Antonio Hinojosa v. Connie Gipson

FILED
FOR PUBLICATION SEP 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO A. HINOJOSA, No. 13-56012
Petitioner - Appellant, D.C. No. 8:12-cv-00965-GAF-
MRW
v.
DAVE DAVEY, Acting Warden, OPINION
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted June 2, 2015
Pasadena, California
Before: FERNANDEZ, FISHER, and BEA, Circuit Judges.
Opinion by Judge BEA, Circuit Judge:
Prison gangs threaten the safety and security of prisons and prisoners.
California has sought to combat these threats—and punish prison-gang
affiliation—by segregating prison-gang members and associates from the general
prison population. To that end, California houses prison-gang members and
associates in Security Housing Units (SHUs), maximum-security facilities in which
prisoners are kept in solitary confinement for over 22 hours a day.
California also encourages good behavior among its prisoners with good-
conduct credits that reduce prisoners’ sentences. Most prisoners earn credits on a
one-to-one basis—for one day of good conduct, they earn one day of credit. So, a
prisoner who behaves well can potentially cut his sentence in half. But prisoners
can also lose credits, or their credit-earning status can change, based on
misconduct. Until 2010, prison-gang members and associates housed in SHUs
earned credits at a reduced three-to-one rate. But California amended its penal code
in 2010 to modify the credit-earning status of prison-gang members and associates
in segregated housing. Those prisoners can no longer earn any credits, regardless
their conduct. The amendment thus causes prison-gang members and associates
housed in SHUs to serve a longer portion of their prison sentences than they would
have under the old regime, effectively increasing their sentences. The issue here is
whether the 2010 amendment violates the Ex Post Facto Clause of the United
States Constitution when applied to a prisoner whose underlying criminal offense
was committed before that amendment’s enactment. We conclude it does.
I
In 2003, petitioner–appellant Antonio A. Hinojosa pleaded guilty in
California superior court to first-degree robbery (to which he admitted a firearm
2
enhancement) and participation in criminal-street-gang activity. He was sentenced
to 16 years of imprisonment.
In 2009, Hinojosa was “validated” as a “prison-gang associate” and
transferred to the SHU at Corcoran.1 Validation is the process by which inmates
are classified as prison-gang members or associates.2 Once validated, a prison-gang
member or associate “is deemed to be a severe threat to the safety of others or the
security of the institution and will be placed in a SHU for an indeterminate term.”
Cal. Code Regs. tit. 15, § 3341.5(c)(2)(A)(2) (2009). At the time Hinojosa was
validated, there were two ways validated prison-gang members and associates
1
After this appeal was filed, the California Penal Code was amended to
replace the term “prison gang” with “Security Threat Group,” bureaucratese that is
otherwise known by the abbreviation “STG.” As such, Hinojosa is no longer a
“prison-gang associate” but an “STG associate.” For the purposes of this opinion,
however, we use the old terminology, which is more accurate here, as STGs may
include groups other than prison gangs. The Code also distinguishes between
prison-gang members and associates; that distinction is irrelevant to our analysis.
2
For an inmate to be validated as a prison-gang associate, the California
Department of Corrections and Rehabilitations must recognize at least three
reliable, documented bases (“independent source criteria items”) for concluding
that the inmate’s background, person, or belongings indicate his active association
with other validated prison-gang members or associates. See Cal. Code Regs., tit.
15, § 3378.2(b). At least one of those bases must constitute a direct link to a
current or former validated prison-gang member or associate. Id. The evidence
presented against Hinojosa consisted of an envelope upon which was written the
name of another validated prison-gang associate, a birthday card with gang
symbols in it, photographs of Hinojosa’s gang-related tattoos, and a report from an
institutional gang investigator. Hinojosa does not challenge his validation as a
prison-gang associate.
3
could get out of the SHU. The first is going “inactive.” An inactive inmate is one
who has not been involved in prison-gang activity for a minimum of six years. Id.
