Williams v. Roe

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRIS FRANCIS WILLIAMS,  No. 03-56064

Petitioner-Appellant,

v.  D.C. No.

CV 02-0351 R

ERNEST ROE, Warden,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

October 7, 2004—Pasadena, California

Filed August 24, 2005

Before: Harry Pregerson, A. Wallace Tashima, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Tashima

11447

WILLIAMS v. ROE 11449

COUNSEL

Diane E. Berley, West Hills, California, for the petitioner-

appellant.

Alana R. Cohen Butler, Deputy Attorney General, San Diego,

California, for the respondent-appellee.

OPINION

TASHIMA, Circuit Judge:

Appellant Chris Francis Williams appeals the district

court’s denial of his petition for writ of habeas corpus. Wil-

liams challenges under the Ex Post Facto Clause the state

court’s application of an amended version of California Penal

Code § 654. The amended statute eliminated judicial discre-

tion to impose a lower sentence afforded by the version in

place at the time of Williams’ offense. We hold that applica-

tion of the amended statute was an ex post facto violation.

11450 WILLIAMS v. ROE

Further, under our case law, such an error requires reversal

without inquiring into its harmfulness. We therefore condi-

tionally grant the writ of habeas corpus and remand.

FACTS

The indictment against Williams contained nine counts

based on three separate incidents. Counts 1 and 2 (robbery)

and counts 3, 4, and 5 (kidnaping for robbery) stemmed from

a June 1996 incident at a Kragen Auto Parts Store in San Ber-

nardino. Williams entered the store, pointed a gun at the clerk,

and stated “This is a robbery” and “Give me all the money.”

After the clerk put money into a box, Williams instructed

another employee to carry the box and forced him and two

other employees to accompany Williams approximately 200

yards to a parking lot. Williams then took the box and ordered

the employees to walk back to the store.

Count 6 (robbery) and counts 7 and 8 (kidnaping for rob-

bery) were based on a July 1996 incident at a San Bernardino

Radio Shack. Williams showed a gun to two men working at

the store and told them it was a robbery. One of the two

employees put money from the register into a box and, at Wil-

liams’ direction, the two accompanied him approximately 200

hundred feet down the street. Williams then took the box from

the employee holding it and instructed the two to return to the

store.

An August 1996 incident gave rise to count 9 of the indict-

ment (robbery). Williams entered a Redlands Kragen Auto

Parts store, pointed a gun at the clerk, and directed him to

open the safe. The clerk placed money from the safe into a

box, handed it to Williams, and let Williams out of the store.

PROCEDURAL BACKGROUND

Williams was convicted in San Bernardino County Supe-

rior Court on four counts of robbery and five counts of kid-

WILLIAMS v. ROE 11451

naping for robbery. The court sentenced him to two

consecutive life terms and a consecutive determinate term of

27 years. On appeal, the California Court of Appeal held that

the trial court violated California Penal Code § 654, by

imposing separate sentences for robbery and kidnaping for

robbery convictions based on the same act. The Court of

Appeal stayed the sentence on the pertinent robbery counts,

which carried lower penalties than the corresponding kidnap-

ing counts, and affirmed the rest of the judgment. The trial

court then modified Williams’ sentence to two life sentences

with possibility of parole plus 11 years and four months. The

court sentenced Williams under the amended version of

§ 654, which provided that an act punishable under different

provisions of law could only be punished under one of those

provisions. The amended statute also required the court to

impose the sentence for the count carrying a higher sentence

when multiple counts were based on the same act. The Cali-

fornia Supreme Court denied Williams’ petition for review.

The San Bernardino County Superior Court subsequently

denied Williams’ petition for a writ of habeas corpus. He then

filed a habeas petition in the Court of Appeal, which was also

denied. The California Supreme Court also denied a subse-

quent habeas petition.

Williams then filed this federal habeas petition, which the

district court denied. Williams filed a timely notice of appeal,

but the district court denied Williams a certificate of appeala-

bility (“COA”). We subsequntly issued a COA limited to the

question of whether the state trial court’s application of the

amended version of California Penal Code § 654, violated

Williams’ rights under the Ex Post Facto clause.

ANALYSIS

We review de novo a district court’s denial of a 28 U.S.C.

§ 2254 habeas petition. Campbell v. Rice, 408 F.3d 1166,

1169 (9th Cir. 2005). Because Williams’ federal petition was

filed after the effective date of the Antiterrorism and Effective

11452 WILLIAMS v. ROE

Death Penalty Act of 1996 (“AEDPA”), the AEDPA’s provi-

sions apply. Id. The AEDPA limits a federal habeas court’s

review of a state court’s decision to determining whether it

was: “(1) contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) based on an unrea-

sonable determination of the facts in light of the evidence

presented in the State court proceeding.” Id. at 1170 (quoting

28 U.S.C. § 2254(d)(1)-(2)) (internal quotation marks omit-

ted); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003)

(explaining this standard). The question in Williams’ case is

whether, at the time the state trial court imposed sentence

under the amended version of § 654, the holdings of the

Supreme Court established governing legal principles dictat-

ing that it do otherwise. See Andrade, 538 U.S. at 71-72.

