Guillen v. Ducart

Filing 15

ORDER OF DISMISSAL. Petition is DENIED. A certificate of appealability will not issue. Signed by Judge William H. Orrick on 10/18/2016. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 10/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROJELIO A. GUILLEN,

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Case No. 16-cv-03637-WHO (PR)

Petitioner,

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v.

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ORDER OF DISMISSAL

CLARK DUCART,

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Respondent.

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United States District Court
Northern District of California

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INTRODUCTION
Habeas petitioner Rojelio Guillen challenges on ex post facto grounds the

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constitutionality of California Penal Code section 2933.6, a statute which rendered him, as

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a validated associate of a prison gang, ineligible for various time credits.1 His attempts to

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obtain relief from the state courts were unsuccessful. This federal habeas petition

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followed. But because the case law on which Guillen relies is no longer good law, his

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petition for federal habeas relief is DENIED.

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STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this

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Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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The petition may not be granted with respect to any claim that was adjudicated on the

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merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a

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decision that was contrary to, or involved an unreasonable application of, clearly

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This is how the Court construes Guillen’s claim that his jailors failed to restore his credits
after section 2933.6 was declared unconstitutional by Hinojosa, v. Davey, 803 F.3d 412
(9th Cir. 2015), a Ninth Circuit decision discussed below.

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established Federal law, as determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

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of law or if the state court decides a case differently than [the] Court has on a set of

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materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13

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(2000).

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“Under the ‘unreasonable application’ clause, a federal habeas court may grant the
writ if the state court identifies the correct governing legal principle from [the] Court’s

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United States District Court
Northern District of California

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decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at

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413. “[A] federal habeas court may not issue the writ simply because that court concludes

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in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly. Rather, that application must also be

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unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application”

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inquiry should ask whether the state court’s application of clearly established federal law

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was “objectively unreasonable.” Id. at 409.

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DISCUSSION

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Guillen’s ex post facto claim is that his jailors failed to restore his credits after the

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Ninth Circuit in Hinojosa v. Davey, 803 F.3d 412 (9th Cir. 2015) declared that California

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Penal Code section 2933.6, when reviewed without AEDPA deference, violates the Ex

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Post Facto Clause. The problem with this claim is that Hinojosa was overturned by the

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U.S. Supreme Court and is no longer good law. Kernan v. Hinojosa, 136 S. Ct. 1603

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(2016). I must apply an earlier Ninth Circuit decision, Nevarez v. Barnes, 749 F.3d 1124

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(9th Cir. 2014). In that case, the Ninth Circuit, sitting in federal habeas review, explicitly

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rejected an ex post facto challenge to section 2933.6. Id. at 1128. Nevarez forecloses

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Guillen’s claim.

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It is worth noting that Hinojosa would not have entitled Guillen to habeas relief in
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any event. AEDPA review applies to a claim adjudicated on the merits by the state court;

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if there was no such adjudication, review is de novo. Review in Hinojosa was de novo

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because the Ninth Circuit concluded that Hinojosa’s claim had not been adjudicated on the

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merits in state court. Review in Nevarez fell under the AEDPA standard because the

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claims had been adjudicated on the merits in state court. Guillen’s ex post facto claim was

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adjudicated on the merits in state court; it is subject to AEDPA review. (Pet., Exs. D, E;

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App’x. B (orders from the state supreme, appellate, and superior courts denying Guillen’s

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petitions for relief that raised the same claims offered here)).

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CONCLUSION
The state court’s adjudication of Guillen’s claims did not result in decisions that

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United States District Court
Northern District of California

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were contrary to, or involved an unreasonable application of, clearly established federal

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law, nor did they result in decisions that were based on an unreasonable determination of

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the facts in light of the evidence presented in the state court proceeding. Accordingly, the

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petition is DENIED.

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A certificate of appealability will not issue. Reasonable jurists would not “find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Guillen may seek a certificate of appealability from

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the Ninth Circuit Court of Appeals.

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The Court notes that the filing fee has been paid.

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IT IS SO ORDERED.

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Dated: October 18, 2016
_________________________
WILLIAM H. ORRICK
United States District Judge

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