Gerald Wilson v. Stuart Sherman

MEMORANDUM

Petitioner Gerald Wilson appeals from the district court’s dismissal of his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), and we affirm.

In his habeas petition, Wilson claims that the California Department of Corrections and Rehabilitation (CDCR) violated the Ex Post Facto Clause of the United States Constitution, U.S. Const. art. I, § 9, cl. 3, when it ceased granting Wilson prison credits pursuant to the decisions in People v. Stofle, 45 Cal.App.4th 417 , 52 Cal.Rptr.2d 829 (1996), and In re Cervera, 24 Cal.4th 1073 , 103 Cal.Rptr.2d 762 , 16 P.3d 176 (2001). Wilson could have discovered the change in CDCR’s calculation of prison credits, the factual predicate of his claim, through the exercise of due diligence earlier than one year before he filed his state habeas petition on December 7, 2009. During the period from October 13, 1995, through at least December 25, 2009, California law required the CDCR to calculate an inmate’s prison credits and forward the new legal status summary sheet to the inmate. Cal. Code. Regs. tit. 15, § 3043(c)(2)(B) (current Oct. 13, 1995); id. §…