David Ely v. Warden White

875 F.2d 863 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. David ELY, Plaintiff-Appellant, v. Warden WHITE, Defendant-Appellee. No. 88-6269. United States Court of Appeals, Sixth Circuit. May 5, 1989. Before WELLFORD and RALPH B. GUY, Jr., Circuit Judges, and BAILEY BROWN, Senior Circuit Judge. ORDER [1] This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). [2] David Ely, a pro se federal prisoner, appeals from the denial of his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2241. Mr. Ely is serving a thirty year sentence for drug related offenses. He contends that he has already served beyond the time which would apply to currently sentenced offenders under the Sentencing Reform Act of 1984, and that therefore equal protection dictates his immediate release. [3] Upon consideration, we conclude that the Sentencing Reform Act clearly does not provide for resentencing of defendants such as Mr. Ely whose criminal conduct occurred before the Act's effective date. See United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1987). Moreover, this statutory construction survives equal protection analysis, as to hold otherwise would result in the ex post facto application of harsher penalties in some cases, and the government has a legitimate interest in avoiding resentencing of all defendants originally sentenced under prior law. Cf. Dillinger v. Schweiker, 762 F.2d 506, 508 (6th Cir.1985). [4] Accordingly, the district court's judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.