Himes v. Thompson, 01-35311.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation336 F.3d 848
Docket NumberNo. 01-35311.,01-35311.
PartiesRobert Lewis HIMES, Petitioner-Appellant, v. S. Frank THOMPSON, Respondent-Appellee.
Decision Date10 July 2003

Bryan E. Lessley, Assistant Federal Public Defender, Office of the Federal Public Defender, Eugene, OR, for the petitioner-appellant.

Janet A. Metcalf, Assistant Attorney General, Office of the Attorney General for the State of Oregon, Salem, OR, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV97-01513-TMC.

Before B. FLETCHER, O'SCANNLAIN and BERZON, Circuit Judges.


BERZON, Circuit Judge.

The Oregon State Board of Parole and Post-Prison Supervision ("the Board of Parole") found that Robert Lewis Himes had violated the terms of his parole and ordered him re-incarcerated to serve twenty-nine and one half additional years. The Board of Parole based its decision on parole regulations more onerous than those in place at the time Himes committed the offense for which he was incarcerated. The question for decision is whether that determination violated the Ex Post Facto Clause of the United States Constitution. U.S. Const. art. I, § 10. We conclude that it did and therefore reverse the district court's denial of Himes' petition for habeas corpus.


In 1978 Himes sexually assaulted a woman and a thirteen-year old girl at knife point. He was arrested and pleaded guilty to attempted rape, first degree rape, first degree sodomy, and first degree robbery. The state trial court imposed consecutive sentences, totaling 70 years. Fifteen years later, on April 24, 1994, the Board of Parole released Himes on parole, a decision that, according to Himes' parole officer "created a considerable stir" in the community.

A. Revocation of Himes' Parole

On parole, Himes was subject to several "Special Conditions": He was prohibited from having contact with minor females, required to complete successfully a sex offender treatment program, and directed to submit to random polygraph examinations.

On June 28, 1994, Himes took his first polygraph examination. During both a pre-test interview and the polygraph examination itself Himes denied having sexual encounters with women other than his wife, following women, or entertaining sexual fantasies about women. The polygraph examiner concluded that Himes' responses were not truthful.

In the post-test interview that followed, Himes made several admissions that contradicted his previous claims. He explained that although he loved his wife and had not engaged in sexual relations with another woman, he sometimes took unnecessary routes in order to be near attractive women while driving and shopping. He said he did this to exchange glances with the women. Following such eye contact he fantasized about sexual relationships with women.

After the examination, the polygraph examiner submitted a report to Himes' parole officer. Based on the examiner's report as well as on the conclusion that Himes had failed to report his behavior and fantasies to his parole supervision team, Himes' parole officer prepared a Violation Report recommending that the Board of Parole revoke Himes' parole.

On August 1, 1994, less than four months after his release, the Board of Parole formally revoked Himes' parole. After unsuccessful appeals of the revocation decision in state court, Himes filed in federal district court a petition for a writ of habeas corpus, challenging the parole revocation. The district court denied the writ, and this court affirmed in an unpublished opinion. Himes v. Thompson, 225 F.3d 662 (9th Cir.2000).

B. Denial of Rerelease

According to regulations in place at the time of Himes' parole revocation, Himes was entitled to rerelease from parole after 90 days of re-incarceration unless the Board of Parole made a finding of "aggravation." Or. Admin. R. 255-075-0079(1,10) (1994); Or. Admin. R. 255-075-0096(1) (1994).1 Upon a finding of aggravation, the Board of Parole could, according to the 1994 regulations, deny Himes' rerelease altogether and require that Himes serve to his statutory "good time" date.2 Id.

On October 27, 1994, approximately three months after revoking Himes' parole, the Board of Parole held a hearing to determine Himes' eligibility for rerelease according to these criteria. Finding aggravation, the Board of Parole denied Himes rerelease and scheduled his next review for May, 2024, two years shy of his projected statutory "good-time" date. In other words, as a result of the parole violations, Himes will be required to serve a minimum of twenty-nine and one half additional years in prison. As we will develop, application of the 1978 regulations would quite likely have led to a different result.

C. Procedural History

After the Board of Parole denied Himes rerelease, Himes appealed. The Oregon Court of Appeals denied the appeal without opinion, and the Oregon Supreme Court denied review. Himes v. Bd. of Parole, 140 Or.App. 644, 917 P.2d 77 (1996); Himes v. Bd. of Parole, 324 Or. 322, 927 P.2d 598 (1996). Himes next filed a petition for habeas corpus relief in United States District Court, raising several claims. The district court denied the petition, rejecting some claims on the basis of procedural default and others on the merits.

Himes currently appeals only the denial of his contention that, by applying 1994 regulations to increase Himes' incarceration period for crimes committed in 1978, the Board of Parole violated the Ex Post Facto Clause, U.S. Const. art. I, § 10. Subsequent to oral argument, we asked for and received supplemental briefing regarding the impact of the recent Oregon case of Gonzalez v. Washington, 182 Or.App. 112, 47 P.3d 537 (2002), on the instant appeal. We now reverse.

A. Habeas Standard

Himes filed his habeas petition on October 2, 1997, so we review his petition under the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). Our review of the district court's denial of habeas corpus relief is de novo. Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir.2000).

AEDPA requires that we give considerable deference to state court decisions. The state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). We are bound by a state's interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir.2002), cert. denied, 537 U.S. 859, 123 S.Ct. 231, 154 L.Ed.2d 98 (2002). We also defer to the state court's determination of the federal issues unless that determination is "contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer v. Andrade, 538 U.S. ___, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). A state court decision is "contrary to" federal law "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 1173 (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., concurring)) (internal quotation marks omitted). A state court decision involves an unreasonable application if it correctly identifies the governing rule but unreasonably applies it to a new set of facts, see id. at 1174 (citing Williams, 529 U.S. at 413, 120 S.Ct. 1495), or fails to extend a clearly established legal principle to a new context in a way that is unreasonable, see Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir.2001) (citing Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.2000)). An unreasonable application of federal law is something more than an incorrect or even clearly erroneous application; the application must be "objectively unreasonable." Andrade, ___ U.S. at ___, 123 S.Ct. at 1174. Although only Supreme Court law is binding on the states, our Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).

Application of these standards is significantly impeded where, as here, the state court supplies no reasoned decision. Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir.2000). We "cannot perform our evaluation under the models suggested by Justice O'Connor in Williams," because we have "no basis other than the record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context." See Delgado, 223 F.3d at 981-82. Delgado therefore instructs us to perform an "independent review of the record" to ascertain whether the state court decision was objectively unreasonable. Id. at 982. Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable. See id.; accord Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir.2000) (en banc).3

In this case, our review of the record requires an in-depth analysis of Oregon parole regulations to determine whether the change in regulations violated the Ex Post Facto Clause. Although the ultimate ex post facto question is a matter of federal law, see Lindsey v. Washington, 301 U.S. 397, 400, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), it is axiomatic that we defer to Oregon courts regarding predicate questions related to the interpretation of the parole regulations. See Souch, 289 F.3d at 621. Our problem here is that certain aspects of Himes' claims involve state law questions which have not been directly addressed either in the proceedings below or in any published...

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