Richard Gilman v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD M. GILMAN, Nos. 14-15613

Plaintiff-Appellee/Cross-Appellant, 14-15680

v. D.C. No.

2:05-cv-00830-

EDMUND G. BROWN, JR.; JONES LKK-CKD

MOORE, Board of Prison Terms; J.

DAVIS; M. HOCHINO; BOOKER

WELCH, Board of Prison Terms OPINION

Commissioner; SUSAN FISHER; L.

DININNI, Board of Prison Terms

Deputy Commissioner; M. PEREZ;

DENNIS KENNEALLY; NOREEN

BLONIEN, Board of Prison Terms

Deputy Commissioner; BOARD OF

PAROLE HEARINGS,

Defendants-Appellants/Cross-

Appellees.

Appeals from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted

June 15, 2015—San Francisco, California

Filed February 22, 2016

2 GILMAN V. BROWN

Before: Susan P. Graber, Consuelo M. Callahan,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

SUMMARY*

Prisoner Civil Rights

The panel reversed the district court’s bench trial

judgment and remanded with instructions to enter judgment

for the State of California in an action brought by California

inmates under 42 U.S.C. § 1983 seeking to enjoin the

application of Propositions 89 and 9, through which

California voters amended the State’s Constitution and Penal

Code pertaining to the State’s parole system.

Proposition 89 amended the California Constitution to

vest in the Governor constitutional authority to reverse,

affirm, or modify the Board of Parole Hearings’ grants of

parole as to inmates convicted of murder. Proposition 9

amended the California Penal Code to increase the default

period of time after which a prisoner would be scheduled for

a parole hearing, after the denial of parole. Plaintiffs asserted

that Proposition 89 and 9 violated the Ex Post Facto Clause

by creating a significant risk that their periods of

incarceration will be longer than they would have been before

the passage of the Propositions.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GILMAN V. BROWN 3

Addressing the constitutionality of Proposition 89 as

applied to plaintiffs, the panel held that Johnson v. Gomez, 92

F.3d 964, 965 (9th Cir. 1996), controlled the outcome. The

panel determined that there was no evidence that governors

had reversed the Board other than on the basis of the same

factors which the parole authority is required to consider.

Nor did plaintiffs offer evidence showing that they would

have received parole before the enactment of Proposition 89,

and that Proposition 89 changed that result. Therefore, the

panel concluded that Proposition 89 remained only a transfer

of decisionmaking power, which does not violate the Ex Post

Facto Clause.

Addressing plaintiffs’ as-applied challenge to Proposition

9, the panel held that the district court committed legal error

by basing its findings principally on speculation and

inference, rather than on concrete evidence. The panel

concluded that the district court erred by finding that the

Penal Code’s petition to advance process, Cal. Penal Code

§ 3041.5(d)(1), by which inmates can request that the Board

advance the date of their next parole hearing, failed to afford

relief from the classwide risk of lengthened incarceration

posed by Proposition 9. The panel held that the district

court’s findings, viewed under the correct legal standard,

were insufficient to support a conclusion that, on this record,

an as-applied Ex Post Facto Clause violation had occurred.

COUNSEL

Christopher John Rench (argued) and Maria G. Chan, Deputy

Attorneys General, California Department of Justice,

Sacramento, California; Sara Romano, Supervising Deputy

Attorney General, California Department of Justice, San

4 GILMAN V. BROWN

Francisco, California, for Defendants-Appellants/Cross-

Appellees.

Monica Knox (argued), David Miles Porter, and Ann

Catherine McClintock, Assistant Federal Public Defenders,

Federal Public Defender’s Office, Sacramento, California, for

Plaintiff-Appellee/Cross-Appellant.

Mark Zahner, Chief Executive Officer, California District

Attorneys Association, Sacramento, California; Bonnie M.

Dumanis, District Attorney, and Richard J. Sachs, Deputy

District Attorney, San Diego, California, for Amicus Curiae

California District Attorneys Association.

Richard Crane, San Diego, California, as and for pro se

Amicus Curiae.

OPINION

BEA, Circuit Judge:

In California, voters have the power to change criminal-

sentencing law at the ballot box. They can amend statutes and

the state constitution. In 1988 and again in 2008, the voters

exercised this power through the passage of Proposition 89

and then Proposition 9. Proposition 89 amended the

California Constitution to vest in the Governor constitutional

authority to reverse, affirm, or modify grants of parole as to

inmates convicted of murder. Such authority had previously

been vested solely in the Board of Parole Hearings.

Proposition 9 amended the California Penal Code to increase

GILMAN V. BROWN 5

the default period of time after which a prisoner would be

scheduled for a parole hearing, after the denial of parole.

No party to this action challenges the authority of voters

to make such changes. However, California inmates who

were sentenced to life terms with the possibility of parole for

murders committed before the passage of the two

Propositions, led by Richard Gilman, contend that applying

the Propositions to them creates a significant risk that their

periods of incarceration will be longer than they would have

been before the passage of the Propositions. If the application

of either Proposition creates a significant risk of a longer

period of incarceration, the Proposition violates the Ex Post

Facto Clause of the Federal Constitution. Gilman and two

classes of similarly situated plaintiffs sued under 42 U.S.C.

§ 1983 to enjoin the application of Propositions 89 and 9 as

to them.

