Unpublished Disposition, 872 F.2d 427 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 427 (9th Cir. 1989)

Edward DIAMONTINEY, Petitioner-Appellant,v.SUPERIOR COURT, COUNTY OF SACRAMENTO, Respondent-Appellee.

No. 88-1919.

United States Court of Appeals, Ninth Circuit.

Submitted March 9, 1989.* Decided March 30, 1989.

Before PREGERSON, O'SCANNLAIN, and TROTT, Circuit Judges.


Edward Diamontiney, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Diamontiney contends the district court erred in finding that the state trial court's ruling on the admissibility of his prior convictions as impeachment evidence did not amount to an ex post facto violation. We affirm the district court.

It appears that Diamontiney has presented his ex post facto claim to the California Supreme Court and has thus exhausted his state remedies. See Picard v. Connor, 404 U.S. 270, 276 (1971); Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986). "No ex post facto violation occurs if a change does not alter 'substantial personal rights,' but merely changes "modes of procedure which do not affect matters of substance.' " Miller v. Florida, 107 S. Ct. 2446, 2451 (1987) (citations omitted). The trial court's erroneous application of California Constitution Article I, section 28(f) to allow the admission of Diamontiney's prior convictions as impeachment evidence did not alter or affect the length, severity, or other conditions of Diamontiney's punishment. It merely changed a matter of evidentiary procedure. See Thompson v. Missouri, 171 U.S. 380, 386-87 (1898) (change in evidentiary rules making certain incriminating evidence admissible at defendant's retrial does not violate ex post facto clause).



The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3