§ 3378(e) (2009). Once deemed inactive, the prison’s Departmental Review Board
may authorize an inmate’s transfer out of the SHU, but that decision is
discretionary. See id. § 3341.5(c)(5) (2009). The Board “is authorized to retain an
inactive gang member or associate in a SHU based on the inmate’s past or present
level of influence in the gang, history of misconduct, history of criminal activity,
or other factors indicating that the inmate poses a threat to other inmates or
institutional security.” Id. The second way to get out of the SHU is to
“debrief”—what some prisoners might describe as “snitch.”3 The process has two
steps: an interview phase and an observation phase. Id. § 3378.1(a) (2009). In the
interview phase, the inmate must provide staff with “information about the gang’s
structure, activities and affiliates,” as well as “a written autobiography of [his]
gang involvement, which is then verified by staff for completeness and accuracy.”
Id. § 3378.1(b) (2009). In the observation phase, inmates are observed for up to
3
In his petition in district court, Hinojosa asserted that inmates who choose
to debrief put themselves and their families in jeopardy of retaliation by other gang
members. That may be, but it does not affect our analysis.
4
twelve months in segregated housing with other inmates undergoing the debriefing
process. Id. § 3378.1(c) (2009).4
Under the version of California Penal Code § 2933.6 in effect at the time of
Hinojosa’s 2003 conviction and 2009 validation, he was eligible to earn good-
conduct credits while housed in the SHU, albeit at a rate lower than prisoners
housed in the general population. See Cal. Penal Code § 2933.6(a), (b) (2009); In
re Efstathiou, 200 Cal. App. 4th 725, 728 (2011). But effective January 25, 2010,
§ 2933.6 was amended to eliminate accrual of credits for inmates, such as
Hinojosa, who had been transferred to the SHU upon validation as a prison-gang
member or associate. See Cal. Penal Code § 2933.6(a), (b) (2010). The amendment
did not revoke any credits Hinojosa earned before the effective date of the
amendment; it prevented him from accruing any further custody credits while
housed in the SHU. As a result of this change in credit-earning status, Hinojosa’s
4
After briefing of this appeal concluded, California amended its regulations
to introduce a third means by which validated prison-gang members and associates
can get out of the SHU: the Step Down Program. See Cal. Code Regs. tit 15,
§ 3378.3(a) (2015). The Step Down Program is “an incentive based multi-step
process for the management of [prison-gang] affiliates . . . designed to monitor
affiliates and assist with transition for return to [the] general population.” Id. Like
debriefing, completing the Step Down Program is a lengthy process that does not
entail immediate restoration of a prisoner’s credit-earning status. See id. §§ 3000,
3341.5(c)(5), 3378.3 (2015). The addition of the Step Down Program to the
regulations does not change our analysis.
5
minimum release date was extended one year, from September 27, 2015, to
September 27, 2016.
After exhausting his administrative remedies, Hinojosa filed a petition for
writ of habeas corpus in the Superior Court of California challenging the
application of amended § 2933.6 to change his credit-earning status. As recounted
by the superior court, Hinojosa presented two claims:
1. The California Department of Corrections and Rehabilitation’s
retroactive application of recently amended Penal Code § 2933.6 to
restrict and/or deny petitioner’s eligibility for prison conduct credit
violates the terms of petitioner’s plea agreement and constitutional right
to due process.
2. The California Department of Corrections and Rehabilitation has
unlawfully validated petitioner as a prison gang associate resulting in the
retroactive application of recently amended Penal Code § 2933.6 to
restrict and/or deny petitioner’s eligibility for prison conduct credit in
violation of petitioner’s constitutional right to due process and the
constitutional proscription against ex post facto legislation.
The superior court addressed these two claims separately, providing
“separate and independent grounds” for denying each. As to the first claim, the
superior court held that Hinojosa’s plea agreement did not “contain an express
promise or guarantee” regarding his credit-earning status and thus that the
application of amended § 2933.6 to Hinojosa did not violate the terms of his plea
agreement or violate due process. As to the ex post facto claim, the superior court
6
denied it “on grounds [Hinojosa] ha[d] not sought review of his claim of error in
the proper judicial venue.” The superior court denied his petition.
Hinojosa petitioned the California Court of Appeal and then the Supreme
Court of California for a writ of habeas corpus, raising the same claims. Both
courts denied his petitions without opinions.