I. Ex Post Facto Violation

[1] When the state court resentenced Williams, the

Supreme Court had considered the application of the Ex Post

Facto Clause to state statutes in two cases similar to this one.

In Lindsey v. Washington, 301 U.S. 397 (1937), the Court

found an ex post facto violation because the petitioners had

been sentenced under a law making mandatory what had been

the maximum term for their offense when they committed the

crime. The Lindsey petitioners were convicted of grand lar-

ceny. Id. at 397. At the time of the offense, the penalty for

grand larceny was imprisonment for not more than 15 years.

Id. at 397-98. The statute permitted the imposition of a sen-

tence up to the maximum term and also set a minimum sen-

tence of not less than six months or more than five years. Id.

at 398. Once the prescribed minimum sentence elapsed, a

parole board could order the prisoner released on parole. Id.

A statute enacted after commission of the offense, but before

petitioners’ sentencing, required the judge to impose the max-

imum term provided by law. Id. It also empowered the parole

board to determine the length of each prisoner’s confinement

up to the maximum term. Id. at 398-99. Thus, under the law

WILLIAMS v. ROE 11453

in effect at the time of the offense, the petitioners could have

been sentenced to a maximum term of less than 15 years. Id.

at 400. The intervening change in law required that they

receive a 15-year sentence during which the parole board had

the discretion to grant supervised release. Id. The Lindsey

court reasoned that such “an increase in the possible penalty

is ex post facto, regardless of the length of the sentence actu-

ally imposed, since the measure of punishment prescribed by

the later statute is more severe than that of the earlier.” Id. at

401 (citations omitted).

Weaver v. Graham, 450 U.S. 24 (1981), held a Florida stat-

ute unconstitutional as applied to a petitioner who committed

his crime before its enactment. The statute diminished the

number of “gain-time” credits that prisoners could earn for

good behavior. Id. at 25-26. Such credits reduced the portion

of a prisoner’s sentence that he would be required to serve. Id.

In finding an ex post facto violation, Weaver identified two

critical elements of an ex post facto law: “it must be retro-

spective, that is, it must apply to events occurring before its

enactment, and it must disadvantage the offender affected by

it.” Id. at 29. The court reasoned that the statute substantially

altered the consequences attached to the petitioner’s already-

completed crime and that it disadvantaged him by lengthening

the time he would have to stay in prison. Id. at 33.

[2] The reasoning of Lindsey and Weaver dictate applica-

tion of the version of § 654 in effect when Williams commit-

ted his crimes.1 In March 2000, the trial court resentenced

1

While conceding that a “technical” ex post facto violation occurred, the

State suggests that Lindsey was not “clearly established” federal law at the

time of sentencing because its “viability has been questioned,” citing

Barnes v. Scott, 201 F.3d 1292, 1294-95 (10th Cir. 2000). Barnes refers

to a footnote in the Supreme Court’s opinion in Cal. Dep’t of Corr. v.

Morales, 514 U.S. 499 (1995), which states:

Our opinions in Lindsey, Weaver, and Miller suggested that

enhancements to the measure of criminal punishment fall within

11454 WILLIAMS v. ROE

Williams under the amended version of § 654, which pro-

vided that: “An act or omission that is punishable in different

ways by different provisions of law shall be punished under

the provision that provides for the longest potential term of

imprisonment, but in no case shall the act or omission be pun-

ished under more than one provision.” Cal. Pen. Code § 654

(2000). At the time Williams committed his crimes, § 654

provided that: “An act or omission which is made punishable

in different ways by different provisions of this code may be

punished under either of such provisions, but in no case can

it be punished under more than one.” Cal. Pen. Code § 654

(1996).

[3] Under the earlier version of § 654, the trial court had

the discretion to sentence Williams for either of two crimes he

was convicted of based on the same act, i.e., robbery or kid-

naping for robbery. By contrast, the amended version of the

statute required the trial court to sentence him for the crime

carrying the higher penalty. Because the amended statute

removed the judge’s discretion to impose a lighter sentence,

applying it to Williams violated the Ex Post Facto Clause

under Lindsey, 301 U.S. at 401, and Weaver, 450 U.S. at 29.

The state trial court’s application of the amended version of

the ex post facto prohibition because they operate to the “disad-

vantage” of covered offenders. But that language was unneces-

sary to the results in those cases and is inconsistent with the

framework developed in Collins v. Youngblood. After Collins,

the focus of the ex post facto inquiry is not on whether a legisla-

tive change produces some ambiguous sort of “disadvantage,”

nor, as the dissent seems to suggest, on whether an amendment

affects a prisoner’s “opportunity to take advantage of provisions

for early release,” but on whether any such change alters the defi-

nition of criminal conduct or increases the penalty by which a

crime is punishable.

Id. at 506 n.3 (citations omitted). Morales, however, did not overrule Lind-

sey and Weaver, but distinguished them by pointing out that the laws there

at issue “had the purpose and effect of enhancing the range of available

prison terms.” Id. at 507.

WILLIAMS v. ROE 11455

§ 654 was thus contrary to clearly established Supreme Court

precedent.

