[450] DEITS, C. J.
Defendant, Superintendent of Snake River Correctional Institution, petitions for reconsideration of our opinion in Hamel v. Johnson, 169 Or App 216, 9 P3d 719 (2000). Defendant asserts that we erroneously framed the issue as whether “plaintiff satisfied his burden of proving by a preponderance of the evidence that the order * * * postponing his May 27,1997, release date was not supported by substantial evidence[.]” Id. at 221. Defendant argues that “substantial evidence” is not the proper standard by which the trial court was required to evaluate plaintiffs claim. For the reasons explained below, we agree with defendant that we erred in our previous opinion. Accordingly, we allow reconsideration, withdraw our former opinion and disposition, and affirm the decision of the trial court.
In this case, plaintiff petitioned for a writ of habeas corpus, asserting that he was entitled to release on parole from the institution in which he was incarcerated. Plaintiff contended that the Board erroneously postponed his parole release from 1997 to 1999 based on its finding that plaintiff suffered a “present severe emotional disturbance such as to constitute a danger to the health or safety of the community[.]” Hamel, 169 Or App at 219 (quoting ORS 144.125(3) (1991)). Plaintiff made several arguments, developed in his pleadings and in his memorandum of law in support of his petition. First, he alleged that the Board purported to apply the law in effect at the time of his crimes, but did not, in fact, do so, thus violating the ex post facto provisions of the state and federal constitutions. Second, plaintiff asserted that the Board lacked authority to deny him parole because no psychological report diagnosed him with a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. Plaintiff acknowledged that the Board had discretionary power to determine whether an inmate had a present severe emotional disturbance such as to constitute a danger to the health and safety of the community, but argued that, as a matter of law, that finding must be based solely on a psychological report and that, if a psychological report did not specifically indicate [451] that an inmate suffered from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, then the Board’s decision exceeded its discretionary powers. Although plaintiff did not cite specific constitutional authority for that argument, he did cite the case of Anderson v. Alexander, 191 Or 409, 229 P2d 633, 230 P2d 770 (1951), in support of his argument.
The trial court issued a memorandum opinion concluding that the Board applied the law in effect at the time of plaintiffs crimes. The court further stated that ORS 144.125(3) (1991) permitted the Board to reach an independent finding of a severe emotional disturbance constituting a danger to the health or safety of the community by considering information other than the psychiatric or psychological report. The court explicitly rejected plaintiff’s argument that the Board could rely only on a psychological report that made a specific diagnosis of “severe emotional disturbance.” The court concluded, in light of its interpretation of ORS 144.125(3) (1991), that plaintiff had failed to allege sufficient facts to support his argument that the Board’s decision was based on insufficient evidence.
On appeal, plaintiff claimed that “[t]he trial court erred when it found sufficient evidence in the record to support the Board of Parole’s finding of present severe emotional disturbance constituting a danger to the community.” In response, the state argued first that plaintiff had not sufficiently alleged any challenge to the sufficiency of the evidence to support the Board’s decision, and second, that evidence in the record supported the Board’s decision, in light of this court’s holding in Weidner v. Armenakis, 154 Or App 12, 959 P2d 623, withdrawn by order Judy 13, 1998, reasoning reaffirmed and readopted in Merrill v. Johnson, 155 Or App 295, 964 P2d 284, rev den 328 Or 40 (1998). Neither party made any argument as to whether “substantial evidence” supported the Board’s decision. Nonetheless, our opinion indicated that the trial court erred in dismissing plaintiffs petition on the ground that the Board’s decision “was not supported by substantial evidence[.]” Hamel, 169 Or App at 221.
Defendant urges us to reconsider our decision on the ground that our sua sponte introduction of a “substantial [452] evidence” standard into the legal analysis was erroneous. Defendant argues that, to the extent that sufficiency of the evidence arguments are cognizable in habeas corpus proceedings, the proper standard is whether there is “some evidence” or “any evidence” to support the Board’s decision. Defendant points out that there is significant difference between those standards:
“Constitutional due process is satisfied by an even lower standard [than ‘substantial evidence’ as defined in ORS 183.482], viz., if there is any evidence in the record that could support the conclusion reached by a disciplinary board. See Superintendent v. Hill, 472 US 445, 454-56, 105 S Ct 2768, 86 L Ed 2d 356 (1985).” Snow v. OSP, 308 Or 259, 268, 780 P2d 215 (1989).