Hinojosa then filed pro se a petition for writ of habeas corpus in the United
States District Court for the Central District of California. In his petition, he
claimed (1) application of amended § 2933.6 to change his credit earning status
violated the Ex Post Facto Clause, and (2) ineffective assistance of counsel for
failing to inform him of the chance he would lose his credit-earning status. In his
report and recommendation, Magistrate Judge Michael R. Wilner analyzed those
claims under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2254(d), and recommended denial of Hinojosa’s petition. As to the ex
post facto claim, Magistrate Judge Wilner concluded the California Superior Court
had not unreasonably applied federal law in denying Hinojosa’s claim
because the change in California law neither caused a prisoner to lose
earned credits nor punished a prisoner for past conduct. Rather, the
statute serves to prevent an inmate from earning additional credits based
on his “continued status as an active gang member or associate”: an
inmate may rectify this by dropping out of the gang and cooperating with
prison officials.
Magistrate Judge Wilner rejected Hinojosa’s ineffective-assistance-of-counsel
claim because “no reasonable criminal defense attorney could be faulted for failing
7
to anticipate and advise a client about a future change in the law governing prison
credits.”
District Judge Gary A. Feess adopted Magistrate Judge Wilner’s report and
recommendation in full, denied Hinojosa’s petition, and dismissed the action with
prejudice. Judge Feess denied Hinojosa’s request for a certificate of appealability
as to either of his claims. Hinojosa timely petitioned us for a certificate of
appealability, which we granted only as to “whether the 2010 amendment to
California Penal Code § 2933.6, which deprives a prisoner of a future opportunity
to earn an earlier release, violates the Ex Post Facto Clause.” This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c).
II
We review de novo the district court’s denial of a petition for a writ of
habeas corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). And we
review de novo the district court’s determination that AEDPA applies to a
petitioner’s claim. See id. at 965.
III
Hinojosa is not the first California prisoner to challenge amended § 2933.6
under the Ex Post Facto Clause. In Nevarez v. Barnes, 749 F.3d 1124 (9th Cir.),
cert. denied sub nom. Nevarez v. Ducart, __ U.S. __, 135 S. Ct. 295 (2014), we
considered this same question on similar facts. There, we held that AEDPA barred
8
us from granting Nevarez relief because the California courts’ denial of his ex post
facto claim was not “an objectively unreasonable application of clearly established
federal law” as determined by the Supreme Court of the United States. 749 F.3d at
1128; see 28 U.S.C. § 2254(d)(1). If AEDPA applies here, we are bound by our
decision in Nevarez and must affirm the district court’s denial of Hinojosa’s
petition. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). If not,
we must consider the merits of his petition.
AEDPA bars us from granting a writ of habeas corpus “with respect to any
claim that was adjudicated on the merits in State court proceedings” unless the
state court’s decision (1) “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States;” or (2) “was based on an unreasonable determination of the facts.”
28 U.S.C. § 2254(d). Hinojosa contends that no state court decided his ex post
facto claim “on the merits” and thus that AEDPA does not apply. We agree.
The superior court did not decide Hinojosa’s ex post facto claim on the
merits. It denied the claim because Hinojosa filed it “in the [im]proper judicial
venue.” The state conceded as much at oral argument. But the state cites
Harrington v. Richter, 562 U.S. 86 (2011), and Johnson v. Williams, 568 U.S. ___,
133 S. Ct. 1088 (2013), for the proposition that we must presume the California
Supreme Court decided Hinojosa’s ex post facto claim on the merits when it
9
summarily denied his petition. That argument fails to comprehend the relationship
between Richter, whereby we must presume state courts decide federal claims on
the merits, see 562 U.S. at 99–100, and Ylst v. Nunnemaker, 501 U.S. 797 (1991),
which directs us to consider the last reasoned decision of the state courts, see id. at
806. Where the last reasoned state-court decision rejects a federal claim solely on
procedural grounds, any presumption that a subsequent summary denial decided
the claim on the merits is rebutted. See James v. Ryan, 733 F.3d 911, 915–16 (9th
Cir. 2013) cert. denied, 572 U.S. ___, 134 S. Ct. 2697 (2014); see also Williams,
133 S. Ct. at 1094 n.1 (“Consistent with our decision in Ylst v. Nunnemaker, 501
U.S. 797, 806 (1991), the Ninth Circuit ‘look[ed] through’ the California Supreme
Court’s summary denial of Williams’ petition for review and examined the
California Court of Appeal’s opinion, the last reasoned state-court decision . . . .”).
