Cruz v. Lewis

Filing 15

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Lucy H. Koh on 1/9/14. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 1/9/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PEDRO CRUZ,

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Petitioner,

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v.
WARDEN G.D. LEWIS,

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Respondent.

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No. C 12-1617 LHK (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. He claims that his constitutional right to be free from ex post
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facto laws was violated when prison officials applied to him a statute that had been amended as
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of January 25, 2010, to decrease the time credits he would earn in prison. Respondent was
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ordered to show cause why the petition should not be granted. Respondent has filed an answer.
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Petitioner has filed a traverse. Having reviewed the briefs and the underlying record, the court
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concludes that petitioner is not entitled to relief, and DENIES the petition.
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BACKGROUND
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A.

Petitioner’s Criminal and Prison History

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In December 2008, petitioner was validated as an associate of the Mexican Mafia prison
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gang. (Pet. at 6(2), Resp. ¶ 3.) As a result, petitioner was given an indeterminate term in the
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Security Housing Unit (“SHU”). (Id.)

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Under state regulations and rules of the California Department of Corrections &

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Rehabilitation (“CDCR”), an inmate who has been validated and placed in the SHU may be

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eligible to be reviewed for inactive gang status after six years of non-involvement in gang

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activity. See Cal. Code Regs. tit. 15, § 3378(e). Once validated, an inmate can also drop out of

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his prison gang at any time by completing a debriefing process. See Cal. Code Regs. tit. 15, §

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3378.1. There is no evidence that petitioner has debriefed or been deemed inactive in the prison

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gang.

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B.

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Section 2933.6
On January 25, 2010, California Penal Code section 2933.6 was amended as follows:

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“Notwithstanding any other law, a person who is placed in a Security Housing Unit, Psychiatric

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Services Unit, Behavioral Management Unit, or an Administrative Segregation Unit for

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misconduct described in subdivision (b) or upon validation as a prison gang member or

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associate is ineligible to earn credits pursuant to Section 2933 or 2933.05 during the time he or

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she is in the Security Housing Unit, Psychiatric Services Unit, Behavioral Management Unit, or

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the Administrative Segregation Unit for that misconduct.” Cal. Penal Code § 2933.6 (emphasis

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added).

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Before section 2933.6 was amended, it was “possible for validated prison gang members

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placed in [a SHU] to earn conduct credits totaling one-third of their sentences.” In re Efstathiou,

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200 Cal. App. 4th 725, 728 (2011). After the amendment, however, a validated gang member or

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associate in a SHU could not earn conduct credits. See id. at 732.

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C.

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Application of Section 2933.6
Before section 2933.6 was amended, petitioner earned credits while in the SHU as a

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validated prison gang associate. Specifically, petitioner was given one day’s worth of credit for

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two days served, and was given a parole date of December 6, 2020. (Pet. at 6(2).) But after

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section 2933.6 was amended, he was ineligible to earn these credits, and his parole date was

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recalculated and postponed until November 6, 2021. (Pet. at 6(c).)

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STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody 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). The

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petition may not be granted with respect to any claim that was adjudicated on the merits in state

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

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that was

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based on an unreasonable determination of the facts in light of the evidence presented in the

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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 of

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

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indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “Under the

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‘reasonable application clause,’ a federal habeas court may grant the writ if the state court

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identifies the correct governing legal principle from [the] Court’s decisions but unreasonably

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applies that principle to the facts of the prisoner’s case.” Id. at 413.

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“[A] federal habeas court may not issue the writ simply because the court concludes in its

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independent judgment that the relevant state-court decision applied clearly established federal

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law erroneously or incorrectly. Rather, the application must also be unreasonable.” Id. at 411.

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A federal habeas court making the “unreasonable application” inquiry should ask whether the

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state court’s application of clearly established federal law was “objectively unreasonable.” Id. at

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409.

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The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is

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in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court

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decision. Id. at 412. Clearly established federal law is defined as “the governing legal principle

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or principles set forth by the Supreme Court.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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Circuit law may be “persuasive authority” for purposes of determining whether a state court
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decision is an unreasonable application of Supreme Court precedent, however, only the Supreme

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Court’s holdings are binding on the state courts, and only those holdings need be “reasonably”

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applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

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DISCUSSION

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Petitioner claims that applying amended section 2933.6 to deny him conduct credits

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violates the Ex Post Facto Clause because the amendment increased the punishment for his

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conviction by lengthening the duration of his sentence. Respondent contends that amended

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section 2933.6 does not increase the punishment for petitioner’s conviction and instead penalizes

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prison misconduct (i.e., active association in a prison gang) occurring after January 25, 2010.

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Therefore, argues respondent, the application of the amended statute is not an impermissible ex

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post facto law. Respondent further contends that petitioner’s claim is without merit because the

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state courts’ rejection of the claim was not contrary to, or involved an unreasonable application

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of, clearly established Supreme Court precedent, as required by 28 U.S.C. § 2254(d).

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A.