We agree with defendant that the standards are not interchangeable. The question is which, if either, is the applicable standard here.
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[450] DEITS, C. J.
Defendant, Superintendent of Snake River Correctional Institution, petitions for reconsideration of our opinion in Hamel v. Johnson, 169 Or App 216, 9 P3d 719 (2000). Defendant asserts that we erroneously framed the issue as whether “plaintiff satisfied his burden of proving by a preponderance of the evidence that the order * * * postponing his May 27,1997, release date was not supported by substantial evidence[.]” Id. at 221. Defendant argues that “substantial evidence” is not the proper standard by which the trial court was required to evaluate plaintiffs claim. For the reasons explained below, we agree with defendant that we erred in our previous opinion. Accordingly, we allow reconsideration, withdraw our former opinion and disposition, and affirm the decision of the trial court.
In this case, plaintiff petitioned for a writ of habeas corpus, asserting that he was entitled to release on parole from the institution in which he was incarcerated. Plaintiff contended that the Board erroneously postponed his parole release from 1997 to 1999 based on its finding that plaintiff suffered a “present severe emotional disturbance such as to constitute a danger to the health or safety of the community[.]” Hamel, 169 Or App at 219 (quoting ORS 144.125(3) (1991)). Plaintiff made several arguments, developed in his pleadings and in his memorandum of law in support of his petition. First, he alleged that the Board purported to apply the law in effect at the time of his crimes, but did not, in fact, do so, thus violating the ex post facto provisions of the state and federal constitutions. Second, plaintiff asserted that the Board lacked authority to deny him parole because no psychological report diagnosed him with a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. Plaintiff acknowledged that the Board had discretionary power to determine whether an inmate had a present severe emotional disturbance such as to constitute a danger to the health and safety of the community, but argued that, as a matter of law, that finding must be based solely on a psychological report and that, if a psychological report did not specifically indicate [451] that an inmate suffered from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, then the Board’s decision exceeded its discretionary powers. Although plaintiff did not cite specific constitutional authority for that argument, he did cite the case of Anderson v. Alexander, 191 Or 409, 229 P2d 633, 230 P2d 770 (1951), in support of his argument.
The trial court issued a memorandum opinion concluding that the Board applied the law in effect at the time of plaintiffs crimes. The court further stated that ORS 144.125(3) (1991) permitted the Board to reach an independent finding of a severe emotional disturbance constituting a danger to the health or safety of the community by considering information other than the psychiatric or psychological report. The court explicitly rejected plaintiff’s argument that the Board could rely only on a psychological report that made a specific diagnosis of “severe emotional disturbance.” The court concluded, in light of its interpretation of ORS 144.125(3) (1991), that plaintiff had failed to allege sufficient facts to support his argument that the Board’s decision was based on insufficient evidence.
On appeal, plaintiff claimed that “[t]he trial court erred when it found sufficient evidence in the record to support the Board of Parole’s finding of present severe emotional disturbance constituting a danger to the community.” In response, the state argued first that plaintiff had not sufficiently alleged any challenge to the sufficiency of the evidence to support the Board’s decision, and second, that evidence in the record supported the Board’s decision, in light of this court’s holding in Weidner v. Armenakis, 154 Or App 12, 959 P2d 623, withdrawn by order Judy 13, 1998, reasoning reaffirmed and readopted in Merrill v. Johnson, 155 Or App 295, 964 P2d 284, rev den 328 Or 40 (1998). Neither party made any argument as to whether “substantial evidence” supported the Board’s decision. Nonetheless, our opinion indicated that the trial court erred in dismissing plaintiffs petition on the ground that the Board’s decision “was not supported by substantial evidence[.]” Hamel, 169 Or App at 221.
