Andrew G. Holguin, Jr. v. Robert R. Raines

Appellant, Andrew Holguin, appeals the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254 . He contends that the district court erred in concluding that the Arizona Department of Correction’s change in its method of calculating parole eligibility on consecutively imposed sentences, which applied retroactively to his detriment, did not violate the prohibition against ex post facto laws contained in the United States Constitution. We affirm.

I.

On July 8, 1972, Holguin began serving three concurrent ten to twenty year sentences after conviction on three counts of assault with a deadly weapon. On February 28,1973, Holguin received an additional sentence of nine to ten years for kidnapping to run consecutively with his earlier sentences for assault.

At the time of sentencing on both counts, the Arizona statute governing eligibility for parole provided:

Ariz.Rev.Stát. § 31-411(A)(1). The Arizona Department of Corrections, relying on a 1973 unpublished opinion of the Arizona Attorney General, determined parole eligibility for consecutive sentences by taking one-third of the total minimum terms of *373 imprisonment — adding the consecutive sentences…

dissenting.

I

Only the majority’s unjustifiably broad reading of the Arizona Supreme Court’s decision in Mileham serves as an arguable basis for its validation of the state’s constitutionally impermissible attempt to restrict Appellant’s eligibility for parole. A more careful and restrained analysis of Mileham leads to the inescapable conclusion that the State’s conduct in this case violates the Constitution’s prohibition against ex post facto punishment.

The ex post facto clause of the Constitution forbids legislation that operates to the “substantial disadvantage” of prisoners, whether or not the legislation is “technically an increase in the punishment annexed to the crime.” Lindsey v. Washington, 301 U.S. 397, 401-02 , 57 S.Ct. 797, 799 , 81 L.Ed. 1182 (1937). In Love v. Fitzharris, 460 F.2d 382 (9th Cir.1972), vacated as moot, 409 U.S. 1100 , 93 S.Ct. 896 , 34 L.Ed.2d 682 (1973), we emphasized that application of the ex post facto clause is not limited to acts of legislation. On the contrary, “[a] new administrative interpretation which subjects the prisoner already sentenced to more severe punishment has the same effect as a new statute lengthening his present term or a…

695 F.2d 372 Andrew G. HOLGUIN, Jr., Plaintiff-Appellant, v. Robert R. RAINES, Defendant-Appellee. No. 80-5782. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 10, 1981. Decided Dec. 23, 1982. Dale A. Danneman, Lewis & Roca, Phoenix, Ariz., for plaintiff-appellant. Rory C.H. Abate, Phoenix, Ariz., for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before POOLE and REINHARDT, Circuit Judges, and LYDICK, * District Judge. POOLE, Circuit Judge. 1 Appellant, Andrew Holguin, appeals the district court's denial of his petition for habeas corpus under 28 U.S.C. Sec. 2254 . He contends that the district court erred in concluding that the Arizona Department of Correction's change in its method of calculating parole eligibility on consecutively imposed sentences, which applied retroactively to his detriment, did not violate the prohibition against ex post facto laws contained in the United States Constitution. We affirm. I. 2 On July 8, 1972, Holguin began serving three concurrent ten to twenty year sentences after conviction on three counts of assault with a deadly weapon. On February 28, 1973, Holguin received an…