Birch

MEMORANDUM **

The district court properly denied Appellant Martin Birch’s (Birch) habeas petition.

*706 Birch timely filed his federal habeas petition, because his signed petition relates back to his originally filed unsigned petition. See Becker v. Montgomery, 532 U.S. 757, 765 , 121 S.Ct. 1801 , 149 L.Ed.2d 983 (2001); see also Fed.R.Civ.P. 11(a).

Birch fails to establish an ex post facto violation, as the Oregon Board of Parole and Post-Prison Supervision’s decision comported with the standard applicable at the time of Birch’s commitment offenses. See Or.Rev.Stat. (O.R.S.) § 144.125 (1981) (1989).

Birch’s claim regarding the adequacy of the psychologist’s diagnosis is waived, because Birch did not present this claim to the district court. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994) (“Habeas claims that are not raised before the district court in the petition are not cognizable on appeal.”) (citation omitted).

Birch fails to provide clear and convincing evidence that the state court’s factual determination regarding the adequacy of the diagnosis was unreasonable. See Anderson v. Terhune, 467 F.3d 1208, 1212 (9th Cir.2006) (“[S]tate-court factual findings…

dissenting:

Martin Birch was convicted in 1981 and 1989. Prior to a 1993 amendment, Oregon’s parole review statute required an expert diagnosis as a prerequisite to a decision by the Oregon Board of Parole and Post Prison Supervision (“Board”) to postpone a prisoner’s parole date. See Or.Rev.Stat. § 144.125(3) (1981) (1989); see also Newcomb v. Thompson, 176 Or. App. 167 , 33 P.3d 319, 320 (2001) (holding that the Board could not make a finding of present severe emotional disturbance absent a “cognizable psychiatric or psychological diagnosis”) (citation and internal quotation marks omitted); Weidner v. Armenakis, 154 Or .App. 12, 959 P.2d 623, 627 (1998), withdrawn by order July 17, 1998, reasoning reaffirmed and readopted in Merrill v. Johnson, 964 P.2d 284 (Or.Ct. App.1998) 1 (interpreting Oregon Revised Statute section 144.125(3) (1989) and holding that a “psychiatric or psychological diagnosis” was a “prerequisite to the Board’s consideration of whether the statutory criteria [for parole] have been met”).

The psychological evaluation at issue here described Birch as “a highly irrational and impulsive individual who appears unmotivated to personal treatment or behavioral…