2254(b)(2); Cassett v.

Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005).


                                            2
AFFIRMED.




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