Manuel Nevarez v. Ron Barnes

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL FRANCISCO NEVAREZ, No. 12-17060

Petitioner-Appellant,

D.C. No.

v. 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

2 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 Petitioner-

Appellant.

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.

NEVAREZ V. BARNES 3

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

4 NEVAREZ V. BARNES

[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

NEVAREZ V. BARNES 5

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

6 NEVAREZ V. BARNES

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).

NEVAREZ V. BARNES 7

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 post-

conviction 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.

8 NEVAREZ V. BARNES

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 post-

enactment 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

NEVAREZ V. BARNES 9

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.