Gregory v. Lewis

Filing 11

ORDER Denying Petition for Writ of Habeas Corpus. Signed by Judge Edward M. Chen on 6/20/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 6/20/2012)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 JOSEPH BRENT GREGORY, 9 Petitioner, 10 v. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 11 For the Northern District of California United States District Court No. C-12-0967 EMC (pr) G. LEWIS, Warden, 12 Respondent. ___________________________________/ 13 14 I. 15 INTRODUCTION Joseph Brent Gregory filed this pro se action seeking a writ of habeas corpus under 28 16 U.S.C. § 2254. He claims that his constitutional right to be free of ex post facto laws was violated 17 when prison officials applied to him a statute that had been amended as of January 25, 2010 to 18 decrease the time credits he would earn in prison. The matter is now before the Court for 19 consideration of the merits of the habeas petition. For the reasons discussed below, the petition is 20 DENIED. 21 22 II. A. 23 BACKGROUND Gregory’s Criminal And Prison History Gregory is serving a four-year prison sentence on a second degree robbery conviction. He 24 committed the robbery and was convicted in 2008. He was sentenced in February 2009. See Resp. 25 Ex. 1. 26 During an earlier incarceration in the California prison system, Gregory had been validated 27 in 1998 as a member of the Nazi Low Riders prison gang. See Resp. Ex. 2. He was re-validated as 28 an active Nazi Low Rider member in July 2009. See Resp. Ex. 3. In November 2009, Gregory was 1 endorsed for an indeterminate security housing unit (“SHU”) term due to his gang validation. He 2 was transferred to Pelican Bay and placed in the SHU. 3 Gregory participated in the debriefing process in 2010. Eventually, he was deemed a 4 debriefing program failure after, among other things, prison officials discovered he had made threats 5 of physical harm toward other inmates within the program. See Resp. Ex. 7. He was removed from 6 the debriefing program and retained in the SHU on indeterminate status in or about January 2012. 7 He later informed the institutional classification committee that he wanted to be placed back into the 8 debriefing program in March 2012. See Resp. Ex. 8. 9 Under state regulations and rules of the California Department of Corrections & Rehabilitation (“CDCR”), several things must occur for a prisoner to complete the debriefing 11 For the Northern District of California United States District Court 10 process and be deemed a prison gang dropout. The prisoner must complete an integrated yard or 12 transitional housing unit program. Upon completion of the program, a validation package requesting 13 dropout status must be submitted and accepted by CDCR staff. See Cal. Code Regs. tit. 15, 14 § 3378(c)(1) & (5), § 3378.1. 15 16 An inmate also may be eligible to be reviewed for inactive gang status after six years of noninvolvement in gang activity. See id. at § 3378(e). 17 The parties disagree as to whether Gregory is still active in a gang. There is no evidence that 18 he has completed the debriefing process, has been validated as a dropout or has been deemed 19 inactive in the gang. Under the regulations, he still qualifies as a gang member. 20 B. 21 The Change In The Law California Penal Code § 2933.6 was amended effective January 25, 2010 to make certain 22 prison gang members and associates ineligible for some time credits. “Notwithstanding any other 23 law, a person who is placed in a Security Housing Unit, Psychiatric Services Unit, Behavioral 24 Management Unit, or an Administrative Segregation Unit for misconduct described in subdivision 25 (b) or upon validation as a prison gang member or associate is ineligible to earn credits pursuant to 26 Section 2933 or 2933.05 during the time he or she is in the Security Housing Unit, Psychiatric 27 Services Unit, Behavioral Management Unit, or the Administrative Segregation Unit for that 28 2 1 misconduct.” Cal. Penal Code § 2933.6 (as amended effective Jan. 25, 2010) (emphasis added). 2 The 2010 amendment added the italicized phrase to § 2933.6. 3 Before the 2010 amendment, “it was apparently possible for validated prison gang members 4 placed in an [administrative segregation unit] to earn conduct credits totaling one-third of their 5 sentences.” In re Efstathiou, 200 Cal. App. 4th 725, 728. (Cal. Ct. App. 2011). After the 6 amendment, a validated gang member in administrative segregation could not earn such conduct 7 credits. 