Haynes v. Board of Parole

No. 51 October 5, 2017 15

IN THE SUPREME COURT OF THE

STATE OF OREGON

MICHAEL R. HAYNES,

Petitioner on Review,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent on Review.

(CA A162586, SC S064442)

On review from the Court of Appeals.*

Argued and submitted May 12, 2017.

Marc D. Brown, Chief Deputy Defender, Salem, argued

the cause and filed the briefs for the petitioner on review.

Also on the briefs was Ernest G. Lannet, Chief Defender,

Office of Public Defense Services.

Ryan Kahn, Assistant Attorney General, Salem, argued

the cause and filed the brief for the respondent on review.

Also on the brief were Ellen F. Rosenblum, Attorney General

and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Nakamoto, Flynn, and Duncan, Justices.**

FLYNN, J.

The order of dismissal of the Court of Appeals is affirmed.

______________

**  On judicial review of a Final Order of the Board of Parole and Post-Prison

Supervision, dated May 4, 2016.

**  Brewer, J., retired June 30, 2017, and did not participate in the decision of

this case.

16 Haynes v. Board of Parole

Case Summary: ORS 163.105 provides that a person convicted of aggravated

murder and sentenced to life imprisonment without the possibility of parole may

seek a determination by the Board of Parole and Post-Prison Supervision, after

serving a minimum term, that he or she should have the terms of their confine-

ment modified to allow for the possibility of parole. Petitioner sought such a deter-

mination from the board, but the board denied his request. Petitioner wished

to seek judicial review of the board’s decision, as provided in ORS 144.335, but

his court-appointed lawyer did not file his petition for review within the time-

line provided in that statute, and the Court of Appeals dismissed the petition.

Petitioner sought review of the dismissal in the Supreme Court, arguing that

the lawyer’s failure to file a timely petition constituted a violation of his right to

adequate counsel in the judicial review, the existence of which right he inferred

from the fact that he was statutorily entitled to the assistance of counsel in the

review proceeding. Citing State ex rel Juv. Dept v. Geist, 310 Or 176, 796 P2d 1193

(1990), and the Due Process Clause of the Fourteenth Amendment to the United

States Constitution, petitioner argued that the appropriate and required remedy

for that violation was reversal of the dismissal and allowance of a late judicial

review process. Held: Assuming that petitioner has a statutory right to adequate

counsel on review, the remedy he seeks – excusing the jurisdictional requirement

of a timely petition for review – is not an appropriate remedy under state law,

given the strict filing deadline that the legislature has set; neither does the Due

Process Clause dictate a different result given the source of petitioner’s right to

counsel and the nature of the judicial review proceeding at issue.

The order of dismissal of the Court of Appeals is affirmed.

Cite as 362 Or 15 (2017) 17

FLYNN, J.

Petitioner seeks judicial review of a final order of

the Board of Parole and Post-Prison Supervision that denied

his petition to change the terms of his life imprisonment

to allow for the possibility of release. The Court of Appeals

dismissed the case because petitioner’s appointed counsel

missed the deadline for filing a petition for judicial review

in that court. We allowed review to consider whether peti-

tioner, who is statutorily entitled to be assisted by counsel

on review, should or must be allowed to proceed with his

untimely petition for review when the late filing was entirely

due to neglect by appointed counsel.

Petitioner argues that his statutory right to counsel

must be construed as a right to adequate counsel, that he

was denied that statutory right when his counsel missed the

filing deadline for judicial review, and that this court should

address the statutory violation by excusing the untimely fil-

ing. Petitioner also contends that a denial of judicial review

under these circumstances violates his right to due process

under the Fourteenth Amendment of the United States

Constitution and that this court must allow a delayed appeal

to vindicate petitioner’s due process rights.

We conclude that petitioner is not entitled to the

relief that he seeks. Jurisdiction for judicial review of a

board order is a creation of statute, ORS 144.335, and that

jurisdiction depends upon filing a petition for review within

the time period provided in the statute. Even if petitioner is

correct that he has a statutory right to adequate counsel on

review which has been denied because of appellate counsel’s

late filing, he is not correct that the appropriate remedy is

to excuse the jurisdictional requirement of a timely petition.

We also conclude that the federal constitution does not dic-

tate a different result, because the nature of the administra-

tive judicial review process is such that state law is the only

source of both petitioner’s right to judicial review and his

right to the assistance of counsel on review.

I.  FACTS AND PROCEDURAL BACKGROUND

Petitioner is serving a sentence of life imprisonment

without possibility of parole or release for a 1986 aggravated

18 Haynes v. Board of Parole

murder. At petitioner’s request, the board held a hearing to

determine if petitioner “is likely to be rehabilitated within

a reasonable period of time” and, if so, to change the terms

of his confinement to “life imprisonment with the possibil-

ity of parole, or work release.” See ORS 163.105 (1985).1 The

board found that petitioner failed to prove that he is likely to

be rehabilitated within a reasonable time, petitioner sought

administrative review, and the board issued a final order

adhering to its decision.