After a bench trial, the district court found in favor of the

plaintiffs. As to the class members who were convicted of

crimes committed before the passage of Proposition 89, the

district court enjoined the Governor from imposing a longer

sentence than that required by application of the same factors

the Board of Parole Hearings is required to consider. The

district court further ordered the Board of Parole Hearings,

after denying a class member parole, to schedule that

inmate’s next parole hearing according to the deferral periods

in place before the passage of Proposition 9. We reverse.

I. Facts and Procedural History

Until 1988, the California Board of Parole Hearings

(“Board”) had the exclusive power to make parole decisions.

In 1988, California voters passed Proposition 89, which

6 GILMAN V. BROWN

amended the California Constitution to grant the Governor

the authority to affirm, modify, or reverse decisions of the

Board with respect to inmates convicted of murder.1

In 2008, through another ballot initiative, which did not

affect Proposition 89, California voters changed the parole

scheme again, this time by statutory amendment, in

Proposition 9.2 Before the passage of Proposition 9, prisoners

1

Proposition 89 added, in pertinent part, the following language to Cal.

Const. art. V, § 8:

No decision of the parole authority of this state with

respect to the granting, denial, revocation, or

suspension of parole of a person sentenced to an

indeterminate term upon conviction of murder shall

become effective for a period of 30 days, during which

the Governor may review the decision subject to

procedures provided by statute. The Governor may only

affirm, modify, or reverse the decision of the parole

authority on the basis of the same factors which the

parole authority is required to consider. . . .

2

Proposition 9 amended Cal. Penal Code § 3041.5(b) to read, in

pertinent part:

(3) The board shall schedule the next hearing, after

considering the views and interests of the victim, as

follows:

(A) Fifteen years after any hearing at which parole

is denied, unless the board finds by clear and

convincing evidence that the criteria relevant to the

setting of parole release dates . . . are such that

consideration of the public and victim’s safety

does not require a more lengthy period of

incarceration for the prisoner than 10 additional

years.

GILMAN V. BROWN 7

sentenced to life with the possibility of parole received an

annual parole-suitability hearing by default. After denying

such a prisoner parole, if the Board determined that it was not

reasonable to expect that the prisoner would be granted parole

within a year, the Board could schedule the prisoner’s next

parole hearing up to five years later for murderers and up to

two years later for non-murderers. Following the passage of

Proposition 9, after denying such a prisoner parole, the Board

may schedule his next parole hearing fifteen, ten, seven, five,

or three years later (the “deferral periods”).

(B) Ten years after any hearing at which parole is

denied, unless the board finds by clear and

convincing evidence that the criteria relevant to the

setting of parole release dates . . . are such that

consideration of the public and victim’s safety

does not require a more lengthy period of

incarceration for the prisoner than seven additional

years.

(C) Three years, five years, or seven years after

any hearing at which parole is denied, because the

criteria relevant to the setting of parole release

dates . . . are such that consideration of the public

and victim’s safety requires a more lengthy period

of incarceration for the prisoner, but does not

require a more lengthy period of incarceration for

the prisoner than seven additional years.

(4) The board may in its discretion, after

considering the views and interests of the victim,

advance a hearing set pursuant to paragraph (3) to

an earlier date, when a change in circumstances or

new information establishes a reasonable

likelihood that consideration of the public and

victim’s safety does not require the additional

period of incarceration of the prisoner provided in

paragraph (3).

8 GILMAN V. BROWN

Notwithstanding these deferral periods, Proposition 9

allows an inmate to request that the Board advance the date

of his next parole hearing. To do so, an inmate submits a

petition to advance (“PTA”) setting forth “the change in

circumstances or new information that establishes a

reasonable likelihood that consideration of the public safety

does not require the additional period of incarceration of the

inmate.” Cal. Penal Code § 3041.5(d)(1). The Board has sole

discretion to grant or deny a PTA; it may also advance an

inmate’s next parole hearing sua sponte. Id. § 3041.5(b)(4),

(d)(2). If the Board denies the inmate’s PTA, the inmate may

not submit another PTA for three years. Id. § 3041.5(d)(3).

In 2005, Gilman and other California inmates convicted

of murders committed before November 2, 1988, sued the

State under 42 U.S.C. § 1983. Gilman alleged that

Proposition 89 retroactively increased the punishments of

class members, in violation of the Ex Post Facto Clause, and

sought to enjoin the enforcement of Proposition 89. In 2009,

Gilman amended and supplemented his complaint to allege

that Proposition 9 also violated the Ex Post Facto Clause. To

that end, he added a subclass composed of inmates who were

convicted of an offense committed on or after November 8,

1988, the date of Proposition 89’s passage, but before

November 4, 2008, the date of Proposition 9’s passage.3

Gilman moved for a preliminary injunction to bar

enforcement of Proposition 9 based on the allegations that it

violated the Ex Post Facto Clause. The district court ruled

that Gilman was likely to succeed on the merits of his claim

and granted the motion. The State filed an interlocutory

appeal and, in a published opinion, we reversed, “[b]ecause

3

We use “Gilman” to refer to all plaintiffs and class members.

