Roof v. Oregon State Board of Parole & Post-Prison Supervision

202 F. App'x 189

Opinion

MEMORANDUM

**

Franklin David Roof, an Oregon state prisoner, appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253. We review the dismissal of Roofs petition de novo, see Hubbart v. Knapp, 379 F.3d 773, 778 (9th Cir.2004), and we affirm.

We reject Roofs argument that the Board of Parole and Post-Prison Supervision (“Board”) violated state rules by failing to “wipe out” his entire 20-year sentence for his 1983 burglaries when he received consecutive sentences for later offenses while on parole. Oregon Administrative Rule 225-35-022(8) provided that when a sentence is imposed consecutive to the sentence already being served by a parolee, the range will be the time served prior to revocation. The state concluded that while the range must be converted to time served prior to revocation, the overall sentence remains in effect. This was not arbitrary or capricious. See id. at 779 (federal habeas relief for state court error in the application of state law is available only if the state court’s misapplication of the law was arbitrary and capricious, and thus violated federal due process). Roof v. Board of Parole, 85 Or.App. 188, 736 P.2d 193 (1987) does not hold to the contrary. See Caughey v. Middle, 167 Or.App. 261, 1 P.3d 495, 498 (2000).

Because he did not raise it in the district court, we do not address Roofs argument that the Board violated the Ex Post Facto Clause when it denied him reparole with only three affirmative votes. See Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir.1997).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.