8 C. 9 Gregory’s Habeas Petitions Gregory filed unsuccessful petitions for writ of habeas corpus in the state courts asserting his Ex Post Facto Clause challenge to § 2933.6 as applied to him. The Del Norte County Superior 11 For the Northern District of California United States District Court 10 Court rejected his petition in a short, but reasoned, decision. See Resp. Ex. 10. The Del Norte 12 County Superior Court cited In re Sampson, 197 Cal. App. 4th 1234 (Cal. Ct. App. 2011), which 13 held that the amendment to § 2933.6 denying conduct credits to validated gang members housed in 14 the SHU applied prospectively only and therefore did not violate the prohibition against ex post 15 facto laws. The California Court of Appeal rejected Gregory’s petition in a one-sentence denial with 16 a citation to Sampson. See Resp. Ex. 12. The California Supreme Court summarily denied 17 Gregory’s petition. See Resp. Ex. 14. 18 Gregory then filed a federal petition for writ of habeas corpus in which he contended that the 19 application of California Penal Code § 2933.6, as amended effective January 25, 2010, violated his 20 right to be free of ex post facto laws. He indicated that the application of the amended version of 21 Section 2933.6 resulted in his expected release date being extended from March 20, 2012 until 22 August 5, 2012. The Court issued an order to show cause why the petition should not be granted. 23 Respondent filed an answer. Petitioner filed a traverse. The matter is ready for decision on the 24 merits. 25 /// 26 /// 27 /// 28 /// 3 1 2 III. JURISDICTION AND VENUE This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. 3 § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the 4 execution of a sentence for a prisoner incarcerated in Del Norte County, California, which is within 5 this judicial district. 28 U.S.C. §§ 84, 2241(d). 6 7 IV. EXHAUSTION Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings 8 either the fact or length of their confinement are required first to exhaust state judicial remedies, 9 either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in 11 For the Northern District of California United States District Court 10 federal court. See 28 U.S.C. § 2254(b), (c). 12 Respondent contends that state court remedies have been exhausted for only the first of 13 Gregory’s two claims. Respondent reads the federal petition to allege claims that (1) § 2933.6 14 violates the Ex Post Facto Clause as applied to Gregory’s sentence, and (2) § 2933.6’s application to 15 his sentence undermines the terms of his plea agreement. Gregory’s petition does argue that his plea 16 agreement entitles him to good behavior credits, but the argument is not a separate claim for relief 17 and instead is a further argument as to why there was an Ex Post Facto Clause violation. That it is 18 further argument in support of the first claim is evident from the way Gregory’s argument about his 19 plea agreement roughly tracks the language in one of the Supreme Court’s ex post facto cases 20 discussed later in this order.1 There is only one claim in the petition, and state judicial remedies 21 were exhausted for it. 22 23 24 25 26 27 28 1 Gregory argues in his petition: “Petitioners plea agreement for his prison sentence entitles him to good behavior credits. Good behavior credits were a significant factor in his sentencing and plea agreement and a determinate in his decision for the plea agreement. Once that determinate was taken punishment was increased violating ex post facto.” Docket # 1, p. 6 (errors in source). This argument about the plea agreement tracks language in Weaver v. Graham, 450 U.S. 24 (1981), in which the Supreme Court rejected an argument by the State that the good conduct law was not part of the original sentence or punishment attached to the crime for Weaver. “[W]e need not determine whether the prospect of the gain time was in some technical sense part of the sentence to conclude that it in fact is one determinant of petitioner’s prison term – and that his effective sentence is altered once this determinant is changed . . . We have previously recognized that 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.” Id. at 32. 