Allen v. Belleque

FILED
NOT FOR PUBLICATION APR 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES RANDY ALLEN, No. 07-35860
Petitioner - Appellant, D.C. No. CV-05-00436-MO
v.
MEMORANDUM *
BRIAN BELLEQUE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Oregon state prisoner James Randy Allen appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
*
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).
Allen contends that the Oregon Board of Parole and Post-Prison Supervision
violated the ex post facto clause of the United States Constitution when, in 2003, it
retroactively applied Or. Rev. Stat. § 163.115(5)(c) to (e) (1999) to set a parole
hearing for Allen, to be held after he serves the 25-year mandatory minimum
sentence under § 163.115(5)(b). Specifically, Allen contends that at the time of his
offense and sentencing, the sentence for murder under Oregon law was a
determinate term of 25 years to be followed by lifetime post-prison supervision.
This claim fails because, under Oregon law, the sentence for murder at the time of
Allen’s offense was an indeterminate life sentence with a 25-year mandatory
minimum. See State v. Francis, 962 P.2d 45, 47 (Or. App. 1998) (holding that
1995 amendments to § 163.115(5)(a) had the effect of reinstating the indeterminate
life sentence for murder); see also State v. Haynes, 7 P.3d 623, 624 (Or. App.
2000).
To the extent Allen challenges the Oregon courts’ interpretation of Oregon
state law, such a claim is not cognizable on federal habeas review. See, e.g.,
Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985).
Because Allen was not disadvantaged by the application of the 1999
amendments, see Miller v. Florida, 482 U.S. 423, 430 (1987), the Oregon Court of
Appeals’ decision denying his ex post facto claim was not contrary to, or an
2 07-35860
unreasonable application of, clearly established Supreme Court precedent. See 28
U.S.C. § 2254(d)(1).
. AFFIRMED.
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