Johnson v. Duffy

Filing 9

ORDER denying 8 Motion for Reconsideration signed by Magistrate Judge Dale A. Drozd on 03/25/15. (Plummer, 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. On August 13, 2014, the 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 relief.1 (Doc.

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No. 6) The court entered judgment on the same day. (Doc. No. 7) Pending before the court is

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petitioner’s motion for reconsideration. (Doc. No. 8)
In his motion, petitioner asks the court to reconsider whether his petition states a

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cognizable claim under Ex Post Fact Clause. In petitioner’s view, he has established that the

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California Department of Corrections and Rehabilitation (“CDCR”) violated the Ex Post Facto

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Clause by altering the procedure used to calculate his minimum eligible parole date. (Pet’r’s Mot.

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for Recons. at 1-2.)

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Petitioner has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C.
§ 636(c). (Doc. No. 4)
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Petitioner’s motion fails to show that he is entitled to relief. Petitioner contends that he is

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entitled to relief under Love v. Fitzharris, 460 F.2d 382 (9th Cir. 1972), vacated as moot, 409 U.S.

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1100 (1973). However, as an initial matter, petitioner is advised that not long after the Ninth

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Circuit Court of Appeals issued its decision in Love, the United States Supreme Court vacated the

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judgment in that case and remanded the case back to the Ninth Circuit with directions to dismiss

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the case as moot. See Fitzharris v. Love, 409 U.S. 1100 (1973). Moreover, since the Ninth

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Circuit decided Love, it has clarified that a prisoner does not have a “vested right” under the Ex

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Post Facto Clause of the Constitution in erroneous interpretations of the law. Mileham v.

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Simmons, 588 F.2d 1279, 1280 (9th Cir. 1979). In this regard, the Ninth Circuit has

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“distinguished between a change in an administrative interpretation of state law made by the

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agency itself, such as that found in Love v. Fitzharris, and a court decision authoritatively

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construing state law.” Holguin v. Raines, 695 F.2d 372, 374 (9th Cir. 1982). In the latter case, as

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here, the Ninth Circuit has held that the Ex Post Facto Clause by its own terms does not apply.

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See id. (citing Mileham, 588 F.2d at 1280). See also Madrid v. Trimble, No. EDCV 12-0962

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PSG (SS), 2013 WL 5951971 at *6-*7 (C.D. Cal. Nov. 6, 2013) (rejecting petitioner’s claim that

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CDCR violated the Ex Post Facto Clause when it changed its method for calculating an MEPD

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because CDCR’s changes were dictated by California court decisions). Once more, petitioner has

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not established that CDCR has violated clearly established federal law, and therefore, petitioner is

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not entitled to relief.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for reconsideration

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(Doc. No. 8) is denied.

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Dated: March 25, 2015

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DAD:9
john1962.motr

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