4 1 2 V. STANDARD OF REVIEW This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 3 custody pursuant to the judgment of a State court only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 5 2254 is the proper jurisdictional basis for a habeas petition attacking the execution of the sentence 6 by a petitioner in custody pursuant to the judgment of a State court. See White v. Lambert, 370 F.3d 7 1002, 1004 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 554 8 (9th Cir. 2010). impose new restrictions on federal habeas review. A petition may not be granted with respect to any 11 For the Northern District of California The Antiterrorism And Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254 to 10 United States District Court 9 claim that was adjudicated on the merits in state court unless the state court’s adjudication of the 12 claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 13 clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 14 resulted in a decision that was based on an unreasonable determination of the facts in light of the 15 evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 16 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 17 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the 18 state court decides a case differently than [the] Court has on a set of materially indistinguishable 19 facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). 20 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the 21 state court identifies the correct governing legal principle from [the] Court’s decisions but 22 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal 23 habeas court may not issue the writ simply because that court concludes in its independent judgment 24 that the relevant state-court decision applied clearly established federal law erroneously or 25 incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court 26 making the “unreasonable application” inquiry should ask whether the state court’s application of 27 clearly established federal law was “objectively unreasonable.” Id. at 409. 28 5 1 VI. 2 DISCUSSION The parties appear to agree that, due to the amendment of § 2933.6, Gregory has earned 3 fewer time credits after January 25, 2010 than he would have earned under the former law. Gregory 4 contends that applying the amended § 2933.6 to him violates the Ex Post Facto Clause because the 5 2010 amendment increased the punishment for his 2008 crime. Respondent contends that the 6 amended § 2933.6 does not increase the punishment for Gregory’s 2008 crime and instead penalizes 7 his prison misconduct (i.e., active membership in a prison gang) occurring after January 25, 2010, 8 and therefore is not an impermissible ex post facto law. 9 A. Article I, section 10 of the United States Constitution prohibits the States from passing any 11 For the Northern District of California United States District Court 10 The Constitutional Provision And Its Application By The Supreme Court ex post facto law. “To fall within the ex post facto prohibition, a law must be retrospective – that is, 12 ‘it must apply to events occurring before its enactment’ – and it ‘must disadvantage the offender 13 affected by it,’ . . . by altering the definition of criminal conduct or increasing the punishment for the 14 crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations omitted). The general rule appears at 15 first blush to be quite straightforward, but its application is more complex when one attempts to 16 determine the date to be used for retrospectivity purposes and to determine the “punishment” to 17 which the rule applies. Several Supreme Court cases must be considered to understand the Court’s 18 approach to determining retrospectivity as well as the punishment being affected. 19 In Lindsey v. Washington, 301 U.S. 397 (1937), the Court found an Ex Post Facto Clause 20 violation in the application of an amended sentencing statute to a petitioner who committed his 21 crime before its amendment where the amended statute made mandatory that which had been only 22 the maximum sentence under the old statute. Id. at 400. Although the prisoner could have been 23 given the same 15-year sentence under both the old and amended statutes, applying the amended 24 statute to him violated the Ex Post Facto Clause. Id. at 401. “It is plainly to the substantial 25 disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give 26 them freedom from custody and control prior to the expiration of the fifteen-year term.” Id. at 401- 27 02. 28 6 finding of an Ex Post Facto Clause violation where the State had amended a statute to forbid a 3 prisoner from earning good conduct deductions for the first six months after his reincarceration 4 following a parole violation. See Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass. 1967), 5 summarily aff’d, Scafati v. Greenfield, 390 U.S. 713 (1968).2 The lower court held the amendment 6 unconstitutional when applied to an inmate who committed his crime before the law’s amendment. 