Manuel Nevarez v. G. Lewi

Filing

FILED PER CURIAM OPINION (BARRY G. SILVERMAN, WILLIAM A. FLETCHER and JAY S. BYBEE) AFFIRMED. FILED AND ENTERED JUDGMENT. [9072061]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MANUEL FRANCISCO NEVAREZ,
Petitioner-Appellant,

No. 12-17060

v.

D.C. No.
3:12-cv-01912-SI

RON E. BARNES, Warden,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted
April 8, 2014—San Francisco, California
Filed April 25, 2014
Before: Barry G. Silverman, William A. Fletcher,
and Jay S. Bybee, Circuit Judges.
Per Curiam Opinion

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NEVAREZ V. BARNES
SUMMARY*

Habeas Corpus
The panel affirmed the denial of a 28 U.S.C. § 2254
habeas corpus petition raising an ex post facto challenge to
the application of amended Cal. Penal Code § 2933.6 to deny
conduct credits to validated gang affiliates housed in the
prison’s security housing unit.
When he was validated as a prison gang associate and
assessed an indeterminate term in the security housing unit
and before § 2933.6 was amended, petitioner was eligible for
conduct credits. The panel explained that it was petitioner’s
intervening conduct—continued gang affiliation—that
triggered the reduction in time credits, and concluded that
state court’s denial of relief was not an objectively
unreasonable application of clearly established federal law.

COUNSEL
Vicki Marolt Buchanan, Sonoma, California, for PetitionerAppellant.
Jennifer Gwen Ross, Deputy Attorney General, California
Department of Justice, San Francisco, California, for
Respondent-Appellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
PER CURIAM:
Manuel Francisco Nevarez appeals from the district
court’s denial of his habeas petition challenging the
application of amended California Penal Code Section 2933.6
against him as a violation of his right against ex post facto
application of the law. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2000, Nevarez received a twelve-year prison sentence
after being convicted of second-degree robbery. In 2008,
Nevarez was convicted of bringing marijuana into prison, and
he received an additional three-year sentence. On December
12, 2008, Nevarez was validated as an associate of the
Mexican Mafia prison gang and was assessed an
indeterminate term in the security housing unit at Pelican Bay
State Prison. At the time, California law stated that Nevarez
was eligible to earn one day of good conduct credit for every
two days served. On January 25, 2010, however, California
Penal Code Section 2933.6 was amended to deny conduct
credits for inmates who are housed in a security housing unit
and are validated gang affiliates:
(a) Notwithstanding any other law, a person
who is placed in a Security Housing Unit,
Psychiatric Services Unit, Behavioral
Management Unit, or an Administrative
Segregation Unit for misconduct described in
subdivision (b) or upon validation as a prison
gang member or associate is ineligible to earn

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[sentence reduction conduct] credits pursuant
to Section 2933 or 2933.05 during the time he
or she is in the Security Housing Unit,
Psychiatric Services Unit, Behavioral
Management Unit, or the Administrative
Segregation Unit for that misconduct.

Cal. Penal Code § 2933.6(a). Thus, since January 25, 2010,
Nevarez has been ineligible to earn conduct credits. None of
Nevarez’s conduct credits earned before January 25, 2010,
however, were forfeited as result of the amendment.
Nevarez filed an administrative claim on the theory that
Section 2933.6 violated his constitutional rights under the
Constitution’s Ex Post Facto Clause. See U.S. Const. art. I,
§ 10, cl. 1. After his administrative claims were exhausted,
Nevarez petitioned the Del Norte County Superior Court for
a writ of habeas corpus. The superior court denied Nevarez’s
petition based on In re Sampson, 197 Cal. App. 4th 1234
(Cal. Ct. App. 2011), which held that Section 2933.6 did not
violate the Ex Post Facto Clause. The Sampson court held
that Section 2933.6 did not punish “the criminal conduct for
which petitioner was imprisoned,” nor did it punish any
“misconduct that occurred prior to January 25, 2010.” Id. at
1241. Instead, Section 2933.6(a) punished only ongoing
prison misconduct:
[I]f the credit-eliminating amendment to
section 2933.6 constitutes punishment, ex post
facto principles do not bar its application to
petitioner here, because it does not impose
punishment for the offense that gave rise to
petitioner’s prison sentence. Rather, if it
punishes, it punishes for conduct that occurred

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after the commission of, or the conviction for,
the punishable offense. In other words,
petitioner’s ineligibility for conduct credit
accrual is not punishment for the offense of
which he was convicted. Nor is it punishment
for gang-related conduct that occurred prior to
January 25, 2010, since petitioner was not
stripped of conduct credits he had already
accrued. It is punishment for gang-related
conduct that continued after January 25, 2010.
Id. at 1242. Nevarez appealed the superior court’s decision,
but both a California appellate court and the California
Supreme Court summarily denied his appeals.
Nevarez then filed a Section 2254 Petition for a Writ of
Habeas Corpus in the Northern District of California. The
district court, applying the Antiterrorism and Effective Death
Penalty Act, 28 U.S.C. § 2254, denied the habeas petition, but
granted Nevarez’s request for a certificate of appealability.
This appeal followed.
ANALYSIS
We review the district court’s decision to deny Nevarez’s
habeas petition de novo. Dyer v. Hornbeck, 706 F.3d 1134,
1137 (9th Cir. 2013).
AEDPA provides that for relief to be granted by a federal
court on a state habeas petition, the petitioner must show that
the state court’s denial of relief was either “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States ” or “based on an unreasonable determination