Upon learning that the board had issued its final

order, petitioner contacted the Office of Public Defense

Services (OPDS) to pursue judicial review on his behalf.2

Although OPDS assured petitioner that it would file a

petition for review, due to a calendaring error, the lawyer

assigned to petitioner’s case filed the petition six days after

the statutory deadline. The Court of Appeals, on its own

motion, dismissed review based on the untimely filing.

Petitioner filed a motion for reconsideration in which

he argued that the untimely filing should be excused, given

that it was entirely the fault of appointed counsel. The Court of

Appeals denied reconsideration, and this court allowed review.

II. DISCUSSION

Petitioner’s arguments rest on the initial premise

that his statutory right to the assistance of counsel to pur-

sue judicial review of the board’s order is a right to adequate

assistance of counsel. To vindicate that right, petitioner

argues, the court should allow additional time to file a peti-

tion for review when appointed counsel fails to timely file a

petition. According to petitioner, the court has authorized

similar relief to address inadequate representation in other

1

ORS 163.105 describes the process by which certain defendants who have

served a minimum period of confinement for aggravated murder may be deter-

mined to be eligible to have the terms of their confinement changed from life

imprisonment without the possibility of parole to life imprisonment with the

possibility of parole. Throughout the opinion, we rely on ORS 163.105 (1985),

the version of the statute in effect at the time petitioner committed his crime.

See Janowski/Fleming v. Board of Parole, 349 Or 432, 437, 245 P3d 1270 (2010)

(looking to version of ORS 163.105 in effect at the time of the prisoners’ crimes to

determine rights related to parole eligibility).

2

The legislature has specified that the Public Defense Services Commission,

which governs OPDS, “shall provide for the representation of financially eligible per-

sons petitioning for review” of board orders of the type at issue here. ORS 144.337(1).

Cite as 362 Or 15 (2017) 19

contexts and should do so in the “murder-review” context

as well.3 Petitioner also argues that he is entitled to that

remedy as a matter of the due process guaranteed by the

Fourteenth Amendment to the United States Constitution.4

A.  The Murder Review Statutory Framework

As context for petitioner’s arguments, we begin

with a brief overview of the murder-review process. At the

time petitioner committed his crime, ORS 163.105(1) (1985)

provided that a person convicted of aggravated murder, if

not sentenced to death, shall be sentenced to “life impris-

onment” and ordered “confined for a minimum of 30 years

without the possibility of parole, release on work release or

any form of temporary leave or employment at a forest or

work camp.” After 20 years, however, the prisoner becomes

eligible for a “murder-review” hearing, at which the board

considers whether to change the terms of the prisoner’s con-

finement to “life imprisonment with the possibility of parole

or work release.” ORS 163.105(2), (3) (1985).5

3

Both parties refer to hearings pursuant to ORS 163.105 as “murder review”

hearings, and we adopt that terminology for this opinion.

4

Petitioner’s constitutional argument relies on the Due Process Clause of

the Fourteenth Amendment. Neither the Sixth Amendment to the United States

Constitution nor Article I, section 11, of the Oregon Constitution guarantees

a right to counsel outside of criminal prosecutions, and we have held that the

Oregon Constitution contains no due process clause. See State ex rel Juv. Dept. v.

Geist, 310 Or 176, 188 n 13, 796 P2d 1193 (1990).

5

ORS 163.105 (1985) provided, in relevant part:

“(1)  * * * If sentenced to life imprisonment, the court shall order that the

defendant shall be confined for a minimum of 30 years without possibility of

parole, release on work release or any form of temporary leave or employment

at a forest or work camp.

“(2) At any time after 20 years from the date of imposition of a mini-

mum period of confinement pursuant to subsection (1) of this section, the

State Board of Parole, upon the petition of a prisoner so confined, shall hold

a hearing to determine if the prisoner is likely to be rehabilitated within a

reasonable period of time. The sole issue shall be whether or not the prisoner

is likely to be rehabilitated within a reasonable period of time.

“* * * * *

“(3)  If, upon hearing all of the evidence, the board, upon a unanimous

vote of all five members, finds that the prisoner is capable of rehabilitation

and that the terms of the prisoner’s confinement should be changed to life

imprisonment with the possibility of parole, or work release, it shall enter an

order to that effect and the order shall convert the terms of the prisoner’s con-

finement to life imprisonment with the possibility of parole or work release.

Otherwise the board shall deny the relief sought in the petition.”

