MITCHELL v. BECERRA (2018)

MEMORANDUM ***

Roderick L. Mitchell appeals pro se from the district court’s judgment dismissing his action alleging a violation of the ex post facto clause of the United States Constitution. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.

The district court properly dismissed Mitchell’s action because Mitchell failed to allege facts sufficient to show that California Penal Code § 290.46 has a punitive purpose or effect. See U.S. Const. Art. I, § 9, cl. 3; Smith v. Doe, 538 U.S. 84, 104-05, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (setting forth factors for determining whether a statute is punitive for purposes of the ex post facto clause).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Becerra’s request for judicial notice, set forth in his answering brief, is granted.

AFFIRMED.