Here, the last reasoned decision is that of the superior court, which denied
Hinojosa’s ex post facto claim solely on the ground of improper venue. That
determination is not a determination “on the merits.” 28 U.S.C. § 2254(d). So, we
are not bound by AEDPA.
Nonetheless, if a state court dismisses a federal claim on an independent
state procedural ground that is firmly established and regularly followed, we
normally will not consider the claim. Beard v. Kindler, 558 U.S. 53, 55, 60–61
(2009). But the state has not raised a state procedural ground as a defense at any
10
stage of Hinojosa’s federal proceedings. The defense is thus waived. See Trest v.
Cain, 522 U.S. 87, 89 (1997) (“[P]rocedural default is normally a defense that the
State is obligated to raise and preserve if it is not to lose the right to assert the
defense thereafter.” (internal quotation marks and brackets omitted)). And although
we may raise procedural default sua sponte, Windham v. Merkle, 163 F.3d 1092,
1100–01 (9th Cir. 1998), we decline to do so here. Hinojosa raises a serious
question about whether the superior court’s dismissal of his claim for improper
venue is, in fact, a firmly established and regularly followed rule. See In re Oluwa,
255 Cal. Rptr. 35, 37 (Cal. Ct. App. 1989) (holding habeas petition challenging
denial of custody credits “is not related to the conditions of . . . confinement” and
was properly brought in the district of conviction); Griggs v. Superior Court, 16
Cal. 3d 341, 347 (1976) (holding habeas petition should be transferred, not
dismissed, for improper venue). We will not make the state’s arguments for it, even
only to rebut them. So, we turn to the merits.
IV
“No State shall . . . pass any . . . ex post facto Law . . . .” U.S. Const. art. I,
§ 10, cl. 1. “To fall within the ex post facto prohibition, a law must be
retrospective—that is, ‘it must apply to events occurring before its
enactment’—and it ‘must disadvantage the offender affected by it’ by altering the
definition of criminal conduct or increasing the punishment for the crime.” Lynce
11
v. Mathis, 519 U.S. 433, 441 (1997) (citations omitted). We address these two
prongs in turn.
A
A law is retrospective if it “appl[ies] to events occurring before its
enactment.” Id. at 441 (citation omitted). The Supreme Court has instructed that
the “critical question is whether the law changes the legal consequences of acts
completed before its effective date.” Weaver v. Graham, 450 U.S. 24, 31 (1981).5
But which acts? Hinojosa argues that the relevant conduct is the criminal conduct
for which he is incarcerated. The state contends it is Hinojosa’s continued prison-
gang association.
5
In Weaver, the governing law when petitioner Weaver committed and
pleaded guilty to second degree murder permitted all prisoners to earn conduct
credits at certain rates. Id. at 25–26. That rate was later reduced, and the new rates
were applied to all prisoners regardless of when they committed their underlying
offenses. Id. at 26–27. As a result, all prisoners’ minimum release dates were
effectively increased, including Weaver’s. Id. Weaver petitioned the Supreme
Court of Florida for a writ of habeas corpus, claiming the application of the new
rates to him violated the Ex Post Facto Clause. Id. at 27. The Florida Supreme
Court denied his petition. Id. at 27–28.
The United States Supreme Court reversed. For the purposes of
retrospectivity, the Court compared the date Weaver committed his underlying
criminal offense and the date the new rates went into effect. Id. at 31–32; see also
id. at 32 (“[A] prisoner’s eligibility for reduced imprisonment is a significant factor
entering into both the defendant’s decision to plea bargain and the judge’s
calculation of the sentence to be imposed.”). The Court then concluded that the
new rates disadvantaged Weaver by increasing his prison sentence. Id. at 33. The
Court concluded “the new provision constricts the inmate’s opportunity to earn
early release, and thereby makes more onerous the punishment for crimes
committed before its enactment. This result runs afoul of the prohibition against ex
post facto laws.” Id. at 35–36.
