Rathert

MEMORANDUM *

Russel Ray Rathert, Jr. appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition, challenging his conviction for second degree burglary. Rathert was sentenced under California’s three strikes law to a prison term of twenty-five years to life with the possibility of parole. Because the parties are familiar with the underlying facts and complex procedural history of the case, we do not recite them here.

A line of Supreme Court cases clearly establishes that unforeseeable judicial enlargement of a criminal statute, applied retroactively, violates the federal due process right to fair warning of what constitutes criminal conduct. See Bouie v. City Columbia, 378 U.S. 347 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964). “[Tjhat persons have a right to fair warning of that conduct which will give rise to criminal penalties is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” Marks v. United States, 430 U.S. 188, 191-92 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977) (citations omitted). See also Rogers v. Tennessee, 532 U.S. 451, 459 , 121 S.Ct. 1693 , 149…