                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           JAN 18 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

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 that the Oregon Board of Parole 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

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

v. Oregon Bd. of Parole, No. 07-36086 (9th Cir. January __, 2011) (filed

concurrently with this disposition). State law determines the quantum of evidence

required for the Board’s decision to comport with due process requirements.

Hayward v. Marshall, 603 F.3d 546, 561–62 (9th Cir. 2010) (en banc). Oregon

law provides that the Board’s decision to deny Fisher the sentence conversion must

have been supported by “substantial evidence,” meaning a reasonable person could

have reached the same decision. Or. Rev. Stat. § 183.482(8)(c). See Miller.

       Fisher’s exchange with the Board during his hearing demonstrated that he

had gained little insight into why he raped and murdered someone he hardly knew.

When asked for “any evidence . . . which supports that there is a reasonable

probability that you will remain in the community without violating the law,”

Fisher replied, “I don’t want to come back here . . . It’s not a very fun place . . . I


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do not believe I will recommit any crimes.” Fisher also said he didn’t believe he

had any mental or emotional disturbances, but that he had done some reading and

learned “You can always walk away. Violence isn’t the answer.” Understandably,

these superficial statements did not inspire the Board’s confidence that Fisher was

capable of rehabilitation.

      A reasonable person, considering the record and testimony before the Board,

could have found that Fisher was not likely to be rehabilitated within a reasonable

period of time. See Or. Rev. Stat. § 163.105(3). The district court properly denied

his habeas petition. 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).

      AFFIRMED.




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