Defendant urges us to reconsider our decision on the ground that our sua sponte introduction of a “substantial [452] evidence” standard into the legal analysis was erroneous. Defendant argues that, to the extent that sufficiency of the evidence arguments are cognizable in habeas corpus proceedings, the proper standard is whether there is “some evidence” or “any evidence” to support the Board’s decision. Defendant points out that there is significant difference between those standards:
“Constitutional due process is satisfied by an even lower standard [than ‘substantial evidence’ as defined in ORS 183.482], viz., if there is any evidence in the record that could support the conclusion reached by a disciplinary board. See Superintendent v. Hill, 472 US 445, 454-56, 105 S Ct 2768, 86 L Ed 2d 356 (1985).” Snow v. OSP, 308 Or 259, 268, 780 P2d 215 (1989).
We agree with defendant that the standards are not interchangeable. The question is which, if either, is the applicable standard here.
Before 1993, orders of the Board of Parole and Post-Prison Supervision concerning parole release dates were subject to direct review in this court in essentially the same manner as were many administrative decisions; this court could set aside or remand such an order upon a finding that the order was “not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482(8).1 See, e.g., Raridon v. Board of Parole, 104 Or App 307, 311, 801 P2d 842 (1990) (conducting “substantial evidence” review of Board order concerning parole release date). However, in 1993, the legislature specifically determined that review of this type of decision under the procedures for review of Board administrative orders was not appropriate, and it enacted restrictions on direct appellate review of orders that postpone parole release based on a psychological diagnosis under ORS 144.125(3) (1991). See generally Shelby v. Board of Parole, 140 Or App 102, 105-08, 915 P2d 414, rev den 324 Or 18 [453] (1996) (describing history of legislation and holding that legislation barred direct review of such Board orders, but not other forms of review such as special writ proceedings).
Following that change in the law, Board orders deferring parole release dates based on psychological evaluations were challenged by way of petitions for writs of habeas corpus. In Meadows v. Schiedler, 143 Or App 213, 924 P2d 314 (1996), a habeas corpus plaintiff made an ex post facto challenge to the Board’s application of a version of ORS 144.125 that was not in effect at the time of the inmate’s crime. In Meadows, the trial court dismissed the action sua sponte. We held that the trial court had erred because plaintiff had stated a cognizable claim, and we remanded to give plaintiff an opportunity to prove his claim that the Board had applied the wrong version of the statute. Id. at 220. We went on to note that the plaintiff was alleging that the challenged order was “not supported by substantial evidence.” Regarding that claim, we stated:
“That allegation, in essence, asks the trial court itself to assess the record and evidence in the light of the former statutory standard and to order release. Habeas corpus is available to challenge the action of an administrative body if it acts beyond its statutory powers. Anderson v. Alexander, 191 Or 409, 431, 229 P2d 633, 230 P2d 770 (1951). The action challenged by plaintiff here is the Board’s application of the 1993 version of ORS 144.125(3). Whether the facts support a postponement under the former version of ORS 144.125(3) is a determination for the Board, not the habeas corpus court.6
Under Meadows, it is clear that the habeas corpus court is not to assess whether the Board’s order was supported by substantial evidence by weighing or reweighing the evidence before the Board. Rather, the habeas corpus court is to determine whether, based on the evidence before it, the [454] Board’s decision rests on legally insufficient evidence. As we recognized in Meadows, however, “legally insufficient evidence” means something different in the context of habeas corpus than it does in APA-style administrative review for substantial evidence. In Anderson, 191 Or at 431, cited by this court in Meadows, the court stated, in the context of review of an administrative decision to revoke parole, that a habeas corpus plaintiff
“may always challenge the action of the administrative body if it acts beyond its statutory powers, or fraudulently, corruptly, or on mere personal caprice, or in the absence of any information[.]” (Emphasis added.)
As noted above, plaintiff relied on the Anderson case in the trial court in support of his argument that the Board’s decision exceeded its discretionary authority. Although neither plaintiff nor the Anderson case itself cite explicit constitutional authority for the proposition that habeas corpus relief is available if an agency exceeds its statutory authority or acts in the absence of any information in making a parole release decision, we agree with defendant that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides the basis for that proposition.