12
Our precedent supports Hinojosa’s position. Altering a prisoner’s ability to
earn credits affects the length of his prison term and therefore affects the measure
of punishment attached to the original crime. See United States v. Paskow, 11 F.3d
873, 879 (9th Cir. 1993) (“[A statute], which forfeited good-time credits upon
revocation of parole, violated the prohibition on ex post facto laws because it
constituted ‘a sanction that extends the time remaining on petitioner’s original
sentence’ rather than a punishment for ‘the second offense.’ ” (quoting Beebe v.
Phelps, 650 F.2d 774, 776 (5th Cir. Unit A July 1981))); see also Weaver, 450 U.S.
at 32 (“[A] prisoner’s eligibility for reduced imprisonment is a significant factor
entering into both the defendant’s decision to plea bargain and the judge’s
calculation of the sentence to be imposed.”). For that reason, we have consistently
looked to the prisoner’s underlying criminal conduct for the purpose of
determining whether a law is retrospective. See Paskow, 11 F.3d at 877 (“These
two factors must be assessed in connection with the date of the defendant’s
offense, not of his conviction or sentencing.”); Watson v. Estelle, 886 F.2d 1093,
1096 (9th Cir. 1989) (“The key ex post facto inquiry is the actual state of the law at
the time the defendant perpetrated the offense.”); see also Weaver, 450 U.S. at 31
(asking whether the statute at issue “applies to prisoners convicted for acts
committed before the provision’s effective date”). That analysis holds true even
where the prisoner commits some intervening misconduct that triggers a change in
13
his credit-earning status. See Paskow, 11 F.3d at 878–79 (citing Greenfield v.
Scafati, 277 F. Supp. 644, 644–45 (D. Mass. 1967), aff’d, 390 U.S. 713 (1968) (per
curiam)).
Greenfield, which we have adopted as controlling authority,6 illustrates this
principle. As we described that case in Paskow:
In Greenfield, a defendant who was incarcerated following
revocation of his parole challenged a statute that prohibited any state
parole violator from receiving good-conduct credits during his first six
months in custody following [parole] revocation. At the time the
defendant committed his underlying crime, all prisoners, including
parole violators, could accumulate good-conduct credits from the
beginning of their incarceration. The new statute . . . was adopted after
the defendant committed his underlying crime, but before he committed
the offense for which his parole was revoked. The three-judge court held
that application of the statute to the defendant violated the ex post facto
clause, because the statute prevented him from being released as early as
he might have been had he been permitted to amass good-conduct credits
under the statute in effect at the time he committed the underlying crime.
Thus, according to the three-judge court and according to the Supreme
Court, the statute operated retrospectively and to his detriment. As the
three-judge court stated, the effect of the statute was to “extend[] his
sentence and increas[e] his punishment” beyond the amount he expected
or had notice of when he committed his underlying crime.
6
Although Greenfield is a decision by a three-judge panel from the District
of Massachusetts, the Supreme Court summarily affirmed the decision, and we
have since adopted it as binding circuit precedent. See Paskow, 11 F.3d at 878. As
such, we are bound by Greenfield here, notwithstanding our holding in Nevarez v.
Barnes that Greenfield “does not qualify as ‘clearly established federal law [as
determined by the Supreme Court of the United States]’ for purposes of AEDPA,”
749 F.3d at 1129. As we held above, AEDPA does not apply to Hinojosa’s ex post
facto claim.
14
Paskow, 11 F.3d at 878–79 (citations omitted). The panel thus concluded:
“Because parole eligibility is part of the sentence for the underlying offense, its
terms and conditions are fixed at the moment the underlying offense is complete.
Therefore, like the length of a term of incarceration, the conditions affecting parole
eligibility cannot be retrospectively altered.” Id. at 879.