7 At the time the prisoner originally was sentenced, “he was entitled to earn ‘good-conduct’ 8 deductions from the sentence imposed throughout the period of his incarceration.” Id. at 644. The 9 state’s practice was to identify a tentative date of release by computing at the outset of a prisoner’s 10 sentence the total good conduct credits the prisoner could earn. Id. If the prisoner misbehaved and 11 For the Northern District of California Several decades after Lindsey, the Supreme Court summarily affirmed a lower court’s 2 United States District Court 1 failed to earn any of the time credits already deducted, they were forfeited by an appropriate 12 extension of the tentative date of release, although no forfeiture was provided for violating parole. 13 Id. at 644-45. The statute later was amended in 1965 to provide that an inmate who was released on 14 parole and violated parole would not be allowed to earn good-conduct deductions for the first six 15 months after he was returned to prison. Id. The amendment did not apply to persons then on parole, 16 but did apply to persons who were still in prison. Although Greenfield had been sentenced before 17 the amendment took effect, he was paroled, and then violated parole after the amendment. Id. Upon 18 his return to prison on the parole violation, he was subjected to the amended statute. The district 19 court held the amended statute could not be applied constitutionally to persons such as Greenfield. 20 See id. at 646. The Supreme Court summarily affirmed. 21 The Supreme Court next considered an ex post facto claim regarding time credits in Weaver 22 v. Graham, 450 U.S. 24 (1981). In Weaver, Florida changed the formula for calculating good time 23 credits, reducing the credits available for good conduct. The Court emphasized that the appropriate 24 25 26 27 28 2 Although Greenfield is a summary affirmance, it is a judgment on the merits. See Hicks v. Miranda, 422 U.S. 332, 344 (1975). Summary affirmances “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions,” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); see also Edelman v. Jordan, 415 U.S. 651, 671 (1974) (summary affirmances are of less precedential value than opinions treating the question on the merits). The Supreme Court later cited the Greenfield summary affirmance with approval in Weaver, 450 U.S. at 32, 34. 7 1 focus was on whether the new statute objectively “lengthen[ed] the period that someone in 2 petitioner’s position must spend in prison.” Id. at 33. According to the Court, “an inmate who 3 performs satisfactory work and avoids disciplinary violations could obtain more gain time per month 4 under the repealed provision, § 944.27(1) (1975) than he could for the same conduct under the new 5 provision, § 944.275(1) (1979).” Thus, “[f]or prisoners who committed crimes before its enactment, 6 § 944.275(1) substantially alters the consequences attached to a crime already completed, and 7 therefore changes ‘the quantum of punishment,’” decreasing the rate at which good time credits 8 could be earned, and effectively increasing the punishment for crimes committed before its 9 enactment. Weaver, 450 U.S. at 33. As a result, the new law ran “afoul of the prohibition” against ex post facto laws. Id. at 36. 11 For the Northern District of California United States District Court 10 In Lynce v. Mathis, 519 U.S. 433 (1997), the Supreme Court articulated the test as requiring 12 that the law “must be retrospective – that is, ‘it must apply to events occurring before its enactment’ 13 – and it ‘must disadvantage the offender affected by it’ . . . by altering the definition of criminal 14 conduct or increasing the punishment for the crime.” Id. at 441.3 The Supreme Court found an ex 15 post facto violation in a change in Florida law concerning provisional early release time credits 16 awarded to inmates to alleviate prison overcrowding. Lynce had been convicted of attempted 17 murder and sentenced to 22 years in prison at a time when Florida law provided for early release 18 credits to prisoners if prison populations exceeded certain pre-determined levels. Lynce was 19 released from prison in 1992 based in part on his accumulated 1,860 days of overcrowding credits. 20 Later that year, the Florida legislature enacted a statute canceling the overcrowding credits for 21 certain classes of inmates, including those who (like Lynce) had been convicted of attempted 22 murder. The Florida Attorney General opined that the statute should be applied retroactively, so 23 Lynce was arrested and sent back to prison to serve the sentence remaining without counting the 24 overcrowding credits. Lynce focused on whether the changed law increased the punishment, having 25 26 27 28 3 Two years before Lynce, the Supreme Court explained that a change in the law that merely deprived a prisoner of an opportunity to obtain an earlier release did not violate the Ex Post Facto Clause where the possibility of increased punishment was speculative and attenuated. California Dept. of Corrections v. Morales, 514 U.S. 499, 510 (1995). 