                                                                                       FILED
                                NOT FOR PUBLICATION
                                                                                        JUN 08 2016
                      UNITED STATES COURT OF APPEALS                                MOLLY C. DWYER, CLERK
                                                                                     U.S. COURT OF APPEALS


                               FOR THE NINTH CIRCUIT


 JOEL GUZEK,                                            No. 13-35300

                Plaintiff - Appellant,                  D.C. No. 3:11-cv-00749-AA

 v.
                                                        MEMORANDUM*
 AARON D. FELTON, Chairperson,
 Oregon Board of Parole & Post-Prison
 Supervision; sued in his official
 capacities,

                Defendant - Appellee.


                       Appeal from the United States District Court
                                for the District of Oregon
                         Ann L. Aiken, District Judge, Presiding

                        Argued and Submitted November 4, 2015
                                   Portland, Oregon

Before:        KOZINSKI, FISHER and WATFORD, Circuit Judges.

       Even assuming that Guzek can proceed in federal court after litigating his

claim before the Oregon Board of Parole and Post-Prison Supervision, he is not

entitled to relief. Guzek didn’t establish that the application of the 2009 Oregon

        *
          This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
                                                                              page 2
parole statute to dangerous offenders created an Ex Post Facto violation. See Or.

Rev. Stat. § 144.228 (2009). Specifically, he didn’t marshal sufficient evidence to

show that holding parole hearings once every two years created a “significant risk

of prolonging [his] incarceration.” Garner v. Jones, 529 U.S. 244, 251 (2000); see

also Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995) (determining that a

“speculative and attenuated possibility of . . . increasing the measure of

punishment” for a crime was not sufficient to establish an Ex Post Facto violation).

      That the 2009 amendment limits dangerous offenders to biennial parole

hearings doesn’t, on its own, cause an Ex Post Facto violation, even though

dangerous offenders were entitled to hearings at least once every two years under

the older version of the statute. Guzek failed to show how frequently dangerous

offenders actually received hearings under the pre-2009 version of the statute. Cf.

Gilman v. Schwarzenegger, 638 F.3d 1101, 1108 (9th Cir. 2011). Nor did he show

that affording dangerous offenders more frequent parole hearings would produce

more frequent grants of parole. Cf. id. at 1108 n.6. Rather, Guzek cited cases

where prisoners requested earlier parole hearings, claiming their dangerous

conditions were in remission, but were nevertheless denied an accelerated parole

consideration hearing or release date.
                                                                                 page 3
      Based on the record that Guzek presented, we cannot conclude that the 2009

law creates a “significant risk” of prolonging dangerous offenders’ sentences.

Garner, 529 U.S. at 251; see Morales, 514 U.S. at 509.


      AFFIRMED.