20 Haynes v. Board of Parole

If, after such hearing, the board denies a prisoner’s

petition to change the terms of confinement, the prisoner

has a right to seek judicial review of the board’s order. ORS

144.335(1). One of the conditions for seeking judicial review

is that the petition for review of the board’s order “shall”

be filed “within 60 days after the date the board mails the

order.” ORS 144.335(4). Finally, and at the core of petitioner’s

argument, “the Public Defense Services Commission shall

provide for the representation of financially eligible persons

petitioning for review” of the board’s order. ORS 144.337(1).

B.  The Nature of the Right to Counsel on Review

According to petitioner, that statutory right to rep-

resentation by counsel “implicitly requires * * * the provision

of adequate counsel.” (Emphasis in original.) For that prem-

ise, petitioner relies primarily on State ex rel Juv. Dept. v.

Geist, 310 Or 176, 796 P2d 1193 (1990), in which we held

that the statutory right to counsel applicable in a termina-

tion of parental rights case is a right to “adequate” counsel.

In Geist, the mother whose parental rights were at stake

was provided counsel under a statute that guaranteed indi-

gent parents in termination cases a right to “an attorney

to represent them at state expense.” Id. at 180 n 3. The

court-appointed lawyer who represented the mother at the

termination hearing had been recently removed from a list

of lawyers who were qualified to represent clients in such

proceedings, and the lawyer moved to withdraw. The court

denied the lawyer’s motion to withdraw and ultimately ter-

minated the mother’s parental rights.

On appeal, the mother challenged the termination

judgment on the ground that she had been denied adequate

representation of counsel. The Court of Appeals “assumed

that the legislature intended a statutory right to counsel to

include a right to adequate counsel,” and this court expressly

agreed with that premise. Id. at 185. We also concluded

that, “[a]bsent an express legislative procedure for vindicat-

ing the statutory right to adequate counsel, this court may

fashion an appropriate procedure.” Id.

Generalizing from the holding in Geist, petitioner

argues that any statute that grants a right to state-provided

counsel implicitly grants a right to adequate counsel, because

Cite as 362 Or 15 (2017) 21

granting a right to counsel would be a pointless legislative

exercise if the right could be satisfied by counsel who is not

adequate to fill that role. As intuitively sound as that proposi-

tion may seem in the abstract, however, our more recent deci-

sion in Dept. of Human Services v. T.L., 358 Or 679, 687-693,

369 P3d 1159 (2016), suggests that we will not simply assume

that every statutory right to counsel necessarily grants a

right to adequate counsel. In T. L., although the parties and

the Court of Appeals had accepted that the rationale of Geist

extends to counsel appointed to represent parents in depen-

dency proceedings other than termination, we undertook to

“independently address” that proposition. Id. at 687. In doing

so, we focused on factors that the court uses to determine

whether the “nature of particular juvenile proceedings and

due process require the appointment of counsel.” Id. at 691-

93. Considering those factors in the particular context of a

proceeding to change a child’s permanency plan away from

reunification with the parents, we concluded, based on “the

complex nature of the legal and factual issues, and the grav-

ity of the interests at stake,” that appointed counsel in such

proceedings “must be adequate.” Id. at 693.

Moreover, as Geist illustrates, even when the court

accepts the proposition that the legislature granted a right

to adequate counsel, the more pertinent inquiry is “what

standard of adequacy” should apply. 310 Or at 187. In Geist,

the court rejected the mother’s argument that the court

should evaluate her attorney’s performance under the stan-

dard of adequate representation that the court employs in

criminal cases to protect a criminal defendant’s constitu-

tional right to counsel. Id. at 187. Instead, the court con-

cluded that the flexible standard of “fundamental fairness”

is the proper standard for deciding whether parents have

received adequate representation in a termination case.6 Id.

at 188-90. Under that standard, this court determined, the

mother received adequate assistance of counsel in the ter-

mination proceeding. Id. at 194.

6

Geist emphasizes that, in general, “fundamental fairness requires that

appointed counsel exercise professional skill and judgment,” but that “the search

for a single, succinctly-stated standard of performance, objectively applicable to

every case, is ‘a fool’s errand.’ ” 310 Or at 190 (quoting Krummacher v. Gierloff,

290 Or 867, 874, 627 P2d 458 (1981)).

22 Haynes v. Board of Parole

Petitioner does not meaningfully analyze whether

and to what extent ORS 144.337(1) grants a right to ade-

quate counsel to assist with the judicial review of petitioner’s

parole board order, and ultimately we need not decide those

questions in this case. That is so because, even if counsel’s

failure to timely file the petition for review denied peti-

tioner the right to counsel granted by ORS 144.337(1), as

discussed below, that denial does not justify the remedy of a

late review process—the only remedy that petitioner seeks.

C.  The Remedy of a Late Review Process

As indicated above, petitioner contends that this

court should reverse the dismissal of his petition for review

as the remedy for his attorney’s failure to provide adequate

representation on review. He argues that this remedy fol-

lows from existing state-law principles and, alternatively,

that the remedy is required as a matter of due process under

the Fourteenth Amendment. As is our custom, we consider

petitioner’s subconstitutional arguments before considering

his constitution (due process) arguments. See, e.g., State v.

