Mesce v. Pliler

Full title: Richard Canniff MESCE, Petitioner--Appellant, v. Cheryl PLILER, Warden…

Court: United States Court of Appeals, Ninth Circuit

Date published: Oct 24, 2003

82 F. App'x 179 (9th Cir. 2003)

Opinion

82 Fed.Appx. 179 (9th Cir. 2003) Richard Canniff MESCE, Petitioner--Appellant, v. Cheryl PLILER, Warden; C.A. Terhune, Director of the CDC, Respondents--Appellees. No. 02-16345. United States Court of Appeals, Ninth Circuit. October 24, 2003

Argued and Submitted Oct. 10, 2003.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

State prisoner petitioned for writ of habeas corpus after he was convicted of firearm possessory offense, and his conviction was affirmed on appeal, 52 Cal.App.4th 618, 60 Cal.Rptr.2d 745. The United States District Court for the Northern District of California, Jeremy Fogel, J., denied petition. Petitioner appealed. The Court of Appeals held that decision of California Court of Appeal, that statute prohibiting possession of firearm after conviction on particular misdemeanor offense did not violate ex post facto clause even though defendant's misdemeanor conviction predated statute's effective date, was not contrary to, or unreasonable application of, clearly established federal law.

Affirmed.

Appeal from the United States District Court for the Northern District of California, Jeremy Fogel, District Judge, Presiding. D.C. No. CV-98-20500-JF.

Before: CUDAHY, ^* BEEZER, and KLEINFELD, Circuit Judges.

* The Honorable Richard D. Cudahy, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

We need not decide whether prohibition of firearms possession for misdemeanants convicted before the prohibition constitutes a violation of the prohibition against Ex Post Facto laws contained in the United States Constitution. Under the Anti-Terrorism and Effective Death Penalty Act of 1996, we decide only whether the California Court of Appeal decision ¹ was contrary to or an unreasonable application of clearly

1 Because it is the last reasoned decision, we look to the California Court of Appeal's decision as the basis for the state court's judgment that the California Penal Code Section 12021(c) does not constitute an ex post facto law. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)).

Page 180.

established federal law as set out by the Supreme Court. ² Mesce cites no Supreme Court decision with materially similar facts to which the state decision was "contrary." The California Court of Appeal not unreasonably held that Weaver v. Graham ³ would not make Mesce's conviction an ex post facto violation because he possessed the gun after the law criminalizing possession was passed, and that law did not add to his punishment for misdemeanor assault but, rather, under California Department of Corrections v. Morales, ⁴ merely identified a class subject to prospective regulation because of an established propensity for violence in the past.

2 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1173, 155 L.Ed.2d 144 (2003).

3 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1980).

4 514 U.S. 499, 506-507 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).

AFFIRMED.