Antonio Sanchez Palacios, Petitioner-appellant, v. Frank Thompson, Superintendent Oregon State Penitentiary;marva Fabien, Chairperson of the Oregon Board Ofparole, Respondents-appellees, 139 F.3d 907 (9th Cir. 1998)

MEMORANDUM^* 

Antonio Sanchez Palacios, an Oregon state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253 and we review de novo. See Woratzeck v. Stewart, 97 F.3d 329, 332 (9th Cir. 1996), cert. denied, --- U.S. ----, 117 S. Ct. 1443, 137 L. Ed. 2d 549 (1997). We affirm.

Palacios contends that a presumption of vindictiveness arose when the Oregon Board of Parole and Post-Prison Supervision ("the Board") increased his term of imprisonment following Palacios' assertion of his right to have the length of his prison term considered under the proper interpretation of an administrative rule. This contention lacks merit.

A presumption of vindictiveness applies when a judge imposes a more severe sentence upon retrial after a defendant successfully appeals. See North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). However, that presumption does not arise where a parole board's reconsideration is not based on reversal of a term of imprisonment by a higher authority. See Weaver v. Maass, 53 F.3d 956, 959-60 (9th Cir. 1995) (stating that there is no basis to presume vindictiveness where parole board was motivated by state court decisions in other cases and not by reversal of petitioner's prison term by a higher authority).

Here, the Board reconsidered Palacios' prison term at his request following the state court decision in Roof v. Board of Parole, 85 Or.App. 188, 736 P.2d 193 (Or.Ct.App.1987) which required the Board to consider consecutive minimum sentences as a single unified minimum and either sustain or override all consecutive minimum sentences. Because the Board's initial decision setting Palacios' prison term was not reversed by the Oregon courts or any other authority, the Pearce presumption of vindictiveness does not arise in this case. See Weaver, 53 F.3d at 959-60.

AFFIRMED.