Barrett, 350 Or 390, 398, 255 P3d 472 (2011) (describing

court’s usual practice).

1.  Late review as a remedy under Oregon law

For his argument that this court can and should

authorize a late petition for review when a prisoner’s counsel

fails to file a timely petition for review, petitioner again relies

primarily on Geist—specifically on the court’s conclusion

that “[a]bsent an express legislative procedure for vindicat-

ing the statutory right to adequate counsel, this court may

fashion an appropriate procedure.” 310 Or at 185. Petitioner

argues that Geist requires the court to fashion an “appro-

priate procedure” to vindicate the assumed violation of his

right to counsel under ORS 144.337(1). Petitioner contends

that here, where counsel’s inadequacy deprives petitioner of

any opportunity to obtain judicial review of the board’s final

order, a delayed judicial review is an “appropriate remedy”

because it is the sole remedy that can vindicate his right.

We conclude that allowing an untimely petition for

review is not an appropriate remedy for counsel’s failure to

file a petition for judicial review within the time limit set by

Cite as 362 Or 15 (2017) 23

the legislature. The judicial review process that petitioner

seeks exists because the legislature conferred jurisdiction

on the Court of Appeals to review the administrative deci-

sions of the board. We have repeatedly held that that when

the legislature confers jurisdiction on the courts to review

an agency’s final order, the courts’ jurisdiction depends upon

the timely filing of a petition for review. See, e.g., Ososke v.

DMV, 320 Or 657, 661, 891 P2d 633 (1995) (“[T]he untimely

filing of a petition for judicial review of a final order of DMV

is a jurisdictional defect.”); 1000 Friends of Oregon v. LCDC

(Clatsop Co.), 301 Or 622, 632, 724 P2d 805 (1986) (“The

Court of Appeals’ jurisdiction to review LCDC orders is

purely statutory and depends for its existence on the timely

filing of a request for review from a final order.”); cf. State v.

Harding, 347 Or 368, 373, 223 P3d 1029 (2009) (“Because

defendant’s notice of appeal was not timely filed, neither the

Court of Appeals nor this court has jurisdiction over the

trial court judgment challenged by defendant in this case.”).

To be sure, the legislature can and does create

exceptions to the timelines that it sets for obtaining judicial

review. See, e.g., ORS 138.071(5) (permitting defendant in

criminal case to file late direct appeal if he or she shows a

colorable claim of error and “that the failure to file a timely

notice of appeal is not attributable to the defendant person-

ally”); ORS 138.650(2)(a) (same, for review of post-conviction

claims). But there are no statutory exceptions to the juris-

dictional time limit in ORS 144.335(4), which requires

that, if a person “seeks judicial review of a final order of the

board, the person shall file a petition for judicial review with

the Court of Appeals within 60 days[.]” The statute does not

provide, for example, that the person shall file the petition

for review within 60 days “except for good cause” or “unless

the person was denied the assistance of counsel,” and we

decline to construe the separate grant of a right to counsel

in ORS 144.337(1) as implicitly creating an exception to the

jurisdictional time limits.

Nevertheless, petitioner argues that Geist offers a

path around that statutory jurisdictional obstacle. Although

he recognizes that Geist did not authorize jurisdiction over

an untimely appeal, petitioner urges us to understand

24 Haynes v. Board of Parole

Geist’s holding—that the court “may fashion an appropri-

ate procedure” to vindicate a statutory right to adequate

counsel—as rooted in principles of equity that apply here as

well. Petitioner observes that Geist, in a footnote following

the quoted holding, cites to cases arising in equity. See Geist,

310 Or at 185 n 11 (citing Stan Wiley v. Berg, 282 Or 9, 21-23,

578 P2d 384 (1978), and Day v. Griffith, 283 Or 393, 403,

584 P2d 261 (1978)). According to petitioner, the balance of

equities here clearly favors excusing his untimely filing, so

this court should allow a late filing as a matter of equity.

However, petitioner identifies no authority for his proposi-

tion that equitable principles make it appropriate for this

court to override time limits on statutory appellate jurisdic-

tion, and we are aware of none.7 Given the strict time limits

that the legislature has imposed when creating jurisdiction

for judicial review of board orders, allowing a late review is

not an “appropriate procedure” to vindicate petitioner’s stat-

utory right to counsel.