The state contends that our decision in Hunter v. Ayers, 336 F.3d 1007 (9th
Cir. 2003), establishes that the relevant conduct here is Hinojosa’s in-prison
misconduct, not his underlying criminal conduct.7 We disagree. The panel in
Hunter assumed without deciding that the relevant conduct for the purposes of
retrospectivity was Hunter’s in-prison misconduct. See 336 F.3d at 1012–13. But
the panel neither raised nor answered that question. Nor did it have to: regardless
whether the relevant date was the date of his in-prison misconduct or the date of
his underlying criminal offense, the regulation violated the Ex Post Facto Clause as
7
In Hunter, petitioner Hunter challenged prison regulations that
retroactively removed his ability to have conduct credits restored after an
infraction. 336 F.3d at 1008–09. Hunter was caught drinking “pruno” (prison
wine), a disciplinary offense. Id. at 1008. He was docked 120 days of good-
conduct credits. Id. Under the regulations in place at the time he committed the
offense, if he served six months following the offense without another disciplinary
offense, half of his forfeited credits would be restored as of right. Id. at 1010. But
after he committed the pruno offense, the regulations were changed to eliminate
restoration of forfeited credits for offenses like Hunter’s. Id. Hunter challenged the
application of the new regulations to him as violating the Ex Post Facto Clause. Id.
at 1011. Hunter petitioned for a writ of habeas corpus under 28 U.S.C. § 2241,
which the district court granted. We affirmed, holding that application of the
amended regulations to eliminate restoration of Hunter’s credits violated the Ex
Post Facto Clause. Id. at 1013.
15
applied to Hunter.8 As such, it is no surprise that Hunter did not distinguish or even
cite any of the cases relevant to that question. To the extent Hunter’s dicta does
identify the in-prison infraction as the relevant conduct, we hold that dicta is not
“well-reasoned”—indeed, the opinion provides no reasoning—and we decline to
follow it. Cf. United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en
banc). Rather, we are bound by the express holdings of Paskow and Weaver. A
prisoner’s eligibility for early release—whether by means of good-conduct credits
or parole—is part of his underlying criminal sentence. See Weaver, 450 U.S. at
31–32; Paskow, 11 F.3d at 879. And where a prisoner’s sentence is effectively
increased by new regulations that alter his credit-earning status, that alteration
“changes the legal consequences” of his underlying criminal conduct. Weaver, 450
U.S. at 31. We therefore hold, in accord with Paskow and Weaver, that the date
8
But that distinction matters here. Although Hinojosa’s and Hunter’s
situations seem similar (Hinojosa was validated and transferred to the SHU, then
the statute was amended; Hunter committed in-prison misconduct, then the
regulation was amended), a key difference distinguishes them. Hunter’s pruno
violation was completed when he drank the pruno. But according to the California
courts, a validated prison-gang associate commits the continuing offense of
associating with a prison gang until he debriefs or becomes inactive. See In re
Sampson, 197 Cal. App. 4th 1234, 1242–43 (2011). So, under California law,
every moment Hinojosa goes without debriefing is a continuation of his
misconduct. And we are bound by the California courts’ interpretation of
California law. See Bradshaw v. Ricky, 546 U.S. 74, 76 (2005) (per curiam).
Accordingly, if the relevant date is the date of the in-prison misconduct, and
Hinojosa was properly found to have committed in-prison misconduct by
affiliating with a prison gang while in prison, § 2933.6 is not retrospective because
until there is evidence that he has disaffiliated from that gang, he is continuing his
in-prison misconduct.
16
relevant to our retrospectivity analysis is the date of the prisoner’s underlying
criminal conduct. See Paskow, 11 F.3d at 878–79; Weaver, 450 U.S. at 30–32.
Applying that principle here, we conclude that amended § 2933.6 is
retrospective as applied to Hinojosa. To borrow Paskow’s language: “At the time
[Hinojosa] committed his underlying crime . . . [validated gang associates housed
in a SHU] could accumulate good-conduct credits from the beginning of their
incarceration.” Paskow, 11 F.3d at 878. Amended § 2933.6 “was adopted after
[Hinojosa] committed his underlying crime” and “prevented [Hinojosa] from being
released as early as he might have been had he been permitted to amass good-
conduct credits under the statute in effect at the time he committed the underlying
crime.” Id. (emphasis omitted). It thus “changes the legal consequences of acts
completed before its effective date.” Weaver, 450 U.S. at 31.9
In its answering brief, the state attempts to distinguish this case from Paskow
and Weaver on the ground that amended § 2933.6
punishes conduct that occurred after the commission of, or the
conviction for, the punishable offense. Hinojosa’s ineligibility for
conduct credit accrual is not punishment for the offense of which he was
convicted. . . . [I]t is punishment for gang-related conduct that occurred
after January 25, 2010.
