Mileham v. SimmonsMileham v. Simmons
- Reporters:
- ,
- Before:
- Duniway, Choy, East
B. Michael Dann, Phoenix, Ariz., on brief, for defendants-appellants.
Cleon M. Duke, Asst. Atty. Gen., Phoenix, Ariz., on brief, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before DUNIWAY and CHOY, Circuit Judges, and EAST,* District Judge.
OPINION
DUNIWAY, Circuit Judge:
Mileham‘s custodians and the chairman of Arizona‘s Board of Pardons and Paroles appeal from an order granting Mileham‘s petition for a writ of habeas corpus. We reverse.
On October 18, 1971, Mileham, an Arizona state prisoner, was convicted of escaping in violation of
When Mileham was convicted of escape, the Board of Pardons and Paroles, pursuant to a letter to the Board from an Assistant Attorney General, dated March 23, 1971, determined the time when a prisoner subject to consecutive sentences would become eligible for parole under
On October 24, 1973, the Attorney General of Arizona ruled that under
Mileham carried his case to the Arizona Supreme Court, which ruled against him. Mileham v. Arizona Board of Pardons and Paroles, 1973, 110 Ariz. 470, 520 P.2d 840. The court concluded that
The District Judge, relying on our decision in Love v. Fitzharris, 9 Cir., 1972, 460 F.2d 382, Vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682, ordered the Board to grant Mileham a parole hearing. This was error. In Love, the California Department of Corrections had in effect, when Love received consecutive sentences, a rule similar to that stated in the Arizona Assistant Attorney General‘s letter of March 23, 1971. Shortly after, the Department, on advice of the California Attorney General, changed its rule, thereby lengthening the time Love had to serve before becoming eligible for parole. We held that the change, coming after Love was sentenced, amounted to an Ex post facto increase in punishment, although imposed by “administrative fiat” rather than be “legislative action.” Mileham‘s case is different. The Supreme Court of Arizona has now authoritatively construed the statute that was in effect when Mileham was convicted, thus holding that the Assistant Attorney General‘s interpretation was erroneous. The Ex post facto clause of the Constitution does not give Mileham a vested right in such an erroneous interpretation. In Love we said:
Absent a court pronouncement on the matter, the interpretation of the relationship between the statutes placed upon them by the administrative agency charged with their enforcement has the force and effect of law.
(Emphasis added) (p. 385)
In Mileham‘s case, we have “a court pronouncement on the matter” by Arizona‘s highest court.
More closely in point is In re Costello, 9 Cir., 1958, 262 F.2d 214, in which we held that the California rule that, if a parolee violates the terms of his parole, his sentence is redetermined at the maximum, even though previously fixed at a lesser term, does not present a federal question. See also, Forman v. Wolff, 9 Cir., 1978, 590 F.2d 283; Rifai v. United States Parole Commission, 9 Cir., 1978, 586 F.2d 695. In Forman, we found the Nevada Supreme Court‘s construction of the applicable statute not to be “unforeseeable.” We here find the Arizona Court‘s construction of the applicable statute not to be “unforeseeable.” DePeralta v. Garrison, 9 Cir., 1978, 575 F.2d 749, is not in point, for the reasons stated in Rifai, supra, 586 F.2d at 698.
The order appealed from is reversed.