Petitioner next argues that the murder-review pro-

cess is similar enough to a criminal proceeding that we

should provide the same remedy for his counsel’s failure to

file a timely petition for review as we have approved for the

failure of a criminal defendant’s counsel to file a timely direct

appeal of the criminal conviction. He relies on Shipman

v. Gladden, 253 Or 192, 453 P2d 921 (1969), in which the

petitioner sought post-conviction relief after his criminal

defense counsel failed to file a timely direct appeal from the

petitioner’s criminal conviction, and this court approved

the remedy of a delayed appeal. Petitioner is correct that

7

Petitioner recommends the doctrine of equitable tolling as roughly apropos,

relying on the Supreme Court’s description of that doctrine in Lozano v. Montoya

Alvarez, __ US __, 134 S Ct 1224, 1231-32, 188 L Ed 2d 200 (2014): “[E]quitable

tolling pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has

pursued his rights diligently but some extraordinary circumstance prevents him

from bringing a timely action.” The Supreme Court has emphasized, however,

that the doctrine is not used to avoid time bars that are jurisdictional. See United

States v. Kwai Fun Wong, __ US __, 135 S Ct 1625, 1631, 191 L Ed 2d 533 (2015)

(explaining that doctrine of equitable tolling can pause the running of a statute

of limitations in actions between private parties and suits against the United

States under a statute waiving sovereign immunity, unless Congress “made the

time bar at issue jurisdictional”); Bowles v. Russell, 551 US 205, 214, 127 S Ct

2360, 168 L Ed 2d 96 (2007) (explaining that “timely filing of a notice of appeal in

a civil case is a jurisdictional requirement” and that “Court has no authority to

create equitable exceptions to jurisdictional requirements”).

Cite as 362 Or 15 (2017) 25

Shipman illustrates an exception to the rule that the court

will not consider appeals filed outside of the timelines set by

the legislature. However, the exception is entirely a product

of the context in which Shipman arose.

First, the Shipman court concluded that criminal

defendants have a right under the Fourteenth Amendment

to the effective assistance of counsel in an appeal as of right

from a criminal conviction. 253 Or at 198-99 (citing Anders

v. California, 386 US 738, 87 S Ct 1396, 18 L Ed 2d 493

(1967); Douglas v. California, 372 US 353, 83 S Ct 814, 9

L Ed 2d 811 (1963); Griffin v. Illinois, 351 US 12, 76 S Ct

585, 100 L Ed 891 (1956)); see also Evitts v. Lucey, 469 US

387, 396, 105 S Ct 830, 83 L Ed 2d 821 (1985) (confirming,

sixteen years after Shipman, that a criminal defendant’s

appeal as of right from the conviction “is not adjudicated in

accord with due process of law if the appellant does not have

the effective assistance of an attorney”).8 Thus, as we held in

Shipman, when the state denied the petitioner direct appel-

late review of his criminal conviction due to the “culpable

neglect of counsel,” he was deprived of a right guaranteed by

the Fourteenth Amendment, and the state was required to

“provide a remedy adequate to restore the impaired right.”

253 Or at 203.

Second, the court in Shipman explained that the

relief the petitioner sought was available as a matter of

Oregon law under the Post-Conviction Hearing Act, which

directs the court to grant relief for a denial of a criminal

defendant’s constitutional rights in either the trial or the

appellate courts. Id. at 203 (citing ORS 138.530). The court

emphasized that the act specifically “provides that the relief

which a court may grant includes ‘* * * such other relief as

may be proper and just’ ” and concluded that the legisla-

ture intended “such other relief” to include the remedy of a

delayed appeal. Id. at 204 (quoting ORS 138.520).

8

The earlier right-to-counsel cases, on which Shipman relied, tended to

derive support from both the Due Process and Equal Protection Clauses of the

Fourteenth Amendment. Evitts, 469 US at 403 (quoting Bearden v. Georgia, 461

US 660, 665, 103 S Ct 2064, 76 L Ed 2d 221 (1983), for the proposition: “Due

process and equal protection principles converge in the Court’s analysis in these

cases.”). Evitts, however, announced a right to effective assistance of counsel

derived entirely from the Due Process Clause.

26 Haynes v. Board of Parole

The relief afforded to the petitioner in Shipman

thus was rooted in two sources of authority that do not exist

here: the due process right to effective assistance of coun-

sel in appeals as of right from a criminal conviction and an

express statutory directive that the court provide relief to

vindicate that constitutional right. Here, no statute pro-

vides, or directs the court to provide, relief from the juris-

dictional requirement that petitioner file a timely petition

for judicial review of a parole board order. Moreover, as we

will explain below, petitioner has no constitutional right to

judicial review of the board’s decision or to the assistance of

counsel in challenging that decision. Thus, Shipman does

not alter our conclusion that allowing review to proceed

outside of the jurisdictional time limit is not an “appropri-

ate procedure” to vindicate petitioner’s statutory right to

counsel.

2.  Late review as a remedy required by the Due Process

Clause

Petitioner also contends that this court must make

an exception to the 60-day jurisdictional deadline in order

to prevent a violation of petitioner’s right to due process.