GILMAN V. BROWN 9

on the current record Proposition 9 does not create a

significant risk of prolonging [Gilman’s] incarceration on any

of the theories [he] assert[s], [and] [Gilman] ha[s] not

established that [he is] likely to succeed on the merits of [his]

ex post facto claim.” Gilman v. Schwarzenegger (Gilman I),

638 F.3d 1101, 1111 (9th Cir. 2011).

At a bench trial, as to the Ex Post Facto Clause claim

against Proposition 89, Gilman proffered evidence showing

that between 1991 and 2010 the Governor reversed more than

70% of the Board’s decisions granting parole to prisoners

with murder convictions. The district court found that most

such reversals were related to prisoners “who were already

beyond their ‘life terms,’ so that but for Proposition 89 and

the Governor’s reversal, they would have been released

already.”4

Based on this evidence, the district court found that

Proposition 89 “was passed in order to lengthen the amount

of time class members would spend in prison by creating a

new mechanism for withholding parole, namely, the

governor’s veto” and, “[t]rue to the law’s intentions,

California governors have used [Proposition 89] to withdraw

the possibility of parole from most class members.” The

district court thus held that Proposition 89, as implemented

by California Governors, is a “plain violation of the ex post

facto clause as to those inmates whose crimes were

4

When the Board grants parole to a prisoner sentenced to life with the

possibility of parole, it calculates a release date that depends, in part, on

the crime of conviction and the presence of aggravating or mitigating

factors. See Cal. Code Regs. tit. 15, §§ 2280–2292. The district court

found that most parole grants reversed by the Governor were for prisoners

who continued to be incarcerated beyond the release date calculated by the

Board.

10 GILMAN V. BROWN

committed before Proposition 89.” The district court ordered

the Governor to “refrain from imposing longer sentences on

class members than are called for by application of the same

factors the Board is required to consider, as provided for by

Proposition 89.”

As to Proposition 9, the district court made findings

regarding the comparative frequency of parole hearings, and

comparative rates of parole grants, before and after the

passage of Proposition 9. To do this, the district court relied

on the experience of inmates who had been involved in state

litigation, In re Rutherford, No. SC135399A (Cal. Super. Ct.,

Marin Cty., filed May 26, 2004). In Rutherford, petitioner

Jerry Rutherford was denied parole in 2003 and was

scheduled for a hearing the next year, under the pre-

Proposition 9 statute. The Board did not provide the required

hearing within the year. Rutherford filed a petition in habeas

corpus, in California state court, to challenge the hearing

delay. The state court certified a class of “prisoners serving

indeterminate terms of life with the possibility of parole who

have approached or exceeded their minimum eligible parole

dates without receiving their parole hearings within the time

required.” After class certification, the Board stipulated that

it was not providing timely parole hearings. The Rutherford

class and the State then agreed to a remedial plan to conduct

the hearings. Some Rutherford class members had not

received the hearings to which they were entitled under the

plan when Proposition 9 became effective. Those class

members moved for a preliminary injunction to enjoin the

Board from applying Proposition 9 to them. The application

for a preliminary injunction was settled by stipulation, under

which some prisoners who had already had hearings (after

Proposition 9 but before entry of the stipulation), had been

denied parole, and had their deferral periods calculated under

GILMAN V. BROWN 11

Proposition 9, were entitled to adjustments of their deferral

periods to conform to the pre-Proposition 9 deferral periods.

Those prisoners who had not received hearings stipulated to

specific deferral periods or to hearings conducted under the

pre-Proposition 9 statute.

The district court then made findings regarding the

efficacy of the PTA process, as “the availability of advance

hearings is relevant to whether the changes in the frequency

of parole hearings create a significant risk that prisoners will

receive a greater punishment.” Gilman I, 638 F.3d at 1108.

The State argued that its PTA process mitigated any risk that

sentences would be unconstitutionally lengthened. The

district court disagreed.

The district court found that, when he reviews a PTA, a

decisionmaker designated by the Board5 analyzes the

petitioner’s asserted change in circumstances or new

information without reference to whether a prisoner has made

“a move from unsuitability to suitability” and that some

prisoners who had become suitable would not be able to

advance their hearings by filing a PTA. That is, the district

court concluded that a PTA’s contention that a prisoner is

now suitable, though he was unsuitable before, is not in itself

considered a change in circumstances. The district court

found that this interpretation meant that some prisoners who

would have been found suitable for parole at their next

suitability hearing under the pre-Proposition 9 version of Cal.

5

Review of PTAs is divided into an initial review and a final review. A

PTA must pass the initial review before a Commissioner or Deputy

Commissioner of the Board conducts a final review. The precise

mechanics of this process changed in 2014, but that change was not a

basis for the district court’s decision.

12 GILMAN V. BROWN

Penal Code § 3041.5(d)(1) were not able to advance their

hearing to less than the three-year deferral period, because

their suitability was not deemed a changed circumstance or

new information, and so an advance hearing was not granted.

The district court pointed to the example of one prisoner,

M. Brodheim, who filed a federal habeas petition on due-

process grounds after the Board had denied him parole; he

claimed that the Board lacked “some evidence” that he was

unsuitable for parole.6 The district court agreed and entered

a conditional writ of habeas corpus, to issue unless Brodheim

were given a parole hearing. The State appealed and, while

the appeal was pending, held a Board hearing, at which the

Board found Brodheim suitable for parole. We subsequently

reversed the judgment which granted the conditional writ on

the ground that the district court erred in its finding that the

Board lacked “some evidence” of Brodheim’s unsuitability

for parole. The Board then vacated its suitability finding and

set Brodheim for a three-year deferral under Proposition 9.

Brodheim filed a PTA, citing his suitability for parole as

found by the Board. The Board denied his PTA on the ground

that there was no evidence of the requisite changed

circumstances or new information, although it had found him

suitable for parole. The district court found Brodheim’s

situation to be evidence that, in some cases, the Board does

not “upon request, schedule advance hearings for prisoners

who become suitable.” Gilman I, 638 F.3d at 1109.