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Clearly established Supreme Court law
The United States Constitution prohibits the states from passing any ex post facto law.

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U.S. Const. art. I, § 10. “To fall within the ex post facto prohibition, a law must be retrospective

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– that is, ‘it must apply to events occurring before its enactment’ – and it ‘must disadvantage the

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offender affected by it,’ . . . by altering the definition of criminal conduct or increasing the

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punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations omitted).

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Although the general rule appears straightforward, its application is more complex when

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attempting to determine the date to be used for retrospective analysis and the punishment to

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which the rule applies.

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The Supreme Court rulings that shed some light on the court’s approach to determining
retrospectivity and the punishment affected, can be summarized as follows:
An amendment making mandatory a sentence that was the maximum permissible
under old law was an impermissible ex post facto law when applied to a person
who committed his crime before the amendment. ([Lindsey v. Washington, 301
U.S. 397 (1937).]) An amendment forbidding prisoners from earning good
conduct credits for six months after reincarceration following a parole violation
was an impermissible ex post facto law for a prisoner who violated parole after
the amendment but had been sentenced under the old law. ([Scafatti v.
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Greenfield, 390 U.S. 713 (1968) (summary affirmance).]) An amendment that
reduced the amount of good time credits that could be earned was an
impermissible ex post facto law when applied to a prisoner whose crime was
committed before the amendment was enacted. ([Weaver v. Graham, 450 U.S. 24
(1981).]) An amendment that presented at most a speculative potential of a
longer confinement (by increasing intervals between parole hearings for inmates
most unlikely to be paroled) did not violate the Ex Post Facto Clause.
([California Dep’t of Corrections v. Morales, 514 U.S. 499 (1995).]) An
amendment taking away accumulated provisional credits was an impermissible ex
post facto law because it lengthened a period of incarceration for [a] person
sentenced under the old law. ([Lynce v. Mathis, 519 U.S. 433 (1997).]).

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Nevarez v. Lewis, No. C 12-1912 SI (PR), 2012 WL 3646895, at *6 (N.D. Cal. Aug. 23, 2012).

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B.

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Analysis
The federal courts have taken different approaches to Ex Post Facto Clause claims

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regarding time credits. Some federal courts – like the California state courts – have considered

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the relevant date for retrospectivity purposes to be the date of an “in-prison event”, and the

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punishment to be the time credit deprivation. This approach generally results in no ex post facto

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violation being found. See, e.g., Hunter v. Ayers, 336 F.3d 1007, 1009-10 (9th Cir. 2003) (using

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date of prison misconduct as relevant date for analysis of amendment to law regarding credit loss

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and restoration); Ellis v. Norris, 232 F.3d 619, 620-21 (8th Cir. 2000) (state court’s decision that

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repeal of statute that had allowed prison officials discretion to award additional good time credits

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did not violate Ex Post Facto Clause was not contrary to or an unreasonable application of

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clearly established federal law – prisoner received all the accrued extra good time credits and

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only lost the ability to be awarded additional good time credits); Abed v. Armstrong, 209 F.3d

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63, 66 (2d Cir. 2000) (administrative directive adopted ten years after petitioner was sentenced

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that disallowed good time credits for inmates classified as “security risk group safety threat

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members”; “unlike Lynce and Weaver, the [d]irective was not applied retroactively” to petitioner

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because no good time credit earned before the directive was forfeited and petitioner was not so

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classified until after the directive was in effect).

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Other federal courts have considered the relevant date to be the date of the criminal

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offense, conviction or sentencing, and the punishment to be the original sentence for the crime.

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This approach is more likely to result in a finding of an ex post facto violation. See, e.g., Moor

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v. Palmer, 603 F.3d 658, 664 (9th Cir. 2010) (statute that was amended in 1997 to require a
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psychological review as a precondition for parole for offenses such as petitioner’s “was applied

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retroactively” to petitioner who had been convicted in 1994 at a time when a psychological

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review was not needed); Ellis v. Norris, 232 F.3d 619, 621 (8th Cir. 2000) (state “concedes that

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the repeal of extra good-time credit applies retroactively, i.e., it applies to prisoners serving

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sentences imposed prior to the repeal, as well as to those serving sentence imposed afterward”).

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This split in approaches among the federal courts tends to show the absence of clear

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guidance from the Supreme Court on the ex post facto analysis of in-prison events. Accord

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Nevarez, 2012 WL 3646895, at *7.

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California state courts have considered the relevant date for retroactivity purposes to be

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the date of an in-prison event and the punishment to be the time-credit deprivation. Generally,

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California state courts have found no ex post facto violation. The approach has been used since

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the California Supreme Court decided In re Ramirez, 39 Cal. 3d 931 (1985).

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In Ramirez, the California Supreme Court found a statutory amendment was not

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retroactive, and therefore did not violate the ex post facto principle. The statutory amendment at

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issue increased the amount of sentence reduction credits that could be forfeited for prison

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misbehavior. 39 Cal. 3d at 932-33. The amendment was applied to an inmate who committed

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his criminal offense, for which he was imprisoned, before the effective date of the amendment.

