Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 410 (9th Cir. 1990)

Raymond Gary STELLJES, Petitioner-Appellant,v.Manfred MAASS; State of Oregon; Respondents-Appellees.

No. 89-35369.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 12, 1990.* Decided Jan. 19, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.


MEMORANDUM** 

Stelljes appeals the dismissal of his habeas corpus petition. He argues that the imposition of a mandatory minimum sentence of five years violates his right to due process. For the following reasons, we reject this contention and affirm.

BACKGROUND

Stelljes received a five year sentence for being an ex-felon in possession of a firearm, threatening the use of a firearm during a felony, and menacing. Or.Rev.Stat. Sec. 166.270, Sec. 161.610, Sec. 163.190 (1987). The conviction for the threatened use of a firearm during a felony carries a mandatory minimum sentence of five years. Or.Rev.Stat. Sec. 161.610. The trial court heeded this requirement and sentenced Stelljes to serve a minimum of five years of his maximum sentence of five years.1 

He contends this was error, and a violation of due process, because Or.Rev.Stat. Sec. 144.10(1) gives courts the discretion to impose a minimum sentence of up to one-half the sentence imposed. He argues that he had a legitimate expectation that he would receive a minimum sentence, up to one-half of the five year sentence, calculated pursuant to Sec. 144.10(1).

ANALYSIS

We review de novo the denial of a petition for habeas corpus. United States v. Poppola, 881 F.2d 811, 812 (9th Cir. 1989).

Section 144.10(1) grants to courts the discretionary power to calculate a minimum sentence of up to one-half the sentence imposed. The relevant statutory language states:

In any felony case, the court may impose a minimum term of imprisonment of up to one-half the sentence it imposes.

Id. Stelljes appears to argue that this language creates an expectation that courts will utilize this discretion, and that this expectation rises to the level of a protectible liberty interest. This argument is both unfounded and unsound.

Stelljes concedes he has no authority to support his argument. Nor does he attempt to analogize to any relevant cases.2  The government, however, has pointed out the only applicable authority and applied it. In Meachum v. Fano, 427 U.S. 215, 225, (1976) and Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979), the Supreme Court considered the question of when statutory language creates a protectible liberty interest in the expectation of parole. The Court held that only mandatory language such as "shall/when" creates such a protected interest. Greenholtz, 442 U.S. at 12. No such language is found in the relevant Oregon statutes.

As mentioned above, the statute authorizing the imposition of up to one half a sentence as a minimum sentence is only a grant of discretionary power. Although the government correctly points out that the Oregon statutes do create a liberty interest in an inmate's expectation of a parole hearing, Stelljes has already received that. AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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 Ninth Circuit Rule 36-3

 1

The Oregon Court of Appeals has already considered the question of whether the trial court erred in imposing the mandatory minimum sentence required by Or.Rev.Stat. Sec. 161.610. State v. Stelljes, 735 P.2d 24 (Or.Ct.App.1987), review denied, 739 P.2d 571 (Or.1987). There, the court found found no conflict between the discretionary power in Sec. 141.10(1) and the mandatory minimum required by Sec. 161.610. Id. at 25-26. We agree. A mandatory statutory requirement should not be overidden by a merely permissive statutory provision. See id

 2

Stelljes concedes that the cases he does cite for analogous support do not concern constitutional issues. He attempts to build a house without bothering to lay a foundation