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of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). A state court
decision is “contrary to” clearly established federal law if it
applies a rule that contradicts Supreme Court case law or if it
reaches a conclusion different from the Supreme Court’s in
a case that involves facts that are materially indistinguishable.
See Williams v. Taylor, 529 U.S. 362, 405 (2000). AEDPA
thus imposes a “highly deferential” standard of review, as the
Supreme Court has emphasized:
We have explained that an unreasonable
application of federal law is different from an
incorrect application of federal law. Indeed,
a federal habeas court may not issue the writ
simply because that court concludes in its
independent judgment that the relevant
state-court decision applied clearly
established federal law erroneously or
incorrectly. Rather, that application must be
objectively unreasonable. This distinction
creates a substantially higher threshold for
obtaining relief than de novo review. AEDPA
thus imposes a highly deferential standard for
evaluating state-court rulings, and demands
that state-court decisions be given the benefit
of the doubt.
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation
marks and citations omitted). Thus, where no decision of the
Supreme Court has squarely decided an issue, a state court’s
adjudication of that issue cannot result in a decision that was
contrary to, or an unreasonable application of, clearly
established Supreme Court precedent. See Harrington v.
Richter, __ U.S. __, 131 S. Ct. 770, 786 (2011).

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Nevarez argues that two Supreme Court decisions
involving prison time credits – Weaver v. Graham, 450 U.S.
24 (1981) and Lynce v. Mathis, 519 U.S. 433 (1997) – clearly
establish that amended Section 2933.6 violates his ex post
facto rights. Weaver and Lynce make it clear that a postconviction amendment that withdraws or diminishes a
prisoner’s time credits for prior conduct violates the Ex Post
Facto Clause because such an amendment effectively
“increase[s] the punishment for [the prisoner’s] criminal
acts,” Collins v. Youngblood, 497 U.S. 37, 43 (1990).
But there’s a difference between the facts of this case and
the facts in Weaver and Lynce. In both of those Supreme
Court decisions, the diminution in the prisoners’ time credits
was not triggered by any additional conduct by the prisoners,
and thus the diminution punished nothing other than the
prisoners’ original conviction offense. In this case, however,
it is only intervening conduct – continued gang affiliation –
that triggers the reduction in time credits. That’s the critical
difference the Sampson court focused on: Section 2933.6
does not punish “the criminal conduct for which petitioner
was imprisoned,” but instead “punishes for conduct that
occurred after the commission of, or the conviction for, the
punishable offense.” In re Sampson, 197 Cal. App. 4th at
1241–42.
Whether we agree with that analysis is beside the point
because the only question under AEDPA is whether that
analysis is an objectively unreasonable application of clearly
established federal law. It is not. That amended Section
2933.6 applies only prospectively, only to intervening
conduct, and does not result in the forfeiture of credits
already earned makes it factually distinguishable from the ex
post facto holdings in Weaver and Lynce. See also Kansas v.

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Hendricks, 521 U.S. 346, 370–71 (1997) (law that
“permit[ted] involuntary confinement based upon a
determination that the person currently both suffers from a
‘mental abnormality’ or ‘personality disorder’ and is likely to
pose a future danger to the public” did “not have retroactive
effect” and thus did “not raise ex post facto concerns”); Abed
v. Armstrong, 209 F.3d 63, 66 (2d Cir. 2000) (distinguishing
Lynce and Weaver to find that the ex post facto rights of
petitioner were not implicated by a directive that
prospectively disallowed good-time credits for inmates after
they were classified as prison gang members).
Nor does Greenfield v. Scafati, 277 F. Supp. 644 (D.
Mass. 1967), summarily aff’d, 390 U.S. 713 (1968), support
Nevarez’s position. Greenfield held that a Massachusetts
statute that imposed sanctions for violations of parole and that
was applied to a prisoner who was originally sentenced
before its enactment, but who violated his parole after its
enactment, violated the prisoner’s ex post facto rights. Thus,
the holding in Greenfield could be read to stand for the idea
that an ex post facto violation can exist even in instances
where a prisoner is only punished prospectively for postenactment conduct.
But Greenfield was only a district court ruling that was
then summarily affirmed by the Supreme Court, and the
Court has “often recognized that the precedential effect of a
summary affirmance extends no further than the precise
issues presented and necessarily decided by those actions. A
summary disposition affirms only the judgment of the court
below, and no more may be read into [the Court’s] action
than was essential to sustain that judgment.” Anderson v.
Celebrezze, 460 U.S. 780, 784 n.5 (1983) (internal quotation
marks omitted); see also Ill. State Bd. of Elections v. Socialist

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Workers Party, 440 U.S. 173, 182–83 (1979) (in the context
of summary dispositions, “[q]uestions which ‘merely lurk in
the record’ are not resolved, and no resolution of them may
be inferred” (citation omitted)).
The district court in Greenfield focused its analysis on the
right to parole and the consequences of denying or burdening
that opportunity. See 277 F. Supp. at 646. It did not address
a prisoner’s ex post facto rights outside of that context, nor
did it address the situation where the state has increased
punishment for ongoing prison misconduct. Thus, given the
limited precedential value of summary dispositions and the
differences between Greenfield and this case, it does not
qualify as “clearly established federal law” for purposes of
AEDPA.
AFFIRMED.