                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 21 2010

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




                            FOR THE NINTH CIRCUIT



GUY FRIDAY EHLER,                                No. 09-35726

              Petitioner - Appellant,            D.C. No. 3:08-cv-00483-KI

  v.
                                                 MEMORANDUM *
MARK NOOTH,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                             Submitted June 7, 2010 **
                                Portland, Oregon

Before: HALL, FERNANDEZ, and McKEOWN, Circuit Judges.

       In 1979, Petitioner Guy Friday Ehler was convicted of two counts of

first-degree rape, two counts of first-degree sodomy, and one count of attempted

first-degree rape. He received an indeterminate sentence of 90 years in prison. On


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
October 6, 2004, the Oregon Board of Parole (“Board”) deferred Ehler’s projected

parole release date for 24 months, concluding that he suffered a “present severe

emotional disturbance that constitutes a danger to the health and safety of the

community.” Ehler sought state administrative and judicial review of the Board’s

decision, arguing, inter alia, that it violated the Ex Post Facto Clause. After

exhausting his state remedies, Ehler filed a petition for habeas corpus with the

United States District Court for the District of Oregon. The district court denied

the petition, and Ehler timely appealed. We have jurisdiction pursuant to 28

U.S.C. §§ 1291 & 2253.1 We affirm.

      The district court properly held that the Board did not violate the Ex Post

Facto Clause in deferring Ehler’s release date. Ehler argues that the Board

improperly applied a post-1993 version of Or. Rev. Stat. § 144.125(3), because the

Board, and not a psychiatrist or psychologist, determined that he had a “present

severe emotional disturbance.” Although a psychiatric or psychological diagnosis


      1
        Ehler did not request or receive a certificate of appealability (“COA”)
before filing this appeal. We recently held that a COA is a jurisdictional
prerequisite for a habeas challenge to a parole board decision. Hayward v.
Marshall, __F.3d__, 2010 WL 1664977, at *3-5 (9th Cir. Apr. 22, 2010) (en banc)
(overruling circuit precedent to the contrary). At the time Ehler filed his appeal,
however, he was justified in believing he could proceed without a COA, and in his
appellate brief he “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). We therefore issue Ehler a COA sua sponte and
proceed to the merits of his appeal. Hayward, 2010 WL 1664977, at *5.

                                          -2-
is a prerequisite to a deferral decision under the laws in effect in 1979, Oregon

courts have held that the Board, and not a doctor, is responsible for the legal

determination of whether an inmate has a present severe emotional disturbance.

Weidner v. Armenakis, 959 P.2d 623, 626-27, withdrawn by order July 13, 1998,

reasoning readopted and aff’d Merrill v. Johnson, 964 P.2d 284 (Or. Ct. App.

1998). Dr. David Starr diagnosed Ehler with Paraphilia NOS and Narcissistic

Personality Disorder, and he concluded that Ehler would be a “difficult prospect

for parole.” Under the version of § 144.125(3) in effect in 1979, this diagnosis was

a reasonable foundation for the Board’s decision to defer Ehler’s release date.

There is no indication that the Board retroactively applied any later-enacted law,

and therefore we cannot conclude that the Board’s decision was an unreasonable

application of Ex Post Facto law as determined by the Supreme Court.

      Our decision in Brown v. Palmateer, 379 F.3d 1089 (9th Cir. 2004), is

distinguishable. The Board in Brown did not fulfill its duty under the pre-1993

versions of § 144.125(3) to ground its parole deferral decision in a professional

diagnosis. To the contrary, the psychologist’s report in Brown plainly refuted the

Board’s conclusion that the petitioner suffered a present severe emotional

disturbance. Id. at 1094. Here, the Board’s determination that Ehler suffered a




                                          -3-
present severe emotional disturbance and constituted a danger to the community

was consistent with Dr. Starr’s diagnosis.

AFFIRMED.




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