See also In re Sampson, 197 Cal. App. 4th at 1242 (“[P]etitioner’s ineligibility for
conduct credit accrual is not punishment for the offense of which he was convicted.
9
Although the record does not contain the date of Hinojosa’s underlying
criminal offense, it was certainly before he pleaded guilty to that conduct in 2003.
17
. . . It is punishment for gang-related conduct that continued after January 25,
2010.”).
We do not question whether California can punish prison misconduct,
including prison-gang-related misconduct, through administrative disciplinary
procedures. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 222–23 (2005) (holding
that administrative punishment does not implicate a liberty interest protected by the
Fifth Amendment unless the punishment “imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995))). And we acknowledge that most
administrative punishments—for example, segregated housing, loss of visitation
privileges, restricted (and unpleasant) diets, and reduced exercise or social
time—generally will not implicate the Ex Post Facto Clause. So long as an
administrative punishment is in place before a prisoner commits the punishable
prison misconduct, imposition of such punishment does not change the legal
consequences of any prior acts. But administrative punishments that effectively
extend a prisoner’s sentence—such as revocation of good-conduct credits or
change in credit-earning status—are another story. A prisoner’s term of
imprisonment is punishment for his underlying criminal conduct. So, an
administrative punishment that effectively extends a prisoner’s sentence goes
beyond punishing prison misconduct. It changes the legal consequences of his
18
underlying criminal conduct. If that conduct was committed before the
administrative punishment was enacted, the punishment is retrospective. See
Weaver, 450 U.S. at 32–33.10
The state is correct: Hinojosa’s “gang-related misconduct” occurred after,
and is separate from, his underlying crimes. But in punishing Hinojosa for his in-
prison gang-related misconduct, the state has effectively increased his prison
sentence for his underlying crimes. And it has done so by means of a regulation
that was enacted after Hinojosa committed those crimes. Amended § 2933.6 is thus
retrospective as applied to Hinojosa.
B
Not all retrospective laws are unconstitutional. A retrospective law does not
violate the Ex Post Facto Clause unless it “ ‘disadvantage[s] the offender affected
by it’ by altering the definition of criminal conduct or increasing the punishment
for the crime.” Lynce, 519 U.S. at 441 (citation omitted). But an increase in
punishment need not be an increase in the maximum term of imprisonment. As the
Supreme Court explained in Weaver, a new regulation that changes an inmate’s
ability to earn good-conduct credits increases his punishment if the “new provision
10
Of course, the opposite is also true. If, at the time a prisoner commits his
crime, regulations provide that prisoners may lose credit-earning status as a
consequence of prison misconduct, there is no ex post facto violation.
19
constricts the inmate’s opportunity to earn early release.” Weaver, 450 U.S. at
35–36.
Citing California Department of Corrections v. Morales, 514 U.S. 499
(1995), the state argues that Hinojosa’s risk of an increased sentence is “too
attenuated” to rise to an ex post facto violation. 514 U.S. at 514. We disagree and
distinguish Morales. Under the law in place when petitioner Morales murdered two
people and pleaded guilty to those crimes, parole-eligible inmates were entitled to
yearly parole-board hearings. Id. at 502–03. But while Morales was incarcerated,
the state changed the law to “authorize[] the Board [of Parole Hearings] to defer
subsequent suitability hearings for up to three years . . . if the Board ‘finds that it is
not reasonable to expect that parole would be granted at a hearing during the
following years and states the bases for the finding.’ ” Id. at 503 (citation omitted).
At his first parole hearing in 1989, the board issued a reasoned decision finding it
was not reasonable to expect that parole would be granted in the following years.
Id. at 502–03. It scheduled Morales’s next hearing for 1992. Id. at 503.
Morales filed a petition for habeas corpus in federal district court, which the
district court denied. Id. at 504. We reversed, holding that “any retrospective law
making parole hearings less accessible would effectively increase the [prisoner’s]
sentence and violate the ex post facto clause.” Id. (citation omitted). The Supreme
Court reversed us, drawing a clear distinction between cases like Weaver, where a
20
retrospective law directly results in an increased prison sentence, and cases like
Morales, where the amended statute “creates only the most speculative and
attenuated risk of increasing the measure of punishment attached to the covered
crimes.” Id. at 514.
