Love v. Fitzharris, No. 25806.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | PER CURIAM |
| Citation | 460 F.2d 382 |
| Parties | Michael L. LOVE, Plaintiff-Appellee, v. C. J. FITZHARRIS, Warden, California State Prison, San Quentin, and the People of the State of California, Defendants-Appellants. |
| Docket Number | No. 25806. |
| Decision Date | 25 May 1972 |
460 F.2d 382 (1972)
Michael L. LOVE, Plaintiff-Appellee,
v.
C. J. FITZHARRIS, Warden, California State Prison, San Quentin, and the People of the State of California, Defendants-Appellants.
No. 25806.
United States Court of Appeals, Ninth Circuit.
May 25, 1972.
Gary Garfinkle, Deputy Atty. Gen. (argued), Derald E. Granberg, Deputy Atty. Gen., Thomas C. Lynch, Evelle J. Younger, Attys. Gen., San Francisco, Cal., for defendants-appellants.
Patrick Lynch (argued), Los Angeles, Cal., for plaintiff-appellee.
Before KOELSCH and HUFSTEDLER, Circuit Judges, and JAMESON,* District Judge.
PER CURIAM:
Michael Louis Love, the appellee, is a California state prisoner, serving consecutive sentences for two violations of Cal. Health & Safety Code § 11500.5 possession
The State Department of Corrections, at the time Love began serving his sentence, took the position that in cases of single sentences § 11500.5 fixed the time when a prisoner would be eligible for parole, but where consecutive sentences had been imposed § 3049 applied. Thus the Department, consistent with this view and following its usual practice, sent Love a formal "Notice of Legal Status" advising him that, on the basis of the combined minimum sentences of ten years on his two convictions, he would be eligible for parole in one-third of that time, that is, three years and four months.
However, shortly afterward, the Department, upon receiving an opinion of the Attorney General, reinterpreted the parole eligibility provisions with respect to consecutively sentenced narcotics offenders, and concluded that persons serving consecutive terms for violations of § 11500.5 would be eligible for parole only after serving 2½ years imprisonment on each consecutive sentence. The Department thereupon issued to Love a "corrected" Notice of Legal Status, informing him that his minimum parole eligibility was 5 years, not 3 years-4 months, as determined earlier.
After exhausting his state remedies, Love petitioned the District Court for a writ of habeas corpus; he urged that the Department's application of its new parole eligibility criteria retroactively to his sentence violated the ex post facto and due process clauses of the United States Constitution. The District Court agreed, and ordered the state to restore his parole eligibility at 3 years-4 months. Love v....
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Jackson, In re, No. C
...opportunity[703 P.2d 108] for parole" (id., at p. 173), Rodriguez is inapposite. Equally inapposite is Love v. Fitzharris (9th Cir.1972) 460 F.2d 382, vacated on other grounds (1973) 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682. There, the Department of Corrections informed a California inma......
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Milhouse v. Levi, No. 75-1844
...before attaining eligibility for parole, violated the constitutional provisions against ex post facto laws. Love v. Fitzharris, Page 364 460 F.2d 382 (9th Cir. 1972) vac. as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973). The Supreme Court, while not directly embracing the rationa......
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Monahan v. Winn, No. CIV.03-40075-NG, CIV.03-10308-NG, CRIM.01-10385-NG, CIV.03-40139-NG.
...922 F.2d 1558, 1561 (11th Cir.1991), Rodriguez v. United States Parole Comm'n, 594 F.2d 170, 174 (7th Cir.1979), and Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir.1972)). The Hamm court unearthed other cases that "can be read" to hold that agency rules are not "laws" for purposes of Ex Pos......
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Lerner v. Gill, No. 82-208-C
...are not controlling and need not be followed. Lerner, in making his ex post facto argument, places great emphasis on Love v. Fitzharris, 460 F.2d 382 (9th Cir.1972), since its factual pattern is somewhat similar to what happened when the parole board first considered Lerner's eligibility st......
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Jackson, In re, No. C
...opportunity[703 P.2d 108] for parole" (id., at p. 173), Rodriguez is inapposite. Equally inapposite is Love v. Fitzharris (9th Cir.1972) 460 F.2d 382, vacated on other grounds (1973) 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682. There, the Department of Corrections informed a California inma......
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Monahan v. Winn, No. CIV.03-40075-NG, CIV.03-10308-NG, CRIM.01-10385-NG, CIV.03-40139-NG.
...922 F.2d 1558, 1561 (11th Cir.1991), Rodriguez v. United States Parole Comm'n, 594 F.2d 170, 174 (7th Cir.1979), and Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir.1972)). The Hamm court unearthed other cases that "can be read" to hold that agency rules are not "laws" for purposes of Ex Pos......
-
Lerner v. Gill, No. 82-208-C
...are not controlling and need not be followed. Lerner, in making his ex post facto argument, places great emphasis on Love v. Fitzharris, 460 F.2d 382 (9th Cir.1972), since its factual pattern is somewhat similar to what happened when the parole board first considered Lerner's eligibility st......
-
Monahan v. Winn, Civ. No. 03-40075-NG.
...922 F.2d 1558, 1561 (11th Cir. 1991), Rodriguez v. United States Parole Comm'n, 594 F.2d 170, 174 (7th Cir. 1979), and Love v. Fitzharris, 460 F.2d 382, Page 385 (9th Cir. 1972)). The Hamm court unearthed other cases that "can be read" to hold that agency rules are not "laws" for purposes o......