The district court also found that the PTA process did not

prevent a significant risk of lengthened incarceration for

prisoners whose parole determinations hinged on psychiatric

6

Brodheim did not assert that the Board violated the Ex Post Facto

Clause.

GILMAN V. BROWN 13

evaluations known as the Comprehensive Risk Assessment

(“CRA”) (administered every five years) and the Subsequent

Risk Assessment (“SRA”) (administered before a parole-

suitability hearing) because an SRA could be ordered only in

conjunction with a hearing, not a PTA. Therefore, the district

court reasoned, a prisoner could not show changed

circumstances through his risk assessment, as one would not

be conducted in connection with the PTA.

Similarly, the district court found that the PTA process

would not advance hearings for some prisoners whose PTAs

were written in Spanish, because the decisionmakers assigned

to review the PTAs could not review documents in Spanish

and “could not determine whether the standard had been met

until the documents were translated.” The district court

pointed to one instance in which a PTA was denied on this

ground.

The district court concluded that “the PTA process is not

sufficient to protect inmates from the ex post facto problems

inherent in Proposition 9.” Based on its findings, the district

court ordered the Board to apply the pre-Proposition 9

version of Cal. Penal Code § 3041.5 to class members. The

State appealed the district court’s decision.

II. Standard of Review

We review the district court’s legal conclusions de novo,

its factual findings for clear error, and the scope of the

injunctions for abuse of discretion. Armstrong v. Brown,

768 F.3d 975, 979 (9th Cir. 2014).

14 GILMAN V. BROWN

III. Analysis

A change in law violates the Ex Post Facto Clause of the

Federal Constitution when it “inflicts a greater punishment[]

than the law annexed to the crime, when committed.” Peugh

v. United States, 133 S. Ct. 2072, 2078 (2013) (internal

quotation marks omitted). In Gilman I, we set forth the

relevant inquiry:

Plaintiffs cannot succeed on the merits of their

ex post facto claim unless (1) Proposition 9,

on its face, created a significant risk

of increasing the punishment of

California life-term inmates, or (2)

Plaintiffs can “demonstrate, by evidence

drawn from [Proposition 9’s] practical

implementation . . . , that its retroactive

application will result in a longer period of

incarceration than under the [prior law].”

638 F.3d at 1106 (alterations in original) (quoting Garner v.

Jones, 529 U.S. 244, 255 (2000)). We already rejected

Gilman’s facial challenge to Proposition 9 in Gilman I, and

now Gilman brings an as-applied Ex Post Facto Clause

challenge based on “evidence drawn from Proposition 9’s

practical implementation.” Id.

Although we stated that Gilman must show that the

retroactive application of Proposition 9 “will result in a

longer period of incarceration,” we think it is enough for

Gilman to prove that Proposition 9 “created a significant risk

of increasing his punishment.” Garner, 529 U.S. at 255

(emphasis added). Garner, on which we relied in Gilman I,

used both forms of the test, but ultimately concluded that

GILMAN V. BROWN 15

“respondent must show that as applied to his own sentence

the law created a significant risk of increasing his

punishment. This remains the issue in the case.” Id. (emphasis

added).7 Moreover, any doubt we may have had on this point

was dispelled by the Supreme Court’s decision in Peugh,

7

Garner presented a situation very similar to this case. In 1982, Robert

Jones was sentenced to a life term for a murder he committed after he

escaped from prison. 529 U.S. at 247. At the time he committed this

crime, Georgia law required the State’s Board of Pardons and Paroles

(“Georgia Board”) to hold parole-suitability hearings every three years

after an initial denial of parole. Id. In 1985, before Jones’s initial parole

hearing, the Georgia Board changed its rules to require periodic

reconsideration of parole “at least every eight years.” Id. Consistent with

this rule change, after the Georgia Board denied Jones parole, it set his

next parole-suitability hearing for eight years later. Id. Jones filed suit

under 42 U.S.C. § 1983 against members of the Georgia Board for

violating the Ex Post Facto Clause. Id. at 248. The district court entered

summary judgment for the defendants. Id. The Eleventh Circuit reversed,

holding that the rule change “seems certain to ensure that some number of

inmates will find the length of their incarceration extended in violation of

the Ex Post Facto Clause of the Constitution.” Id. at 249 (internal

quotation marks omitted).

The Supreme Court reversed. “The question is whether the amended

Georgia Rule creates a significant risk of prolonging respondent’s

incarceration. The requisite risk is not inherent in the framework of [the]

amended Rule . . . , and it has not otherwise been demonstrated on the

record.” Id. at 251 (citation omitted). Like Proposition 9, the amended rule

allowed prisoners to request “expedited parole reviews in the event of a

change in their circumstance or where the Board receives new information

that would warrant a sooner review.” Id. at 254. The Court ruled that,

“[w]hen the rule [increasing deferral periods] does not by its own terms

show a significant risk, the respondent must demonstrate, by evidence

drawn from the rule’s practical implementation by the agency charged

with exercising discretion, that its retroactive application will result in a

longer period of incarceration.” Id. at 255. The Court held that a prisoner

“must show that as applied to his own sentence the law created a

significant risk of increasing his punishment.” Id.

16 GILMAN V. BROWN

which was decided after Gilman I, and reiterated that “[o]ur

ex post facto cases . . . have focused on whether a change in

law creates a ‘significant risk’ of a higher sentence.” 133 S.

Ct. at 2088.8 That is the correct standard, which we now apply

to Gilman’s challenges to Propositions 89 and 9.