This case falls under Weaver, not Morales. Whereas the amended statute in
Morales did not change the “substantive formula” for reducing the statutory
sentencing range or the standards for determining parole suitability, id. at 507,
amended § 2933.6 expressly alters the “substantive formula” for awarding good-
conduct credits to prisoners, like Hinojosa, who have been validated as prison-gang
members or associates. That change is not speculative; it has effectively increased
Hinojosa’s prison time by one year.
The state argues alternatively that Hinojosa is not disadvantaged by
amended § 2933.6 because he “could always choose to opt out of a prison gang.” If
he did, the state suggests, he would be out of the SHU and back in the general
population, earning credits at the same rate as everyone else. But it is not so easy.
One does not simply “opt out” of a prison gang. Hinojosa cannot stop being a
prison-gang associate in the eyes of the state unless he waits six years or debriefs.
And aside from the fact that a prisoner who debriefs may claim to face death or
serious injury at the hands of his former compatriots, the entire debriefing process
can take well over a year. See In re Sampson, 197 Cal. App. 4th at 1240. The state
21
has made no representation that Hinojosa would necessarily regain his prior credit-
earning status upon beginning—or even completing—the process. Nor is there any
provision by which Hinojosa could have the credits he is denied while debriefing
reinstated once he completes the process.
But even if Hinojosa could easily opt out of his prison gang, the amended
statute would still disadvantage him. We look at the effect amended § 2933.6 has
on Hinojosa now, all other things being equal. The question is: if Hinojosa does
not change his conduct—if he continues doing what he was doing before § 2933.6
was amended—is his prison time effectively lengthened? The answer is yes.
Amended § 2933.6 thus works to his disadvantage. Were we to hold otherwise, the
state could impose any manner of new requirements upon prisoners, who would
have to comply simply to retain the same credit-earning status they enjoyed before
the new requirements were enacted. See Weaver, 450 U.S. at 34–35 (rejecting the
state’s argument that Weaver could make up for his change in credit-earning status
by performing “special behavior” to earn credits). Such a result would be
irreconcilable with the Ex Post Facto Clause’s protection against “the lack of fair
notice and governmental restraint when the legislature increases punishment
beyond what was prescribed when the crime was consummated.” Id. at 30. For just
as retroactively altering “a prisoner’s eligibility for reduced imprisonment” can
disadvantage a prisoner, id. at 32, so can new conditions placed on that eligibility.
22
* * *
In conclusion, we emphasize what we hold today—and what we do not. We
do not question whether the state can enact a new statute punishing in-prison
misconduct. Nor do we question here whether the state can apply that new statute
to prisoners whose underlying criminal conduct predates the statute’s enactment.
But the state cannot use such a statute retroactively to effect an increase in prison
time. The Ex Post Facto Clause forbids it.
V
Amended § 2933.6 violates the Ex Post Facto Clause as applied to prisoners,
like Hinojosa, who committed their underlying criminal conduct before the
amendment’s enactment. Accordingly, we REVERSE the judgment of the district
court and REMAND with instructions to GRANT the writ of habeas corpus. The
writ will direct the state to release Hinojosa on the date he would have been
released under the version of § 2933.6 that was in place prior to January 25, 2010.
See Weaver, 450 U.S. at 36 n.22.
No petition for rehearing will be entertained and mandate shall issue
forthwith. See Fed. R. App. P. 2.
REVERSED and REMANDED.
23
Counsel
Gia Kim (argued), Deputy Federal Public Defender; Sean K. Kennedy,
Federal Public Defender, Office of the Federal Public Defender, Los Angeles,
California, for Petitioner-Appellant.
Pamela B. Hooley (argued), Deputy Attorney General; Kamala D. Harris,
Attorney General; Julie L. Garland, Senior Assistant Attorney General; Kevin
Vienna, Supervising Deputy Attorney General; David Delgado-Rucci, Deputy
Attorney General, Office of the Attorney General of California, San Diego,
California, for Respondent-Appellee.
24