Roderick Mitchell v. Kamala Harris

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODERICK L. MITCHELL, No. 17-15168 Plaintiff-Appellant, D.C. No. 2:14-cv-02993-MCE-AC

v.

MEMORANDUM**

XAVIER BECERRA*, Attorney General; JAMES C. SANCHEZ,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted March 13, 2018*** Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Roderick L. Mitchell appeals pro se from the district court’s judgment dismissing his action alleging a violation of the ex post facto clause of the United

*

Xavier Becerra has been substituted for his predecessor, Kamala D.

Harris, as Attorney General under Fed. R. App. P. 43(c)(2).

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

***

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

States Constitution. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.

The district court properly dismissed Mitchell’s action because Mitchell failed to allege facts sufficient to show that California Penal Code § 290.46 has a punitive purpose or effect. See U.S. CONST. ART. I, § 9, cl. 3; Smith v. Doe, 538 U.S. 84, 104-05 (2003) (setting forth factors for determining whether a statute is punitive for purposes of the ex post facto clause).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Becerra’s request for judicial notice, set forth in his answering brief, is granted.

AFFIRMED.

2 17-15168