8 1 noted that the operation of the amended law “to effect the cancellation of overcrowding credits and 2 the consequent reincarceration of petitioner was clearly retrospective.” Id. at 441. The Court held 3 that the new law violated the Ex Post Facto Clause. See id. at 441-47. The changed law did not 4 merely remove an opportunity for early release, but instead “made ineligible for early release a class 5 of prisoners who were previously eligible.” Id. at 447. 6 B. 7 8 State Court’s Rejection Of Gregory’s Claim In Gregory’s case, the last reasoned decision is from the Del Norte County Superior Court. The decision states: 9 The Petition is dismissed and the Order to Show Cause is discharged. Penal Code Section 2933.6 is not ex post facto. See In re Sampson (2011) 197 Cal. App. 4th 1234. There is also no merit to any claim that Section 2933.6 breaches contractual rights resulting from a plea bargain. Plea bargains do not entitle inmates to engage in prison misconduct, including gang activity. 11 For the Northern District of California United States District Court 10 12 13 14 Resp. Ex. 10. Sampson, on which the Supreme Court relied, had rejected ex post facto challenge to § 15 2933.6 by another inmate who, like Gregory, had been sentenced and validated as a gang member 16 before § 2933.6 was amended. Sampson explained that the Ex Post Facto Clauses of the federal and 17 California constitutions were “analyzed identically.” Sampson, 197 Cal. App. 4th at 1241. 18 Assuming arguendo that the credit-eliminating amendment to § 2933.6 constituted punishment, the 19 state appellate court in Sampson was “not convinced that it punishes the criminal conduct for which 20 petitioner was imprisoned, or that it punishes misconduct that occurred prior to January 25, 2010.” 21 Sampson, 197 Cal. App. 4th at 1241. 22 23 24 25 26 27 [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 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 gangrelated 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. 28 9 1 Id. at 1242. Sampson rejected petitioner’s argument that he “‘did nothing’ after January 25, 2010 to 2 bring himself within the ambit of the amended statute.” Id. The court saw ongoing misconduct that 3 could be punished based on its reasoning that prison gangs present a serious threat to the safety and 4 security of California prisons; a regulation prohibits inmates from knowingly promoting, furthering 5 or assisting any prison gang; the validation of a prison gang member is done with procedural 6 protections; and the gang validation represents a determination that the inmate warrants an 7 indeterminate SHU term as a severe threat to the safety of others or the security of the institution. 8 See id. at 1242-43. The validated “inmate continues to engage in the misconduct that brings him or 9 her within the amendment’s ambit” unless and until prison officials release the validated inmate into the general population, or the inmate becomes eligible for inactive review, or the inmate debriefs. 11 For the Northern District of California United States District Court 10 See id. at 1243.4 In short, what was punished was in-prison conduct which occurred after the 12 amendment, not the underlying crime and conviction. 13 C. 14 Analysis Gregory is not entitled to habeas relief because the California court’s rejection of his claim 15 was not contrary to, or an unreasonable application of, clearly established Federal law as set forth by 16 the Supreme Court. Specifically, the Court’s holding that (1) used the date of in-prison misconduct 17 rather than the date of the underlying criminal offense to determine whether the amended § 2933.6 18 was retrospective, and (2) determined that what was punished was not a past event but the ongoing 19 misconduct of gang membership was not contrary to, or an unreasonable application of, Supreme 20 Court holdings. 21 /// 22 /// 23 /// 24 25 26 27 28 4 Sampson also addressed the lower court’s concern that the sheer length of time that it took to complete the debriefing process could result in the deprivation of credit earning opportunity for an inmate who was no longer engaged in the misconduct of gang affiliation. The state appellate court noted that there was no evidence that, if the petitioner completed debriefing, he would be denied all the credits he otherwise would have earned after January 25, 2010. 