Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 1320 (9th Cir. 1989)

No. 89-35087.

United States Court of Appeals, Ninth Circuit.

Before PREGERSON, TROTT, and RYMER Circuit Judges.

MEMORANDUM** 

The Oregon Parole Board ("the Board") set Edward B. Steele's parole release date beyond the guideline matrix range after making a finding of aggravating circumstances.1  After exhausting his state remedies, Steele filed a habeas corpus petition arguing that the Board's decision rested in part on unreliable evidence, and thus violated his right to due process. Applying this court's decision in Jancsek v. Oregon Board of Parole, 833 F.2d 1389 (9th Cir. 1987), the district court denied Steele's petition on the ground that the Board's finding of aggravating circumstances rested on some reliable evidence, and thus satisfied due process. On appeal, Steele contends that Jancsek was wrongly decided. For the reasons discussed below, we find Steele's contention meritless and affirm.

STANDARD OF REVIEW

We review de novo the district court's denial of Steele's habeas corpus petition. Jancsek v. Oregon Board of Parole, 833 F.2d 1389 (9th Cir. 1987).

DISCUSSION

I. Evidentiary Standard for Reviewing State Parole Board Decisions

In Jancsek v. Oregon Board of Parole, 833 F.2d 1389 (9th Cir. 1987), we held that due process is satisfied if a state parole board's decision is supported by some reliable evidence. Steele contends that Jancsek applied an improper standard regarding the quantum of evidence necessary to satisfy due process.

Steele's argument that Jancsek should be reversed is not appropriate on appeal to this panel. Under the rule of interpanel accord, the Jancsek decision is a binding precedent of this court that we can only overrule upon en banc rehearing. See Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1320 (9th Cir. 1981); Charleston v. United States, 444 F.2d 504, 506 (9th Cir. 1971). Consequently, Jancsek sets the proper evidentiary standard for reviewing state parole board decisions.

II. Application of the "Some Reliable Evidence" Standard

Steele argues that the Board's finding of aggravating circumstances rested on unreliable evidence. Specifically, he challenges the Board's findings of "verified instances of repetitive assaultive conduct," and "persistent involvement in similar criminal offenses." Steele contends that those findings were improperly based on dismissed charges and acquittals. However, the Board's decision did not rest solely on the aforementioned grounds. The Board also based its finding of aggravating circumstances on three other factors: 1) "the degree of personal injury is substantially greater than characteristic for the crime in that the victim was shot in the foot;" 2) "criminal history is more extensive than reflected by history/risk score, indicating a prior manslaughter;" 3) "victim was vulnerable in that he was asleep in his own bed at the time of the incident." Steele does not challenge the reliability or sufficiency of the evidence used to support the above three findings. Therefore, Steele concedes that some reliable evidence supports the Board's decision. Accordingly, under Jancsek, Steele's due process rights have not been violated.

AFFIRMED.

 *

The panel unanimously found this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

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

 1

Under Oregon law, the Board must conduct a hearing within the first year of imprisonment in order to establish an initial parole release date. Or.Admin.R. 255-30-010(1). At the hearing, the Board calculates a matrix range according to statutory guidelines. Or.Rev.Stat. 144.120; Or.Admin.R. 255-35-015. The calculation produces a range of acceptable initial parole release dates. The Board may then adjust these dates based upon aggravating or mitigating circumstances. Or.Admin.R. 255-35-013(d); 255-35-016. In Steele's case, the Board set the matrix range at 44-56 months. After finding aggravating circumstances, the Board increased the range by an additional 24 months and set Steele's initial parole release date at 80 months--the maximum variation allowed under the rule. See Former Or.Admin.R. 255-35-035