A. Proposition 89

We have already addressed the constitutionality of

Proposition 89 as applied to prisoners who were convicted of

crimes committed before November 2, 1988. In Johnson v.

Gomez, 92 F.3d 964, 965 (9th Cir. 1996), California state

prisoner Robert Johnson was convicted of first-degree murder

in 1977 and given an indeterminate sentence of 25 years to

life. After California voters passed Proposition 89, the Board

found Johnson eligible for parole. Id. Under Proposition 89,

Johnson was not eligible for release until the 30-day period

for gubernatorial review had passed. Id. The Governor

exercised his authority under Proposition 89 and reversed the

grant of parole. Id. Johnson sought state habeas and his

petition was denied. Id. Johnson then filed a federal habeas

petition, which the district court denied. Id. at 966.9

8

Both Garner and Peugh refer to “sufficient risk” and to “significant

risk,” apparently using the terms interchangeably. See Garner, 529 U.S.

at 250, 255; Peugh, 133 S. Ct. at 2083, 2088.

9

Johnson filed his petition before the Anti-Terrorism and Effective

Death Penalty Act of 1996 was passed, so he could have prevailed even

if the state court had not made a “decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court,” or “that was based on an

unreasonable determination of the facts in light of the evidence presented

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

GILMAN V. BROWN 17

We affirmed. Although we acknowledged that “the

purpose and effect of the law here is to lengthen prison terms

by making it more difficult for convicted murderers with

indeterminate sentences to be released on parole,” we held

that this did not violate the Ex Post Facto Clause. Id. at 967.

We ruled that “[t]he law . . . simply removes final parole

decisionmaking authority from the [Board] and places it in

the hands of the governor,” who “must use the same criteria”

as the Board. Id. We also noted that Johnson had not shown

that he would have received parole under the old system and,

therefore, Proposition 89 presented only a speculative risk of

unconstitutionally lengthening his period of incarceration. Id.

at 967–68.

Johnson controls here. The district court found that the

evidence presented at trial showed that Proposition 89, “in

actual practice, is not [a] ‘neutral’ transfer of final decision-

making authority from one decision-maker to another. . . .

[W]hile the governors could use the law to review parole

decisions to ensure that they are accurate and fair, they appear

to have no such concern about decisions that deny parole.”

However, as we noted in Johnson, the Governor must use the

same criteria to determine suitability as does the Board. Id. If

the district court’s finding that “governors have used

[Proposition 89] to tip the scales against parole,” is a finding

that California Governors are not obeying state law, that

finding is clearly erroneous. “Absent a demonstration to the

contrary, we presume [state actors] follow[] . . . statutory

commands.” Garner, 529 U.S. at 256. The district court did

not point to evidence that Governors had reversed the Board

other than “on the basis of the same factors which the parole

authority is required to consider.” Cal. Const. art. V, § 8(b).

Nor did Gilman offer evidence showing that he would have

received parole before the enactment of Proposition 89, and

18 GILMAN V. BROWN

that Proposition 89 changed that result. Therefore,

Proposition 89 remains only a transfer of decisionmaking

power, which does not violate the Ex Post Facto Clause.

The district court erred in finding that Johnson does not

control the outcome of Gilman’s challenge to Proposition 89.

We reverse the district court’s findings and injunction as to

Proposition 89, as to which Gilman is not entitled to relief.10

B. Proposition 9

We turn now to Proposition 9. The parameters for the

district court’s inquiry were set out in Gilman I. In that case,

we reversed the district court’s preliminary injunction against

the enforcement of Proposition 9 because, although

Proposition 9 “appear[ed] to ‘create[] a significant risk of

prolonging [Plaintiffs’] incarceration,’” Gilman I, 638 F.3d at

1108 (second and third alterations in original) (quoting

Garner, 529 U.S. at 251), the PTA process allowed an inmate

to advance his parole hearing if he could demonstrate a

“change in circumstances or new information that establishes

a reasonable likelihood that consideration of the public safety

does not require the additional period of incarceration,” id. at

1109 (quoting Cal. Penal Code § 3041.5(d)(1)).

At the outset, we note that proving a significant risk of

prolonged incarceration in parole cases requires exacting

evidence. The district court spent many pages of its opinion

establishing, based principally on statistics derived from the

Rutherford litigation, that Proposition 9 likely reduced the

frequency of parole hearings for class members. That result

10

Doing so renders moot Gilman’s cross-appeal as to the scope of

injunctive relief, as Gilman is not entitled to injunctive relief.

GILMAN V. BROWN 19

is not surprising. However, a decrease in the frequency of

parole hearings—without more—is not sufficient to prove a

significant risk of lengthened incarceration. Id. at 1106. Proof

of that risk is not a speculative inquiry. In California

Department of Corrections v. Morales, 514 U.S. 499, 508–09

(1995), the Supreme Court rejected the argument that a rule

change violates the Ex Post Facto Clause if it “might create

some speculative, attenuated risk of affecting a prisoner’s

actual term of confinement by making it more difficult for

him to make a persuasive case for early release.”

“[C]onjectural effects are insufficient under any threshold we

might establish under the Ex Post Facto Clause.” Id. at 509.

Moreover, Gilman must prove that Proposition 9 creates

a significant risk of lengthened incarceration “within the

whole context of [California’s] parole system,” Garner, 529

U.S. at 252, including the opportunity for relief offered by the

PTA process. In Gilman I, Gilman had urged four reasons

why the PTA process was inadequate on its face to remove a

significant risk of prolonged incarceration. 638 F.3d at

1109–10. We dealt with each one and found that none was

established facially. Id. On remand, to prevail on his Ex Post

Facto Clause claim, Gilman’s task was to prove, by evidence

drawn from Cal. Penal Code § 3041.5(d)(1)’s practical

implementation, that the rule, as applied to him and other

class members, did “not sufficiently reduce the risk of

increased punishment for prisoners.” Id. at 1109–11; see

Garner, 529 U.S. at 255.