According to petitioner, because the Oregon legislature has

granted a right to judicial review of the board’s order, peti-

tioner has a due process right to that judicial review that

cannot be denied on the basis of “a calendaring error on the

part of his appellate counsel, a state actor.” We disagree.

The Due Process Clause of the Fourteenth

Amendment guarantees that no state shall “deprive any

person of life, liberty, or property, without due process of

law.” Thus, in evaluating a claimed due process violation,

the threshold inquiry “is whether the state has deprived a

person of a liberty or property interest within the meaning

of the Due Process Clause.” Stogsdill v. Board of Parole, 342

Or 332, 336, 154 P3d 91 (2007) (citing Wilkinson v. Austin,

545 US 209, 224, 125 S Ct 2384, 162 L Ed 2d 174 (2005));

see also Greenholtz v. Nebraska Penal Inmates, 442 US 1, 7,

99 S Ct 2100, 60 L Ed 2d 668 (1979) (looking to the nature of

the claimed interest to determine if the Due Process Clause

applies). If “there exists a liberty or property interest of

which a person has been deprived,” the second inquiry is

Cite as 362 Or 15 (2017) 27

“whether the procedures followed by the State were consti-

tutionally sufficient.” Swarthout v. Cooke, 562 US 216, 219,

131 S Ct 859, 178 L Ed 2d 732 (2011).

a.  Protected liberty interest

At the threshold step of the analysis, we accept peti-

tioner’s premise that ORS 163.105 (1985) confers a constitu-

tionally significant “liberty interest” in having a sentence of

life without the possibility of parole changed to permit the

possibility of parole. Although “[t]here is no right under the

Federal Constitution to be conditionally released before the

expiration of a valid sentence,” state parole statutes can cre-

ate a constitutionally protected liberty interest. Swarthout,

562 US at 220. It is not enough, however, that a state offers

the mere “possibility” of parole; rather, a protected liberty

interest is created only when the statute uses mandatory

language that “creates a presumption that parole release

will be granted” when certain necessary findings have been

made. Board of Pardons v. Allen, 482 US 369, 377-78, 107 S

Ct. 2415, 96 L Ed 2d 303 (1987) (quoting Greenholtz, 442 US

at 12); see also Evitts, 469 US at 401 (“when a State opts to

act in a field where its action has significant discretionary

elements, it must nonetheless act in accord with the dictates

of the Constitution—and, in particular, in accord with the

Due Process Clause[.]”).

Like the language of the statutes discussed in Allen

and Greenholtz, ORS 163.105 (1985) uses mandatory lan-

guage that creates a presumption that the board “shall”

change the terms of the prisoner’s confinement to life with

the possibility of parole when the board makes the desig-

nated finding. Moreover, this court has previously held that

an Oregon parole release statute created a protected liberty

interest in being released on a date that has been set for

release. Stogsdill, 342 Or at 335-36.

The board makes little effort to counter petitioner’s

argument that he has a protected liberty interest in becoming

eligible for early release, except to suggest that the interest is

a step removed from being given a release date—and, thus,

“more tenuous” than the liberty interest that we identified

in Stogsdill. But that distinction appears to be immaterial

28 Haynes v. Board of Parole

given our discussion of the applicable parole framework in

Janowski/Fleming v. Board of Parole, 349 Or 432, 245 P3d

1270 (2010). In Janowski, we undertook an extensive analy-

sis of the parole statutes and regulations that are applica-

ble to prisoners who committed aggravated murder during

the era in which petitioner here committed his crime. We

concluded that, under that statutory and regulatory frame-

work, once the board changes the terms of a prisoner’s con-

finement under ORS 163.105 (1985) to allow the possibility

of parole, the board must set—or must already have set—a

scheduled parole release date.9 Id. at 453. Janowski did not

analyze whether ORS 163.105 (1985) creates a protected

liberty interest in the change of an inmate’s confinement

terms, but its conclusion undermines the board’s sugges-

tion that a decision under ORS 163.105 (1985) to allow the

possibility of release does not necessarily result in a release

date, the only reason that the board offers for distinguish-

ing Stogsdill. We, thus, accept petitioner’s premise that ORS

163.105 (1985) creates a liberty interest within the meaning

of the Due Process Clause and, thus, that petitioner is enti-

tled to some measure of due process when the board denies

a request to change a prisoner’s terms of confinement.

b.  Constitutionally sufficient process

The more challenging task for petitioner is to estab-

lish that a right to judicial review with the assistance of

adequate counsel is among the procedural protections that

the Due Process Clause demands when a liberty interest

in parole is at stake. The nature of the procedural protec-

tions that due process requires to vindicate a liberty inter-

est depends upon the nature of the liberty interest at issue.

