Ex post facto clause protects individuals against subsequently passed laws that change the individual's substantive rights without notice and a right to be heard on the issue. In order to establish a claim under the Ex Post Facto Clause: (1) the challenged state action must be a law; (2) the law must apply to events occurring before its enactment; and (3) the law must be detrimental to the person to whom it isbeing applied. See Nulph v. Faatz, 27 F.3d 451, 455 (9th Cir.1994)In most cases, where the change in the law is deemed procedural rather than substantive to the individual's rights, it does not fall within the perview of the ex post facto clause.
However, there is some support for the contention that a change in sentencing credits violates the Ex Post Facto Clause. You must deonstrate that:
1. The law change occurred after sentencing;
2. That the change had retroactive application to your sentence; and
3. That the change was to your detriment.
In an unpublished case in the federal Court of Appeals, 9th Circuit, Fleming v. Oregon Board of Parole, parole regulations were amended from allowing a 20% cap in the reduction in jail time for the complete sentence to a reduction of seven months for each 3 year parole review.
Fleming exhausted his remedied in State court and then filed in Federal Courtseeking a determination that the change in the parole regulations voiolated theex post facto clause. The Court decided that parole regulations affect "eligibility for reduced imprisonment" such that they would be "a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed."
In short, it would seem that, on its surface, you have arguments that the change violates the ex post facto clause.
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