                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 07 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GERALD J. WILSON,                                No.   12-55505

              Petitioner-Appellant,              D.C. No.
                                                 2:11-cv-04735-ABC-AN
 v.

STUART SHERMAN,                                  MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Audrey B. Collins, District Judge, Presiding

                          Submitted September 2, 2016**
                              Pasadena, California

Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.

      Petitioner Gerald Wilson appeals from the district court’s dismissal of his

pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), and we affirm.


         *
             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).
      In his habeas petition, Wilson claims that the California Department of

Corrections and Rehabilitation (CDCR) violated the Ex Post Facto Clause of the

United States Constitution, U.S. Const. art. I, § 9, cl. 3, when it ceased granting

Wilson prison credits pursuant to the decisions in People v Stofle, 45 Cal. App. 4th

417 (Cal. Ct. App. 1996), and In re Cervera, 24 Cal. 4th 1073 (2001). Wilson

could have discovered the change in CDCR’s calculation of prison credits, the

factual predicate of his claim, through the exercise of due diligence earlier than one

year before he filed his state habeas petition on December 7, 2009. During the

period from October 13, 1995, through at least December 25, 2009, California law

required the CDCR to calculate an inmate’s prison credits and forward the new

legal status summary sheet to the inmate. Cal. Code. Regs. tit. 15, § 3043(c)(2)(B)

(current Oct. 13, 1995); id. § 3043(c)(5)(B) (current Dec. 25, 2009). In the absence

of evidence to the contrary, we presume the CDCR did so. See Kohli v. Gonzales,

473 F.3d 1061, 1068 (9th Cir. 2007) (administrative agencies are entitled to a

presumption that they follow the relevant regulations absent evidence to the

contrary).

      Here, the record includes a summary sheet of Wilson’s credit calculation

prepared by CDCR staff, dated December 5, 2007, demonstrating that Wilson was

no longer earning credits after Stofle. Although Wilson claims that he did not


                                           2
receive this particular summary sheet, he does not claim that he could not have

obtained one or more of the summary sheets calculated by the CDCR in the 13

years between the decision in Stofle and when he requested and was given his

credit information in 2009. See Cal. Code Regs. tit. 15 § 3370(c) (2016) (“Inmates

. . . may review their own case records file . . . .”). Nor does Wilson allege that he

requested information regarding his prison credits at any time during this period.

See Quezada v. Scribner, 611 F.3d 1165, 1168 (9th Cir. 2010) (reasonable

diligence demonstrated where petitioner requested information but was not

answered). Accordingly, Wilson did not exercise reasonable due diligence to

discover the factual predicate of his claim.

      “The statute of limitations begins to run under § 2244(d)(1)(D) when the

factual predicate of a claim ‘could have been discovered through the exercise of

due diligence,’ not when it actually was discovered,” Ford v. Gonzalez, 683 F.3d

1230, 1235 (9th Cir. 2012) (quoting 28 U.S.C. § 2244(d)(1)(D)). We conclude that

the factual predicate for Wilson’s ex post facto claim could have been discovered

with the exercise of due diligence earlier than one year before he filed his state

habeas petition on December 7, 2009. Therefore, Wilson is also not entitled to

statutory tolling under 28 U.S.C. § 2244(d)(2) for the period in which his

December 7, 2009, state petition was under consideration and before he filed his


                                           3
federal habeas petition on December 21, 2010. See Ferguson v. Palmateer, 321

F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation

of the limitations period that has ended before the state petition was filed.”). The

district court therefore did not err in concluding that Wilson’s petition was barred

by the statute of limitations.

       Further, the district court did not abuse its discretion in declining to hold an

evidentiary hearing on Wilson’s claim, because, even if Wilson’s petition had been

timely and his factual allegations true, Wilson is not entitled to relief. See Schriro

v. Landrigan, 550 U.S. 465, 474 (2007); West v. Ryan, 608 F.3d 477, 485 (9th Cir.

2010); Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001) (“A habeas

petitioner is entitled to an evidentiary hearing if . . . the allegations in his petition

would, if proved, entitle him to relief.”). The CDCR altered its calculation of

prison credits to comply with the state courts’ interpretation of the relevant state

statute, and the Supreme Court held that it “has long been settled by the

constitutional text and our own decisions: that the Ex Post Facto Clause does not

apply to judicial decisionmaking.” Rogers v. Tennessee, 532 U.S. 451, 462 (2001);

see also id. at 456.

       AFFIRMED.




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