See Swarthout, 562 US at 220. The United State Supreme

Court has already determined that, when the liberty inter-

est at issue is a state-created opportunity for parole, the Due

Process Clause guarantees no more than “minimal” process,

which is limited to an opportunity to be heard and a state-

ment of the reasons why parole was denied. Swarthout, 562

US at 220 (citing Greenholtz, 442 US at 16).

9

The parole “release date” referred to in Janowski is not a date on which

release is guaranteed, but it is a scheduled release date that may be postponed for

only three statutorily prescribed reasons. 349 Or at 457 (citing ORS 144.125(2)

(1985)).

Cite as 362 Or 15 (2017) 29

As petitioner acknowledges, Swarthout means that

a state satisfies the requirements of the Due Process Clause

without providing either a right to the assistance of counsel

in the murder-review process or a right to judicial review

of the board’s decision. Yet petitioner views the “minimal”

process that Swarthout prescribes for parole decisions as

essentially only a floor. According to petitioner, by enact-

ing statutes that grant the additional protection of judicial

review with the assistance of counsel, Oregon has made a

“meaningful opportunity” to pursue judicial review part of

the process to which petitioner is entitled under the Due

Process Clause.

As support for his theory that a state statute can

expand the “minimal” protections that the Due Process

Clause otherwise requires when a state denies parole, peti-

tioner cites only the well established principle that a stat-

ute can create the kind of interest in liberty (or property)

to which due process protections will apply. See Wolff v

McDonnell, 418 US 539, 557, 94 S Ct 2963, 41 L Ed 2d 935

(1974) (explaining that statute granting prisoners a right

to “good time” that could be forfeited only for serious misbe-

havior created an “interest” that “is sufficiently embraced

within Fourteenth Amendment ‘liberty’ to entitle [prison-

ers] to those minimum procedures appropriate under the

circumstances and required by the Due Process Clause”);

see also Stogsdill, 342 Or at 336 (Oregon statutes directing

parole board to set release date for prisoner “created a pro-

tected liberty interest, which required the board to provide

him with some process”). But whether a statute can create

an interest in liberty or property that is protected by the

Due Process Clause is a separate inquiry from whether a

statutory process for protecting that interest becomes part

of the procedures that the Due Process Clause requires in

order to protect the interest. See Swarthout, 562 US at 219

(describing the two-stage inquiry under the Due Process

Clause).

Nevertheless, petitioner’s theory is reminiscent of

the reasoning that led the United States Supreme Court to

conclude in Evitts that, if a state grants a right to appeal

criminal convictions, then the Due Process Clause precludes

the state from denying that right on the basis of appointed

30 Haynes v. Board of Parole

counsel’s failure to meet a deadline. 469 US at 396. The

defendant in Evitts appealed his criminal conviction, but

the appeal was dismissed when his retained lawyer failed

to file a required “statement of appeal.” The defendant then

sought federal habeas corpus relief, contending that the dis-

missal of his appeal for an omission that was entirely due to

his lawyer’s ineffective representation violated his constitu-

tional right to due process. The state argued that, because

states are under no constitutional imperative to provide a

right to appeal criminal convictions,10 “whatever a state

does or does not do on appeal—whether or not to have an

appeal and if so, how to operate it—is of no due process con-

cern to the Constitution.” Id. at 400.

The Court rejected the state’s argument, explain-

ing that, although the defendant’s right to an appeal process

was purely a statutory right, once a state creates a right to

appeal that is “an integral part of the * * * system for finally

adjudicating the guilt or innocence of a defendant,” it must

decide those appeals using procedures that comport with the

protections of the Fourteenth Amendment. Id. at 393 (quot-

ing Griffin, 351 US at 18-20). The Court then held that those

constitutionally required procedures included “the effective

assistance of an attorney” to assist on direct appeal. Evitts,

469 US at 396. Applying that rule, the Court concluded that

the state could not deny the defendant’s appeal based on

what was, in effect, a violation of his due process right to the

effective assistance of counsel on direct appeal. Id. at 400.

At first glance, Evitts could be taken to support peti-

tioner’s theory that, for any statutory grant of the right to

appeal a decision affecting criminal defendants, there is a

due process right to pursue that process with the assistance

of counsel. Other decisions clarify, however, that the Evitts

rule reaches no further than the circumstances of Evitts—a

direct appeal process that is an integral part of the state’s

system for adjudicating guilt or innocence. For example,

although a state may also allow a discretionary appeal to the

highest court, in addition to an appeal as of right to challenge

10

As the court explained in Evitts, it had long ago “held that the Constitution

does not require States to grant appeals as of right to criminal defendants seek-

ing to review alleged trial court errors.” 469 US at 393 (citing McKane v. Durston,

153 US 684, 14 S Ct 913, 38 L Ed 867 (1894)).

Cite as 362 Or 15 (2017) 31

a conviction, there is no due process right to pursue that

discretionary appeal with the assistance of counsel. Ross v.