197 Cal. App. 4th at 1243-44. Thus, there was only the speculative and attenuated possibility of increasing the measure of punishment that did not implicate the Ex Post Facto Clause. Id. at 1243-44 (citing Lynce and Morales). 10 1 The Del Norte County Superior Court’s approach and the Sampson decision on which the 2 Superior Court relied5 are not inconsistent with the Supreme Court’s holdings in Weaver and Lynce. 3 Unlike Gregory’s situation, Weaver and Lynce did not involve punishment of any post-conviction 4 misconduct. Instead, in both Weaver and Lynce, good time credits were unilaterally withdrawn or 5 diminished as a result of a change in the rules, a diminution not triggered by any particular 6 misconduct by the prisoner. The reduction in time credits available to those inmates who 7 demonstrated good conduct effectively punished the original crime rather than any recent conduct of 8 the prisoner. Neither Weaver nor Lynce precludes changes in law that punish prison misconduct 9 occurring after the change in law. In this regard, § 2933.6 is not being applied retrospectively to Gregory since it penalizes ongoing prison misconduct of participation in gangs.6 11 For the Northern District of California United States District Court 10 The only Supreme Court decision that supports Gregory’s challenge is Greenfield v. Scafati, 12 277 F. Supp. 644, supra, summarily aff’d, Scafati v. Greenfield, 390 U.S. 713. Greenfield could be 13 read as holding the relevant date for retrospectivity purposes is the date of Gregory’s criminal 14 offense rather than the date of the misconduct that impacted the time credits since the district court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 An ex post facto challenge to § 2933.6 also was rejected by another California Court of Appeal in In Re Efstathiou, 200 Cal. App. 4th 725 (Cal. Ct. App. 2011)(using similar analysis to that in Sampson); see also id. at 729 (distinguishing Supreme Court’s decision in Weaver by noting that the Weaver “inmate’s credits were reduced through no fault of his own”). The two federal cases located that considered § 2933.6 used reasoning similar to that in the California cases to reject the Ex Post Facto Clause challenge to the amendment. See Mares v. Stainer, 2012 WL 345923 (E. D. Cal. 2012) (applying amended § 2933.6 to a prisoner who had been convicted and validated before the effective date of the amendment did not violate the Ex Post Facto Clause because the conduct being punished – active association with a gang – is continuing in nature and has continued after the amendment to § 2933.6); Saavedra v. Cate, 2012 WL 1978846 (E. D. Cal. 2012) (same). 6 Prison gang affiliation is prohibited in California prisons and is, essentially, prison misconduct. See 15 Cal. Code Regs. § 3023(a) (“Inmates and parolees shall not knowingly promote, further or assist any gang as defined in section 3000”); id. at § 3000 (“gang” defined). Gang affiliation is viewed as ongoing misconduct by prison officials and state courts, see In Re. Lopez, 2011 WL 6329840, *7 (Cal. Ct. App. 2011) (unpublished decision). California courts reasonably could determine that a prospective prisoner could not expect the prohibited gang affiliation not to have any impact on the length of the prison term he ultimately will serve upon conviction. Gang affiliation thus would be like any of the other many forms of misconduct in prison that can affect the ultimate length of time the prisoner spends in prison. Even if the prisoner was validated as a gang member before § 2933.6 was amended, he did not lose any past credits earned but only lost the ability to earn credits after the amendment for his ongoing misconduct of being a gang member. The Del Norte County Superior Court reasonably could have determined that ongoing gang membership was just another form of misconduct that could result in a disciplinary, housing or classification decision that affected credit-earning eligibility without offending the Ex Post Facto Clause. 11 1 in Greenfield found an ex post facto violation even though a violation of parole which led to the 2 deprivation of credits occurred after passage of the new law. Unlike Weaver and Lynce, where good 3 time credits were unilaterally diminished despite the lack of any post-amendment misconduct, in 4 Greenfield the disadvantage was incurred as a result of post-amendment misconduct (the parole 5 revocation conduct). Yet the district court found an ex post facto violation. 