Joel Guzek v. Aaron Felton

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NOT FOR PUBLICATION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.