Opinion
No. 05-35899.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 22, 2007.
Anthony David Bornstein, Esq., Federal Public Defender's Office, Portland, OR, for Petitioner-Appellant.
Carolyn Alexander, Esq., Attorney General Office of Oregon, Salem, OR, for Respondent-Appellee.
Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-04-00337-DCA.
Before: D.W. NELSON, KLEINFELD, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Under Oregon law, the state parole board had the statutory authority to mandate pre-parole psychological testing before the promulgation of the regulations from which Shelby seeks exemption. Since the Oregon statute was in force prior to Shelby's crimes, its enforcement cannot present an ex post facto problem.
See Or.Rev.Stat. § 144.223(1) (enacted 1977); Gholston v. Palmateer, 183 Or.App. 7, 51 P.3d 617, 618(2002).
Moreover, the contested regulations were also enacted prior to Shelby's refusal to participate in psychological testing, so their enforcement would not run afoul of the ex post facto clause.
See Hunter v. Ayers, 336 F.3d 1007 (9th Cir. 2003).
Shelby's request for a federal evidentiary hearing is without merit. Shelby had an opportunity to develop the facts of this claim in state court in opposition to the state's motion to dismiss, and he did not at that time submit any evidence.
AFFIRMED.