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The California Supreme Court distinguished the United States Supreme Court’s opinion in

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Weaver as follows:

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There 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.
Here, [unlike in Weaver], petitioner’s opportunity to earn good behavior and
participation credits is unchanged. All that has changed are the sanctions for
prison misconduct. Unlike Weaver, petitioner’s effective sentence is not altered
by the [statutory amendment] unless petitioner, by his own action, chooses to alter
his sentence.

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Id. at 937.
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Similarly, in In re Sampson, 197 Cal. App. 4th 1234 (2011), the California Court of
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Appeal used this approach to reject the ex post facto challenge to section 2933.6 from an inmate
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who, like petitioner, had been sentenced and validated as a gang affiliate before section 2933.6
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was amended. Sampson explained that the Ex Post Facto Clauses of the federal and California

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constitutions were “analyzed identically.” 197 Cal. App. 4th at 1241. Assuming arguendo that

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the credit-eliminating amendment to section 2933.6 constituted punishment, the state appellate

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court was “not convinced that it punishes the criminal conduct for which petitioner was

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imprisoned, or that it punishes misconduct that occurred prior to January 25, 2010.” Id. “It is

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punishment for gang-related conduct that continued after January 25, 2010.” Id. at 1242. The

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Sampson court found ongoing misconduct that could be punished based on its reasoning that

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prison gangs present a serious threat to the safety and security of California prisons; a regulation

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prohibits inmates from knowingly promoting, furthering or assisting any prison gang; the

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validation of a prison gang member or associate is done with procedural protections; and the

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validation represents a determination that the inmate warrants an indeterminate SHU term as a

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severe threat to the safety of others or the security of the institution. See id. at 1242-43. The

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validated “inmate continues to engage in the misconduct that brings him or her within the

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amendment’s ambit” unless and until prison officials release the validated inmate into the

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general population, or the inmate becomes eligible for inactive review, or the inmate debriefs.

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See id. at 1243.

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In In re Efstathiou, 200 Cal. App. 4th 725 (2011), the California Court of Appeal rejected

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another ex post facto challenge to section 2933.6 from an inmate who had been sentenced and

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validated as a gang affiliate before section 2933.6 was amended. The state appellate court

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agreed with the reasoning of Sampson and, like Ramirez, distinguished the United States

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Supreme Court’s Weaver decision, noting that, in Weaver, the “inmate’s credits were reduced

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through no fault of his own.” Efstathiou, 200 Cal. App. 4th at 729. The state appellate court

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further distinguished Weaver, stating that the sanctions for possible future prison misconduct,

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e.g., being prohibited from earning conduct credits by choosing to be an active member of a

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prison gang, could not constitute a significant factor for either the trial judge when calculating

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petitioner’s sentence, or the petitioner when deciding to plead guilty. Id. at 732.

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In sum, the California state courts that have addressed the ex post facto claim at issue
have (1) used the date of the in-prison misconduct rather than the date of the criminal offense or
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conviction to determine whether the amended section 2933.6 was retroactive, and (2) determined

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that the amended section 2933.6 was not retroactive because it only punishes inmates for prison

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misconduct (i.e., active membership in a prison gang) occurring after January 25, 2010. Similar

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reasoning has been used by federal courts to reject similar ex post facto challenges to the

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amended section 2933.6 on federal habeas review. See Alfaro v. Lewis, No. 12-1555 CRB, 2013

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WL 3124592 (N.D. Cal. June 18, 2013); Gregory v. Lewis, No. C 12-0967 EMC (PR), 2012 WL

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2343903 (N.D. Cal. June 20, 2012); Saavedra v. Cate, No. 1:12-CV-00796 GSA HC, 2012 WL

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1978846 (E.D. Cal. June 1, 2012); Mares v. Stainer, No. 11-cv-1746-LJO-DLB (HC), 2012 WL

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345923 (E.D. Cal. Feb. 1, 2012).

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Given the lack of holdings (let alone clear holdings) from the United States Supreme

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Court on the denial of conduct credits for ongoing misconduct, it simply cannot be said that the

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California courts unreasonably applied clearly established United States Supreme Court

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precedent in rejecting petitioner’s ex post facto claim. See 28 U.S.C. § 2254(d); Nevarez, 2012

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WL 3646895, at *10. Accordingly, petitioner’s ex post facto claim must be DENIED.

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CONCLUSION

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The petition for writ of habeas corpus is DENIED. The federal rules governing habeas

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cases brought by state prisoners require a district court that denies a habeas petition to grant or

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deny a certificate of appealability (“COA”) in its ruling. See Rule 11(a), Rules Governing §

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2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has not shown “that jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.

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The Clerk is instructed to enter judgment in favor of respondent and close the file.

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IT IS SO ORDERED.

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1/9/14
DATED: __________________

_________________________
LUCY H. KOH
United States District Judge

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