NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Calvin Fred VAN OURKERK, Petitioner-Appellant, v. C.E. FLOYD, Respondent-Appellee.

Before: SNEED, TROTT and THOMAS, Circuit Judges.

MEMORANDUM**

Calvin Fred Van Ourkerk, a federal prisoner sentenced under pre-Sentencing Guidelines law, appeals pro se the denial of his 28 U.S.C. § 2241 habeas corpus petition challenging the decision of the National Appeals Board of the United States Parole Commission which ordered Van Ourkerk to continue serving his sentence without parole. Van Ourkerk contends the Ex Post Facto clause required the Parole Commission to apply the original version of 18 U.S.C. § 3551(b)(3) and set a parole date within his parole guidelines by November 1, 1992.

This contention is precluded by our holding that § 3551(b)(3) took effect on November 1, 1987, after Van Ourkerk committed his crime. See United States v. Paskow, 11 F.3d 873, 877 (9th Cir.1994) (ex post facto violation requires retrospective application of adverse change in law); Evenstad v. United States, 978 F.2d 1154, 1158 (9th Cir.1992) (effective date of § 3551(b)(3)).

AFFIRMED.

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

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

December 5, 1996

United States Court of Appeals for the Ninth Circuit

103 F.3d 143

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