Johnson v. NM Corrections Dept ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
REILLY JOHNSON,
Petitioner - Appellant,
v. No. 97-2177
NM CORRECTIONS DEPT;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO; JOHN
THOMAS, Warden for the New Mexico
State Penitentiary,
Respondents - Appellees.
ORDER
Filed May 1, 2006
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
Appellant’s motion to correct order and judgment is granted. The first sentence of
the second full paragraph will now read: Petitioner Reilly Johnson, appearing pro se, asks
us to grant him a certificate of appealability to appeal the district court's denial of his
habeas petition under 28 U.S.C. § 2254.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 28 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
REILLY JOHNSON,
Petitioner-Appellant,
v. No. 97-2177
(D.C. No. CIV-93-844)
NM CORRECTIONS DEPT.; (D. N.M.)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO; JOHN
THOMAS, Warden for the New
Mexico State Penitentiary,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Petitioner Reilly Johnson, a federal inmate appearing pro se, asks us to grant
him a certificate of appealability to appeal the district court's denial of his habeas
petition under 28 U.S.C. § 2254. This court will issue a certificate of appealability
when a petitioner makes a substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). Johnson challenges the state’s forfeiture of his accrued
good-time credits, contending he was denied his due process rights.
Johnson was convicted of first degree murder in 1982 and was sentenced to
a term of life imprisonment. He earned good-time credits which would advance his
parole eligibility date but, in 1986, a state attorney general opinion determined that
all prisoners serving determinate life sentences were not eligible for good-time
credits and Johnson’s credits were revoked.
Johnson contends revocation of his good-time credits violated the Ex Post
Facto Clause. As the district court determined, this issue is controlled by Stephens
v. Thomas, 19 F.3d 498 (10th Cir. 1994). A law violates the Ex Post Facto Clause
when it punishes behavior that was not punishable at the time it was committed or
increases punishment beyond the level imposed at the time it was committed. The
Ex Post Facto Clause does not prohibit the correction of the misapplication of an
existing law which disadvantages one in reliance on its continued misapplication.
Id. at 500.
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Johnson also contends his due process rights were violated. A state inmate’s
due process rights are implicated only when a state’s actions impinge on a protected
liberty interest. Id. at 501. Since Johnson was not entitled to the good-time credits,
his due process rights were not violated.
We DENY the certificate of appealability and DISMISS the appeal. The
mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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