Brooks v. Poulos , 370 F. App'x 826 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 10 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SANDY BROOKS, No. 07-56452
Petitioner - Appellant, D.C. No. CV-05-01038-FMC
v.
MEMORANDUM *
MIKE POULOS,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted March 5, 2010*
Pasadena, California
Before: GOULD, IKUTA and N.R. SMITH, Circuit Judges.
Sandy Brooks appeals the district court’s denial of his habeas petition. On
appeal, Brooks argues that the California Department of Corrections and
Rehabilitation’s (“CDCR”) calculation of his earliest possible release date
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“EPRD”) violated both his federal due process rights and the federal Ex Post
Facto clause.
As to his due process claim, Brooks argued to the California state courts that
his liberty interests were violated because the CDCR did not properly calculate his
EPRD. We deny Brooks’s habeas petition on this ground, because the
determination of a formula for calculating the restoration of good time credits is an
unreviewable issue of state law, and the state court’s finding that the calculation of
good time credits was correct was not “an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). Moreover, this record does not demonstrate, and Brooks’s counsel
presented no evidence, that Brooks ever presented a due process claim to the state
courts based on any alleged lack of an appropriate hearing, such that the California
courts were given an “‘opportunity to pass upon and correct’ [the] alleged
violations of [Brooks’s] federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). Brooks,
therefore, failed to properly exhaust this claim under 28 U.S.C. § 2254(b)(1), and
we deny Brooks’s habeas petition on this ground.
As to his Ex Post Facto claim, Brooks did not make this argument to the
lower court or any of the California state courts, and thus failed to properly exhaust
it. We therefore deny Brooks’s habeas petition on this ground as well.
AFFIRMED.