Unpublished Disposition, 886 F.2d 334 (9th Cir. 1989)

MEMORANDUM^** 

Kenneth Wayne Sego, an Arizona state prisoner, appeals pro se the district court's grant of summary judgment in favor of the defendant state officials. The district court rejected Sego's argument that the Arizona Department of Corrections violated the ex post facto clause and subjected him to double jeopardy when it recalculated his good time credits and thereby increased his sentence. We agree with the district court and we affirm.

Ex Post Facto

Following a state court ruling and an Arizona Attorney General's opinion invalidating the state's policy of allowing good time credit for presentence incarceration, the Arizona Department of Corrections recalculated all applicable prisoners' sentences, including Sego's. We agree that administrative changes in a prisoner's sentence may amount to an ex post facto increase in punishment. See Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir. 1972) (new administrative interpretations which subject prisoners to increased punishment are prohibited by the ex post facto clause of the Constitution), vacated as moot, 409 U.S. 1100 (1973). Where, however, there is a court decision authoritatively construing state law that requires a prisoner to serve a longer sentence than initially stated by the administrative agency, and this judicial decision was foreseeable, an ex post facto challenge fails. See Holguin v. Raines, 695 F.2d 372, 374 (9th Cir. 1982), cert. denied, 464 U.S. 896 (1983). This is exactly the case here and therefore there is no ex post facto clause violation.

Double Jeopardy

Sego contended below that Arizona's recomputation of his sentence constitutes multiple punishment in violation of the double jeopardy clause. We disagree. There is no double jeopardy violation here because the Arizona legislature originally intended that good time credit would not be awarded for presentence incarceration. Thus Sego was sentenced only to that amount of time prescribed by the legislature. See Ohio v. Johnson, 467 U.S. 493, 499 (1984) (whether punishments are multiple in violation of double jeopardy is a matter of legislative intent).

Sanctions on Appeal

The state officials contend they are entitled to nominal attorneys' fees because Sego's brief on appeal is confusing, baffling, and nonsense. We agree with the characterizations but decline to award sanctions. Sego's arguments in the district court were not meritless and even though his pro se appellate brief was not an aid to the appellate process, the issues ultimately presented by his action deserved review. Cf. International Union of Bricklayers & Allied Craftsmen Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1406 (9th Cir. 1985) (court may impose sanctions for frivolous appeal even though arguments made in the district court had merit).

AFFIRMED.