To accomplish this task, Gilman marshaled evidence of

grants and denials of PTAs. This evidence included cases in

which (1) the PTA was granted and, at the consequent

advance hearing, parole was granted; (2) the PTA was

granted, but parole was ultimately denied; and (3) the PTA

20 GILMAN V. BROWN

was denied, resulting in no advance hearing. Based on this

evidence, the district court concluded that “[t]he PTA process

is structured such that it fails, in many cases, to afford

inmates a fair opportunity to obtain an advance hearing,” and

it “is not sufficient to protect inmates from the ex post facto

problems inherent in Proposition 9.”11

To reach this conclusion, the district court first reviewed

the PTA process and decided for itself that “the advance

hearing process sometimes works and sometimes does not

work,” because it “appears to deny advance hearings . . . to

those who facially appear to deserve them.” It then found that

certain structural features of the PTA process created

impediments to its proper functioning, rendering the PTA

process illusory for some class members. However, the

district court based these findings largely on speculation and

inference from anecdotal evidence, rather than evidence

drawn from Cal. Penal Code § 3041.5(d)(1)’s practical

implementation proving that the PTA process failed to

alleviate the classwide risk of lengthened incarceration posed

by Proposition 9. See Garner, 529 U.S. at 255; Morales,

511 U.S. at 508–09; Gilman I, 638 F.3d at 1106. Because the

11

The statistics and anecdotes derived from the Rutherford litigation, are

irrelevant to this question, because the inmates covered by the Rutherford

stipulated settlement avoided the PTA process. The district court noted

that several Rutherford petitioners who received parole hearings under the

pre-Proposition 9 scheme were released on parole before they would have

had their next parole hearing under Proposition 9. But those same inmates

might very well have been granted an advance hearing if they had

submitted a PTA. We do not know if those inmates would have achieved

an advance hearing upon PTAs, and neither Gilman nor the district court

made that connection. Any suggestion that Proposition 9 created a

significant risk of lengthened incarceration for those inmates is thus

conjectural.

GILMAN V. BROWN 21

district court applied the wrong standard, it committed legal

error, and the resulting factual findings are clearly erroneous.

We take each of the district court’s points in turn to

demonstrate the errors in its analysis.

1. Improper Denial of PTAs

In reviewing the PTA process, the district court first

satisfied itself that “the PTA system works at denying

petitions that ought to be denied,” and then turned to the

question “whether it grants petitions that ought to be

granted.” That the district court should so see its task is

curious in light of its (correct) understanding that it “does not

sit to review individual parole decisions.” Notwithstanding

this recognition of its limited review role, the district court

went on to consider whether petitions were denied that “ought

to [have been] granted.”

After reviewing certain case studies, the district court

concluded: “[T]he PTA [process] appears to deny advance

hearings . . . to those who facially appear to deserve them.”

But, to decide who “facially” deserves the grant of a PTA,

one must consider the merits of the grounds upon which the

PTA is made. The question whether those grounds merit the

grant of a PTA—like the question whether to grant parole—is

committed to the sole “unfettered discretion” of the Board. In

re Vicks, 295 P.3d 863, 882 (Cal. 2013); see Cal. Penal Code

§ 3041.5(d)(2); see also Swarthout v. Cooke, 562 U.S. 216,

220 (2011) (per curiam) (discussing the limits of federal

review of a state’s discretionary decisions with respect to the

grant or denial of parole). Indeed, as Garner teaches us, in

reviewing decisions of state parole authorities for potential

Ex Post Facto Clause issues, the question is not whether

“discretion has been changed in its exercise” by changes in

22 GILMAN V. BROWN

parole procedures, but whether discretion “will not be

exercised at all.” 529 U.S. at 254.12 It is undisputed that the

Board did exercise its discretion as to each of the PTAs in

question, granting some and denying others. We conclude

that the district court erred in using its disagreement with the

Board’s decisions about which PTAs ought to have been

granted or denied as a valid basis for finding an Ex Post Facto

Clause violation.13

2. “Amorphous” Burden on Inmates

The district court then identified and examined various

“structural problems” that could account for the Board’s

denial of PTAs. The most troubling problem found by the

district court was that Cal. Penal Code § 3041.5(d)(1) places

a new, additional, and “amorphous” burden on prisoners

seeking an advance hearing—to show a “‘change in

12

We recognize that in Garner, the Georgia Board retained discretion,

after denying parole, to schedule the next parole hearing at any time, and

that here, the Board must schedule its next hearing three years later, at the

soonest. However, the Board retains the power to advance a hearing sua

sponte so that it occurs in less than three years. Cal. Penal Code

§ 3041.5(b)(4). When the Board sets a hearing three years away, and does

not advance that hearing, or when the Board denies a PTA, the Board

necessarily exercises its discretion to deny parole by exercising its

discretion, through individual Commissioners or Deputy Commissioners,

to deny the PTA or advancement of the hearing. Thus, we treat the

Board’s exercise of discretion during the PTA process as an exercise of

discretion as to whether to grant or deny parole within the meaning of

Garner.