Habeas corpus relief is available to challenge the authority for, or the conditions of, confinement. ORS 34.360; ORS 34.362. A person serving an indeterminate prison sentence who is paroled has not completed his or her sentence; rather, “parole is in the nature of a grant of partial liberty or a lessening of restrictions to a convicted prisoner.” Anderson, 191 Or at 431 (quoting McCoy v. Harris, 108 Ut 407, 160 P2d 721 (1945)). Nonetheless, statutory entitlement to parole may, under some circumstances, create a liberty interest that is cognizable for purposes of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Greenholtz v. Nebraska Penal Inmates, 442 US 1, 99 S Ct 2100, 60 L Ed 2d 668 (1979).2 Assuming for purposes of this [455] discussion that ORS 144.125 (1991) creates such a liberty interest that an inmate will be paroled on his or her projected parole release date in the absence of specific findings by the Board, the question is what standard a court is to use to evaluate the propriety of the Board’s decision, in the absence of a statutory standard that governs review of such decisions.3
Defendant is correct that the case of Superintendent v. Hill, 472 US 445, 105 S Ct 2768, 86 L Ed 2d 356 (1985), answers that question. In Hill, a prison disciplinary board found that several inmates had violated prison rules and, pursuant to statutory authority, reduced the amount of “good time credits” or sentence reductions to which the inmates were entitled. 472 US at 447. The Court framed the issue before it as “whether findings of a prison disciplinary board that result in the loss of good time credits must be supported by a certain amount of evidence in order to satisfy due process.” Id. at 453. The Court concluded that revocation of good time credits did not comport with the minimum requirements of procedural due process “unless the findings of the prison disciplinaiy board are supported by some evidence in the record.” Id. at 454 (emphasis added). The Court stated:
“Requiring a modicum of evidence to support a decision to revoke good time credits will help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens. * * * Because the written statement mandated by Wolff [v. McDonnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935 (1974)] requires a disciplinary board to explain the evidence relied upon, recognizing that due process requires some evidentiary basis for a decision to revoke good time credits will not impose significant new burdens on proceedings within the prison. Nor does it imply that a disciplinary board’s factual findings or decisions with respect to appropriate punishment are subject to second-guessing upon review.” Id. at 455.
[456] Finally, the Court made explicit what this type of review for “some evidence” would entail:
“Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56.
That standard is essentially the same as the one described in Meadows, 143 Or App at 221, in which we indicated that the court would not entertain “substantial evidence” argument in habeas corpus cases, and with Anderson, 191 Or at 431, which indicated that an inmate may challenge the action of an agency on the ground that it acted in the absence of any information. In sum, in Meadows, we suggested, but did not make explicit, that although “substantial evidence” review of Board orders is not possible in a habeas corpus case, challenges to the sufficiency of the evidence to support Board orders may be entertained. We now clarify that the standard by which a court in habeas corpus is to evaluate the evidence in support of a Board order is whether “some evidence” supports the Board’s conclusion.
The analysis in Judge Armstrong’s dissent, based entirely on his interpretation of OAR 255-030-0032, is unsound in various respects. 173 Or App at 471-80. It is premised on the notion that plaintiff is entitled to habeas corpus relief on the ground that the Board failed to follow the dictates of OAR 255-030-0032(3) that “substantial evidence shall support Board orders. Substantial evidence is found when the record, viewed as a whole, would permit a reasonable person to make a particular finding.” As an initial matter, we note that plaintiff has never alleged that he is entitled to habeas corpus relief on the ground that the Board failed to follow one of its rules. In fact, neither plaintiff nor defendant has even cited OAR 255-030-0032(3) in this court, or in the trial court, much less argued that it is in any way applicable to the issues presented here. That is not surprising because, even assuming that a habeas corpus court could conduct a substantial evidence review, but see Meadows, 143 Or App at 221, such a review would require consideration of “the record, [457] viewed as a whole.” Plaintiff has failed to allege that the record, viewed as a whole, did not support the Board’s decision. In sum, the issue that the dissents would have us decide has not been argued in this case.
