Johnson v. Duffy

Filing 16

ORDER signed by Magistrate Judge Dale A. Drozd on 6/8/15 ORDERING that the court declines to issue a certificate of appealability in this case; and the Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit Court of Appeals. (cc Ninth Circuit) (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OSHAY JOHNSON,

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No. 2:13-cv-1962 DAD P

Petitioner,

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v.

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DUFFY,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. The Ninth Circuit Court of Appeals has remanded this case to the

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district court for the limited purpose of granting or denying a certificate of appealability.
By way of background, on August 13, 2014, this court dismissed petitioner’s petition for a

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writ of habeas corpus because it failed to state a cognizable claim for federal habeas corpus

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relief.1 (Doc. No. 6) Specifically, the court found that petitioner failed to state a cognizable

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claim for federal habeas relief based on the California Board of Parole Hearings’ alleged

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summary denial of his request to advance his next parole hearing. (Id.) This court also found that

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petitioner failed to state a cognizable claim for federal habeas relief under the Ex Post Facto

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Clause based on the California Department of Corrections and Rehabilitation (“CDCR”) alleged

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Petitioner has previously consented to Magistrate Judge jurisdiction over this action pursuant to
28 U.S.C. § 636(c). (Doc. No. 4)
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altering the procedure used to calculate his minimum eligible parole date. (Id.) In the order

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dismissing the petition, the court declined to issue a certificate of appealability. (Id.) The court

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entered judgment on the same day. (Doc. No. 7) Subsequently, petitioner filed a motion for

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reconsideration of the court’s order of dismissal with respect to his claim brought under the Ex

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Post Facto Clause. (Doc. No. 8) On March 26, 2015, this court denied petitioner’s motion for

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reconsideration. (Doc. No. 9) Petitioner has appealed this court’s denial of his motion for

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reconsideration.

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The court declines to issue a certificate of appealability in this case. Specifically,
petitioner has not made “a substantial showing of the denial of a constitutional right, a

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demonstration that . . . includes showing that reasonable jurists could debate whether (or, for that

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matter, agree that) the petition should have been resolved in a different manner or that the issues

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presented were adequate to deserve encouragement to proceed further.” See 28 U.S.C. § 2253;

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Slack v. McDaniel, 529 U.S. 473 (2000) (internal quotations omitted). As discussed in the

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court’s order denying petitioner’s motion for reconsideration, the Ninth Circuit Court of Appeals

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has made clear that a prisoner does not have a “vested right” under the Ex Post Facto Clause of

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the Constitution in erroneous interpretations of the law. See Mileham v. Simmons, 588 F.2d

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1279, 1280 (9th Cir. 1979). In this regard, petitioner’s Ex Post Facto claim based on changes

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CDCR made to MEPD procedures in light of a California Supreme Court decision does not state

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a cognizable claim for federal habeas corpus relief.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The court declines to issue a certificate of appealability in this case; and

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2. The Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit

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Court of Appeals.

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Dated: June 8, 2015

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DAD:9
john1962.coa

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