590 F.2d 283 (9th Cir. 1978), 77-4030, Forman v. Wolff

Docket Nº:77-4030.
Citation:590 F.2d 283
Party Name:Ned George FORMAN, Petitioner-Appellant, v. Charles L. WOLFF, Jr., et al., Respondent-Appellee.
Case Date:November 20, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 283

590 F.2d 283 (9th Cir. 1978)

Ned George FORMAN, Petitioner-Appellant,


Charles L. WOLFF, Jr., et al., Respondent-Appellee.

No. 77-4030.

United States Court of Appeals, Ninth Circuit

November 20, 1978

Rehearing and Rehearing En Banc Denied Jan. 8, 1979.

Page 284

Burton Marks (argued), Los Angeles, Cal., for petitioner-appellant.

John L. Conner, Chief Deputy Dist. Atty. (argued), Reno, Nev., for respondent-appellee.

Appeal from the United States District Court for the District of Nevada.

Before DUNIWAY and CHOY, Circuit Judges, and RENFREW [*], District Judge.


Ned George Forman appeals from the federal district court's denial of habeas relief. We affirm.

I. Statement of the Case

On April 29, 1974, Forman pleaded guilty in Nevada state court to an information charging illegal sale of cocaine and received a sentence of fifteen years in Nevada state prison. Two years later the Nevada Supreme Court held that the statute under which Forman had been prosecuted required the prosecution to allege and prove the defendant's age as an essential element of the crime. Hass v. State, 92 Nev. 256, 548 P.2d 1367 (1976).

Forman then filed a petition for habeas corpus in Nevada state district court, claiming that the state had failed to allege his age in its information. The state court ordered Forman's unconditional release. The state of Nevada appealed to the Nevada Supreme Court. Noting that it overruled Hass that very day in State v. Wright, 92 Nev. 734, 558 P.2d 1139 (1976), the Nevada Supreme Court reversed the granting of habeas relief. Warden v. Forman, 92 Nev. 739, 558 P.2d 1141 (1976). The state district court ordered Forman remanded to custody.

Forman then filed a petition for habeas corpus under 28 U.S.C. § 2254 in federal district court, claiming that his remand into custody violated the ex post facto and double jeopardy provisions of the United States Constitution. From the district court's denial of those claims Forman appeals.

II. Ex Post Facto Clause

The ex post facto clause limits the powers of the legislature and does not of its own force apply to the judicial branch. Marks v. United States,430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Nonetheless, the courts have recognized that the principle of fair warning underlying the ex post facto clause limits the retroactive...

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