Moffitt, 417 US 600, 610, 94 S Ct 2437, 41 L Ed 2d 341 (1974).

Applying that rule in a later case, Wainwright v. Torna, 455

US 586, 587-88, 102 S Ct 1300, 71 L Ed 2d 475 (1982), the

Court held that a criminal defendant whose retained law-

yer failed to file a timely petition for discretionary review in

the state’s highest court had no due process right to pursue

review with the assistance of counsel and, thus, no due pro-

cess right to a delayed opportunity for review. Similarly, in

Pennsylvania v. Finley, 481 US 551, 555, 107 S Ct 1990, 95 L

Ed 2d 539 (1987), the Court held that, although a state may

allow a process for collateral challenges to a conviction (such

as a post-conviction relief act), the defendant has no consti-

tutional right to pursue that process with the assistance of

counsel. As the Court explained in Finley, “[s]tates have no

obligation to provide this avenue of relief, and when they

do, the fundamental fairness mandated by the Due Process

Clause does not require that the State supply a lawyer as

well.” Id. at 557 (internal citation omitted).

As already emphasized, states have no constitu-

tional obligation to provide for judicial review of parole deci-

sions. See Swarthout, 562 US at 220-21. Thus, when a state

provides a statutory process for judicial review of a parole

decision, inmates have no due process right to be assisted

by adequate counsel before the petition for review is denied.

See Finley, 481 US at 555; Wainright, 455 US at 587-88.

That answer is not changed by Oregon’s adoption of

a statutory right to counsel to assist with judicial review, in

addition to a statutory process for judicial review. Finley pro-

vides the most pertinent guidance on this point. In Finley,

a prisoner whose murder conviction had been affirmed

on direct appeal sought relief under Pennsylvania’s Post

Conviction Hearing Act, which afforded a statutory right

to appointed counsel to assist with the process. Instead of

pursuing the prisoner’s claim, his appointed counsel advised

the court that he saw no merit to the claim, and the post-

conviction court dismissed the case. On review, the state

appellate court held that the attorney’s performance failed to

satisfy the standard that the Due Process Clause demands

when counsel is appointed to assist with a direct criminal

32 Haynes v. Board of Parole

appeal and, therefore, that the dismissal of the prisoner’s

case violated his constitutional right to the effective assis-

tance of counsel.11 481 US at 553-54.

In the Supreme Court, the prisoner relied on Evitts

for the proposition that a statutory right to counsel must be

equivalent to the due process right to counsel, but the Court

disagreed. 481 US at 557-58. As the Court explained:

“the fact that the defendant has been afforded assistance

of counsel in some form does not end the inquiry for fed-

eral constitutional purposes. Rather, it is the source of that

right to a lawyer’s assistance, combined with the nature of

the proceedings, that controls the constitutional question.”

Id. at 556. The Court emphasized that the nature of the

proceeding—a collateral challenge to a criminal conviction—

is “not part of the criminal proceeding itself,” that “[s]tates

have no obligation to provide this avenue of relief, and [that]

when they do, the fundamental fairness mandated by the

Due Process Clause does not require that the State supply a

lawyer as well.” Id. at 557 (internal citation omitted). Given

the nature of the proceedings, the Court concluded that the

only source of the right to counsel in Finley was state law

and, accordingly, it rejected the state court’s conclusion that

dismissing the prisoner’s case would violate his rights under

the Due Process Clause. Id. at 559.

Here, too, the proceeding—judicial review of a board

decision regarding the possibility of parole—is not part of

the criminal proceeding itself, is not an avenue of relief that

the state has a constitutional obligation to provide, and is

not a proceeding for which, when the state provides it, the

Due Process Clause requires the state to provide a lawyer

as well. Thus, the source of petitioner’s right to counsel is

purely the state’s decision to supply petitioner with a lawyer.

Given that source of the right to counsel, and the nature

of the judicial review proceeding at issue, we conclude that

petitioner has no due process right to be assisted by ade-

quate counsel before his petition for review is denied.

11

The lawyer in Finley had failed to comply with procedures that the

Supreme Court prescribed to assure that, when a criminal defendant’s appointed

counsel concludes there is no merit to the direct appeal, the defendant’s constitu-

tional right to counsel on direct appeal is, nevertheless, protected. See Anders v.

California, 386 US 738, 87 S Ct 1396, 18 L Ed 2d 493 (1967).

Cite as 362 Or 15 (2017) 33

III. CONCLUSION

As a matter of state law, petitioner’s right to judi-

cial review of the board’s decision is strictly contingent

upon filing a petition for review within the 60-day deadline.

Allowing petitioner to pursue review outside of the jurisdic-

tional time limit is not an appropriate remedy to address a

denial of his statutory right to counsel. Nor is he entitled to

that relief under the Due Process Clause, given the nature

of the judicial review proceeding.

The order of dismissal of the Court of Appeals is

affirmed.