Robert JOHNSON, Petitioner-Appellant, v. Al GOMEZ; Attorney General of the State of California, Respondents-Appellees

Robert Johnson is a California state prisoner who appeals the district court’s denial of his 28 U.S.C. § 2254 petition claiming that application of a 1988 change in the California Constitution violated the Ex Post Facto Clauses of the United States and California constitutions. The change authorized discretionary gubernatorial review of the Board of Prison Term’s (“BPT”) parole decisions regarding prisoners convicted of murder and sentenced to an indeterminate term. Johnson, who was in this class, was approved for parole and scheduled to be released the day after the 30-day period for gubernatorial review expired. On the 30th day, the governor, acting under the new law, revoked Johnson’s grant of parole.

The district court denied Johnson relief because it viewed the new law as effecting a procedural rather than a substantive change and held that such a procedural change could be given retroactive application. In this appeal we must consider the issue in light of the Supreme Court’s recent decision in California Dep’t of Corrections v. Morales, — U.S. —, 115 S.Ct. 1597 , 131 L.Ed.2d 588 (1995), that ex post facto principles do not bar retroactive application of procedural changes…