Moreover, even if we were to address whether OAR 255-030-0032(3) was applicable to the issue presented here, we would be hard pressed to conclude, as do the dissents, that this rule applies to exit interviews as well as to initial prison term hearings. Division 30 of the rules explicitly applies only to “prison term hearing procedure[s].” “Prison term hearing” is defined as “[t]he hearing at which the Board establishes an inmate’s prison term and initial parole release date.” OAR 255-005-0005(42). The issue in this case is deferral of parole release based on a finding of severe emotional disturbance, and such decisions are made pursuant to Division 60 of the Board’s rules, which pertains to “release to post-prison supervision or parole and exit interviews.”
Judge Armstrong’s dissent attempts to overcome this problem by noting that OAR 255-060-0006(2) incorporates the “procedures for records * * * outlined in Division 15 and 30” into the exit interview process and concluding that the Board intended also to incorporate the “substantial evidence” rule from Division 30. 173 Or App at 475 (emphasis added). Judge Armstrong’s dissent accomplishes this essentially by reasoning that “records” is the plural of “record,” that an evidentiary rule involves the development of the “record,” and “procedures for records,” therefore, really means “quantum of evidence required to support a decision.” That is a stretch, to say the least, particularly in light of the fact that Division 15, to which OAR 255-060-0006(2) refers, concerns “requests] for Board records of files.”
We now turn to the application of the proper standard in the present case. We first note that the state is correct that, in the trial court, plaintiff did not make any type of general challenge to the sufficiency of the evidence, but rather made the assertions that, as a matter of law, the Board erred in considering information outside of the psychological evaluation, and that the psychological evaluation itself needed to contain a diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the [458] community. The trial court correctly rejected those arguments, see Weidner, 154 Or App at 19-20, and, therefore, correctly concluded that plaintiff did not plead sufficient facts to entitle him to relief. As noted above, plaintiff changed his argument on appeal, challenging for the first time the sufficiency of the evidence to support the Board’s decision. Normally, we would not reach the merits of an argument presented for the first time on appeal. However, in the present case, we did address the merits of plaintiffs sufficiency of the evidence argument on appeal, inadvertently introducing an incorrect standard of review. Hamel, 169 Or App at 221. Therefore, we must again address the merits of plaintiff s sufficiency of the evidence argument in order to correct our previous error.
Applying the “some evidence” standard in the present case, it is clear that we erred in our evaluation of the record in our previous opinion. In support of his habeas claim, plaintiff submitted as evidence before the trial court the psychological report on which the Board relied, which is discussed at length in our previous opinion. Hamel, 169 Or App at 219-21. He also presented evidence about his lack of criminal history and lack of significant prison discipline. He presented evidence that he had completed significant amounts of mental health treatment in the penitentiary. Defendant, in response, relied solely on the psychological evaluation discussed in our previous opinion to support the Board’s conclusion that plaintiff suffers from a “present severe emotional disturbance that constitutes a danger to the health or the safety of the community.” The crimes for which plaintiff is imprisoned involved sodomy of two children, and the psychologist who prepared the evaluation stated that plaintiff had “begun to take responsibility for his crime,” but felt that plaintiff did “not entirely recognize his potential for reof-fense.” (Emphasis added.) The evaluation on which the Board relied in support of its conclusion indicates that plaintiff has a personality disorder that has narcissistic and passive/aggressive features. The psychologist described individuals with psychological profiles similar to plaintiffs profile as: self-centered, selfish, bitter, angry, hostile, suspicious, [459] and tending to blame others for life’s problems. The psychologist also stated that “there certainly is some risk for reof-fense.” Given this information, we conclude that some evidence provided by the psychological evaluation supports the Board’s determination that plaintiff continues to suffer from a “present severe emotional disturbance such as to constitute a danger to the health or safety of the community.” ORS 144.125(3) (1991).
Reconsideration allowed; former opinion and disposition withdrawn; affirmed.