6 However, a summary affirmance by the Supreme Court has a limited precedential value. 7 Edelman v. Jordan, 415 U.S. 651, 671 (1974). It only prevents a lower court from coming to the 8 opposite conclusion on the “precise issues presented and necessarily decided.” Mandel v. Bradley, 9 432 U.S. 173, 176 (1977) (per curiam). The precise issue in Greenfield involved the constitutionality of a change in law which effectively increased a sentence upon revocation of 11 For the Northern District of California United States District Court 10 parole. The district court focused particularly on the right to parole and the consequences of 12 denying or burdening that opportunity. See Id. at 646. The district court did not analyze the ex post 13 facto doctrine outside the context of parole revocation; it did not address the situation here where the 14 state has increased punishment (by denying good time credits) for ongoing prison conduct. While 15 the Supreme Court’s summary affirmance in Greenfield could be read more broadly to support 16 Gregory’s ex post facto claim, given its limited precedential value as a summary affirmance, this 17 Court cannot conclude that it must be read so broadly. To read Greenfield to effectively bar prisons 18 from enlarging the list of punishable prison misconduct or enhancing penalties therefor, even if 19 prospectively applied, would have sweeping consequences for prison administration; absent a clear 20 holding from the Supreme Court, this Court cannot find that such a holding is mandated by clearly 21 established federal law. 22 Finally, the Court notes several appellate courts have adopted views consistent with the 23 California court’s analysis of the ex post facto claim herein. See Ellis v. Norris, 232 F.3d 619, 620- 24 21 (8th Cir. 2000) (state court’s decision that repeal of statute that had allowed prison officials 25 discretion to award additional good time credits did not violate Ex Post Facto Clause was not 26 contrary to or an unreasonable application of clearly established federal law – prisoner received all 27 the accrued extra good time credits and only lost the ability to be awarded additional good time 28 credits); Abed v. Armstrong, 209 F.3d 63, 66 (2d Cir. 2000) (rejecting ex post facto challenge to 12 1 administrative directive adopted ten years after petitioner was sentenced that disallowed good time 2 credits for inmates classified as security risk group safety threat members, because no good time 3 credit earned before the Directive was forfeited and petitioner was not so classified until after the 4 Directive was in effect).7 See Carey v. Musladin, 549 U.S. 70, 76-77 (2006) (varying views of lower 5 courts on issue reflects lack of guidance by Supreme Court precedent). 6 D. 7 A Certificate Of Appealability Will Issue Petitioner has “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. petitioner’s claim that the application of the amended version of California Penal Code § 2933.6 to 10 him violated his rights under the Ex Post Facto Clause. See Slack v. McDaniel, 529 U.S. 473, 484 11 For the Northern District of California § 2253(c)(2), and reasonable jurists would find debatable the district court’s assessment of 9 United States District Court 8 (2000). Accordingly, a certificate of appealability is GRANTED on the sole claim in the petition. 12 Petitioner is cautioned that the Court’s ruling on the certificate of appealability does not relieve him 13 of the obligation to file a timely notice of appeal if he wishes to appeal. 14 VII. 15 16 17 CONCLUSION The petition for writ of habeas corpus is DENIED on the merits. The Clerk shall close the file. IT IS SO ORDERED. 18 19 Dated: June 20, 2012 20 _________________________ EDWARD M. CHEN United States District Judge 21 22 23 24 25 26 27 28 7 The California Supreme Court took this approach in evaluating an earlier amendment to a time credit law in In re Ramirez, 39 Cal.3d 931, 936-37 (Cal. 1985) (amendments that modified manner in which inmates earned and forfeited sentence credits were not retrospective; “[t]here is a critical difference between a diminution of the ordinary rewards for satisfactory performance of a prison sentence – the issue in Weaver – and an increase in sanctions for future misbehavior in prison – which is at issue here.”); but see id. at 939 (Reynoso, J., dissenting) (the amendments are retrospective; “[t]he incorrectness of the majority’s line of analysis is demonstrated by the contrary and correct analysis of Greenfield v. Scafati”). 13

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