13

As we described supra with respect to Proposition 89, the Ex Post

Facto Clause is not violated just because two entities applying the same

criteria arrive at different conclusions regarding parole decisions. That is

all the more true here, because, unlike the Governor, the district court has

no direct oversight of parole or PTA decisions.

GILMAN V. BROWN 23

circumstances or new information’ . . . before [the Board]

will even consider the question of suitability for parole.” The

district court found that the Board has interpreted the statute

to require a “change in circumstances or new information”

“in a way that separates the ‘change in circumstances or new

information’ from the question of suitability.” (Emphasis

added.) This is an unnatural reading of Cal. Penal Code

§ 3041.5(d)(1), which specifically ties the “change in

circumstances or new information” to that which “establishes

a reasonable likelihood that consideration of the public safety

does not require the additional period of incarceration of the

inmate”; that is, suitability for parole.

Moreover, the evidence in the record favors this

commonsense reading of the statute and runs counter to the

district court’s finding. A non-exclusive list of examples

included in the Board’s training materials suggests that the

Board interprets Cal. Penal Code § 3041.5(d)(1) broadly. To

show new information or a changed circumstance, an inmate

need present only one or more of the building blocks that

could result in a suitability finding, such as an updated parole

plan, a job offer, completion of a substance-abuse-treatment

program, or attainment of an educational certificate. The

Board also requires, as does the statute, that the new

information or changed circumstance “establishes a

reasonable likelihood that consideration of public safety does

not require an additional period of incarceration”—that is,

that the new information or changed circumstance is

reasonably likely to result in a finding of suitability for

parole. In other words, if the Board follows its manual, it will

deny an advance hearing only if it concludes that the inmate

is unlikely to be found suitable for parole in light of all the

24 GILMAN V. BROWN

information presented.14 Such an inmate—one who is likely

unsuitable for parole—by definition is likely not to have

received parole before the enactment of Proposition 9. And an

inmate who was unsuitable a year ago and as to whom

nothing has changed, similarly, was as unlikely to obtain

parole before Proposition 9 as he is after. Cf. Morales,

514 U.S. at 512 (“For these prisoners, the amendment simply

allows the Board to avoid the futility of going through the

motions of reannouncing its denial of parole suitability on a

yearly basis.”).

The district court concluded that the Board separated the

“change in circumstances or new information” from parole

suitability based on “some examples” of PTA denials, in

particular, the denial of prisoner M. Brodheim’s PTA.15

14

Of course, “[a]bsent a demonstration to the contrary, we presume the

Board follows its statutory commands and internal policies in fulfilling its

obligations.” Garner, 529 U.S. at 256.

15

The district court mentioned three other cases. As to prisoner J. Kyne,

the district court discerned that “even under the most skeptical and

jaundiced eye, [Kyne] clearly presents new information and changed

circumstances that addressed his suitability for parole.” Two problems

emerge. First, Cal. Penal Code § 3041.5(d)(1) requires changed

circumstances or new information that establishes the likelihood of

suitability, not that they “address” such suitability. Second, the district

court was again erroneously second-guessing the Board’s decision, see

supra, arrogating to itself the “unfettered discretion” assigned to the Board

by law. Vicks, 295 P.3d at 882; see also Cooke, 562 U.S. at 220.

As to prisoners J. Ferioli and C. Chruniak, the district court

apparently thought that they deserved advance hearings because notations

in their PTA denials suggested that they were “doing well,” even though

the decisionmakers in those cases noted that they did not demonstrate

changed circumstances or new information sufficient to warrant an

advance hearing. If “doing well” since the last denial of parole were

GILMAN V. BROWN 25

Brodheim did not procure an advance hearing through the

PTA process. He obtained a hearing by successfully

petitioning the district court for a writ of habeas corpus; we

ultimately reversed the decision to grant the writ. While the

appeal of that decision was pending, the Board found

Brodheim suitable for parole but, after we reversed the

improperly granted writ, Brodheim was returned to the same

status as had obtained before the district court’s action. He

then filed a PTA, appending the transcript from the parole

hearing at which he was found suitable for parole, but his

PTA was summarily denied.

It may seem an abuse of discretion to have returned

Brodheim to non-parole status after a hearing had determined

him suitable for parole, even though that hearing was

undeserved. Indeed, Brodheim may have had a state-law

remedy, as Proposition 9 allows PTA denials to be

“review[ed] by a court or magistrate . . . for a manifest abuse

of discretion by the board.” Cal. Penal Code § 3041.5(d)(2).

However, we do not think it is possible to extrapolate from

this single, peculiar example a finding as to how the Board

handled PTAs from Gilman and other class members. The

district court’s inference, based solely on the Brodheim

example, that after Proposition 9, class members face

“incarceration indefinitely, unless the Board finds clear and

convincing evidence of (a) a change in circumstances or new

sufficient grounds to advance a hearing, only inmates misbehaving or not

progressing would be declined advance hearings. The “change in

circumstances” that would entitle murderers and other prisoners sentenced

to life imprisonment to an advance hearing must be “sufficiently

monumental” as to “alter their suitability for release on parole.” Morales,

514 U.S. at 512. Merely “doing well” does not rise to that level. And,

again, it is for the Board, not the district court, to determine whether the

requisite showing has been made to merit an advance hearing.

26 GILMAN V. BROWN

information, and separately, (b) suitability,” is thus

erroneous.