II. Applicability of Harmless Error Analysis

The State argues that the ex post facto violation resulting

from application of the amended version of § 654 was harm-

less error. It suggests that we should apply the Brecht stan-

dard of harmless error review, determining whether the ex

post facto error had a “substantial and injurious effect” on the

judgment. See Brecht v. Abrahamson, 507 U.S. 619, 632 n.7,

638 (1993). Under the Brecht standard, a trial-type constitu-

tional error is harmless unless it has a “substantial and injuri-

ous effect or influence in determining the jury’s verdict.” Id.

The ex post facto error at issue here, however, occurred at

sentencing — not during trial — when the court applied the

amended version of § 654. It is thus not a trial-type error that

would affect a jury’s verdict. Accordingly, we reject the

State’s contention that an ex post facto violation is a “trial-

type” error subject to Brecht harmless error analysis.2

[4] We turn, instead, to our case law which specifically

addresses ex post facto violations. The Supreme Court has

noted that “[t]he proper relief upon a conclusion that a state

prisoner is being treated under an ex post facto law is to

remand to permit the state court to apply, if possible, the law

in place when his crime occurred.” Weaver, 450 U.S. at 36

n.22; see also Murtishaw v. Woodford, 255 F.3d 926, 967 (9th

Cir. 2001). In Murtishaw, after concluding that “[t]aking dis-

2

The Supreme Court has also identified a narrow category of constitu-

tional errors that is not subject to harmless error analysis. See Neder v.

United States, 527 U.S. 1, 8 (1999) (noting that structural errors requiring

automatic reversal include: a complete denial of counsel; a biased trial

judge; racial discrimination in the selection of a grand jury; denial of self-

representation at trial; denial of a public trial; and a defective reasonable

doubt instruction). But just as the ex post facto violation here cannot be

categorized as a “trial-type” error, it also cannot be categorized as a

“structural” error which affects the structure of a trial.

11456 WILLIAMS v. ROE

cretion away from a sentencer violates the Ex Post Facto

clause,” id. at 965, we reversed the petitioner’s death sentence

and remanded for resentencing under the proper statute. Id. at

967, 974. We did not apply harmless error analysis to the ex

post facto violation.3 Id.

[5] Thus, in Murtishaw, we implicitly concluded that an ex

post facto sentencing violation which results in taking away

the sentencer’s discretion is the type of error which has a sub-

stantial and injurious effect on the sentence or, at the least,

was the type of error as to which we could not determine with

any degree of confidence whether it had a substantial effect

on the sentence.4 Cf. O’Neal v. McAninch, 513 U.S. 432, 445

(1995) (concluding that, with respect to trial-type error,

“when a habeas court is in grave doubt as to the harmlessness

of an error that affects substantial rights, it should grant

relief”); United States v. Ameline, 409 F.3d 1073, 1079 (9th

Cir. 2005) (en banc) (“Rather than affirm a sentence that was

unconstitutional and may have been prejudicial, we elect to

remand to the district court to answer the question whether the

sentence would have been different had the court known that

the Guidelines were advisory.”); id. at 1081 (noting that “it is

a miscarriage of justice to give a person an illegal sentence”

(quoting United States v. Paladino, 401 F.3d 471, 483 (7th

Cir. 2005))).

[6] Our cases following Murtishaw are also consistent in

their view that a showing of harm or prejudice from an ex post

facto violation is not required as a precondition to habeas

relief. See Brown v. Palmateer, 379 F.3d 1089, 1091, 1096

3

We did, however, apply Brecht harmless error analysis to a jury

instruction error resulting from application of the ex post facto statute,

identifying jury instruction error as a “trial-type error that occurred during

the presentation of the case to the jury.” Murtishaw, 255 F.3d at 973.

4

We also note that the State’s countervailing interest in finality is much

less weighty with respect to resentencing, as opposed to retrial, at least in

the non-capital context.

WILLIAMS v. ROE 11457

(9th Cir. 2004) (holding that postponement of a habeas peti-

tioner’s parole date pursuant to a statutory amendment

enacted after the commission of his crime violated the Ex Post

Facto Clause and, accordingly, reversing the denial of his

habeas petition without conducting a harmless error analysis);

Hunter v. Ayers, 336 F.3d 1007, 1011-13 (9th Cir. 2003)

(holding that the application of an amended prison regulation

to deny restoration of good time credits constituted an ex post

facto violation and affirming habeas relief without conducting

a harmless error analysis); Himes v. Thompson, 336 F.3d 848,

864 (9th Cir. 2003) (concluding that an ex post facto violation

occurred when the parole board subjected a habeas petitioner

to parole regulations that were more onerous than those in

place at the time he committed his offense and granting

habeas relief without conducting a harmless error analysis). In

short, given an ex post facto sentencing violation, our case

law is clear and consistent that Williams is entitled to habeas

relief.

CONCLUSION

[7] The district court’s denial of Williams’ petition for a

writ of habeas corpus is reversed and the case is remanded to

the district court with instructions to grant the writ, unless the

State resentences Williams under the applicable version of

§ 654 within a reasonable period of time to be determined by

the district court.

REVERSED and REMANDED.