3. Decisions Passed to Next Panel

The district court found that there was a structural barrier

to relief through the PTA process because decisionmakers

denied a few PTAs without explaining whether there was a

reasonable likelihood that further incarceration was not

needed. According to the district court, this “tend[s] to show

that the [Board] viewed certain issues as categorically exempt

from the PTA process, and therefore could only be decided

by panels after the deferral period imposed by the last panel.”

Here, the district court assumed the Board was required

to determine whether an inmate was suitable for parole

whenever he filed a PTA because “that was the only question

[the decisionmaker] had to decide.” The district court did not

consider whether the PTAs it referenced satisfied the

statutory prerequisite: a “change in circumstances or new

information” regarding suitability. Cal. Penal Code

§ 3041.5(d)(1). Indeed, it summarily dismissed the Board’s

finding that the statutory prerequisite had not been met by

labeling the language the decisionmaker checked on the form

order denying the PTA as “boilerplate”:

Denied, after conducting a review of the case

factors and considering the new information

of change in circumstances, the prisoner did

not establish a reasonable likelihood that

consideration of the public and victim’s safety

does not require the additional incarceration.

GILMAN V. BROWN 27

That the Board may have decided to give additional reasons

for its decision in other portions of its form order does not

mean that the checked box’s language is inadequate to

establish that the Board made a decision on suitability, there

and then. It does not mean that the Board made no decision

as to the PTA by engaging in a “categorical exemption,” as

found by the district court in its claim that the Board had not

exercised its discretion.16

In the example of a “boilerplate” denial cited by the

district court, inmate T. Nguyen’s “reason for denial” was

first that he had not met the “change in circumstance or new

information” requirement regarding suitability, and then that,

not having met the requirement, the next regularly scheduled

panel could consider his parole-suitability factors. The district

court’s reading of Nguyen’s PTA denial was selective and

does not support the inference that requiring further findings

at the next scheduled hearing is evidence that there is a

“categorical exemption” structural barrier to PTA grants,

whereby the Board does not exercise its discretion to deny a

16

Notably, in a different context—habeas review of state convictions

and sentences—we are required to treat a summary denial of a

discretionary appeal as a decision on the merits and determine whether

there exist reasons that could have supported the decision. See Harrington

v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been

presented to a state court and the state court has denied relief, it may be

presumed that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to the

contrary.”). Although habeas jurisprudence has no direct application here,

our review of decisions by state parole authorities, like our review of state

convictions and sentences, is limited and recognizes that state actors have

wide latitude in their decisionmaking.

28 GILMAN V. BROWN

PTA, but simply passes the decision to the next regularly

scheduled hearing.17

4. Lack of Annual Comprehensive Risk Assessments

As to some inmates whose mental condition is a factor as

to their suitability for parole, a psychological report, the

CRA, is prepared only once every five years by State-

employed personnel. Since the CRA is prepared only every

five years, the district court found that a PTA would not be

granted where the inmate had a psychological component to

be evaluated to determine his suitability. It quoted Gilman’s

summation that “any prisoner who is denied parole in part

because of the CRA has no chance of obtaining an advanced

hearing.” This finding was in error for two reasons. First,

nothing prohibits a prisoner from procuring his own CRA

using private resources. Second, the State points out that a

CRA is not required for a PTA; the inmate-petitioner can

address whatever issues were in his previous CRA through a

personal statement to the Board, self-help programming, or

evidence other than a psychological report.

17

To the contrary, Nguyen’s PTA denial and the two others referenced

by the district court suggest that the decisionmaker reviewed the PTAs and

determined that the inmates were not suitable for parole in light of the

reasons given by the Board for denying parole at the prior hearing. Cf.

Morales, 514 U.S. at 507 (holding that a statutory change did not violate

the Ex Post Facto Clause when it “introduced the possibility that after the

initial parole hearing, the Board would not have to hold another hearing

the very next year, or the year after that, if it found no reasonable

probability that respondent would be deemed suitable for parole in the

interim period” and was passed “merely to relieve the Board from the

costly and time-consuming responsibility of scheduling parole hearings for

prisoners who have no reasonable chance of being released” (internal

quotation marks and brackets omitted)).

GILMAN V. BROWN 29

5. Lack of Translation Services

The district court found a structural defect in the PTA

process based on one inmate’s claim that, after his petition

with some Spanish language documents had passed an initial

review, full review was denied until the documents were

translated. However, the district court noted evidence that

prisoners who need translation services are given such

assistance with their PTAs. Rather than making a finding that

class members were denied translation services, the district

court found no facts to sustain its determination that

translation services are unavailable. Instead, the district court

ruled: “If in fact, no translation services are provided at the

PTA stage, then the PTA process is illusory for those

prisoners who communicate only in Spanish.” (Emphasis

added.) Quite obviously, unless a fact is found to exist, the

supposition that it might exist is not a basis for decision.

6. Conclusions as to the PTA Process

The district court committed legal error by basing its

findings principally on speculation and inference, rather than

concrete evidence demonstrating that the PTA process failed

to afford relief from the classwide risk of lengthened

incarceration posed by Proposition 9. It erred by substituting

its own judgment for the Board’s regarding which PTAs

ought to be granted. And the district court’s findings of

“structural problems” in the PTA process lack sufficient

support in the record. The remaining findings, viewed under

the correct legal standard, are insufficient to support a

conclusion that, on this record, an as-applied Ex Post Facto

Clause violation has occurred. We therefore reverse the

district court’s findings and injunction as to Proposition 9.

30 GILMAN V. BROWN

IV. Conclusion

For these reasons, we reverse the judgment of the district

court and order the district court to enter judgment for the

State of California.

REVERSED and REMANDED with instructions