Biggs v. Secretary of the California Department of Corrections & Rehabilitation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY J. BIGGS, No. 11-18021

Petitioner-Appellant,

D.C. No.

v. 2:07-cv-00470-

WBS-CKD

SECRETARY OF THE CALIFORNIA

DEPARTMENT OF CORRECTIONS AND

REHABILITATION, OPINION

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Senior District Judge, Presiding

Argued and Submitted

January 14, 2013—San Francisco, California

Filed May 29, 2013

Before: J. Clifford Wallace, Jerome Farris,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

2 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s dismissal of a

28 U.S.C. § 2254 habeas corpus petition challenging a 2006

decision by the Governor of California reversing a 2005

decision by the Board of Parole Hearings finding petitioner

suitable for parole.

After petitioner’s conviction, California amended its

constitution to give the Governor authority to review parole-

board decisions for prisoners convicted of murder. The

California Supreme Court upheld the constitutional

amendment in question, Cal. Const. art. V, § 8(b), against an

Ex Post Facto challenge. In re Rosenkrantz, 59 P.3d 174

(Cal. 2002). Petitioner contended that In re Rosenkrantz

unreasonably applied Garner v. Jones, 529 U.S. 244 (2000),

which involved a similar challenge to a Georgia state law.

The panel held that the state court’s decision was not an

unreasonable application of clearly established federal law.

COUNSEL

Ann C. McClintock (argued), Assistant Federal Defender, and

Daniel J. Broderick, Federal Defender, Office of the Federal

Defender, Sacramento, California, for Petitioner-Appellant.

*

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

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

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 3

Krista L. Pollard (argued), Deputy Attorney General, Kamala

D. Harris, Attorney General, Jennifer A. Neill, Senior

Assistant Attorney General, Jessica N. Blonien, Supervising

Deputy Attorney General, Office of the Attorney General,

Sacramento, California, for Respondents-Appellees.

OPINION

BYBEE, Circuit Judge:

After Jeffrey J. Biggs was convicted of murder and

sentenced to twenty-five years to life in prison with the

possibility of parole, California amended its constitution to

give the Governor authority to review parole-board decisions

for prisoners convicted of murder. Cal. Const. art. V, § 8(b).

The parole board subsequently found Biggs suitable for

parole, but then-Governor Arnold Schwarzenegger reversed

the parole board’s decision. Biggs claims that retroactive

application of the interim change to the California

Constitution violates the Ex Post Facto Clause of the U.S.

Constitution. U.S. Const. art I, § 10, cl. 1.

We previously analyzed the constitutionality of the

retroactive application of this same provision of the

California Constitution in Johnson v. Gomez, where we

upheld article V, § 8(b) against an Ex Post Facto Clause

challenge. 92 F.3d 964, 965–68 (9th Cir. 1996). After the

Supreme Court’s most recent decision in the area, Garner v.

Jones, 529 U.S. 244 (2000), the California Supreme Court

also upheld article V, § 8(b) against an Ex Post Facto Clause

challenge. In re Rosenkrantz, 59 P.3d 174, 191–201 (Cal.

2002).

4 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

Biggs claims that he is entitled to habeas relief because In

re Rosenkrantz unreasonably applied Garner in deciding that

retroactive application of article V, § 8(b) did not violate the

Ex Post Facto Clause of the U.S. Constitution, and the state

court relied exclusively on Rosenkrantz in denying Biggs’ Ex

Post Facto Clause claim. The district court denied Biggs’

habeas petition. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. We affirm.

I

In 1987, Biggs was convicted of murder and sentenced to

twenty-five years to life in prison with the possibility of

parole.1 In 1988, California passed Proposition 89, which

added section 8(b) to article V of the California Constitution,

providing the Governor with authority to review parole-board

decisions in any case in which the prisoner had been

convicted of murder. See Cal. Const. art. V, § 8(b) (“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. The Governor shall report to the

Legislature each parole decision affirmed, modified, or

1

A more detailed account of the facts of Biggs’ crime, his rehabilitation,

and some earlier proceedings can be found in our prior published opinion

regarding Biggs’ habeas proceedings. See Biggs v. Terhune, 334 F.3d

910, 912–13 (9th Cir. 2003), overruled in part by Hayward v. Marshall,

603 F.3d 546, 555 (9th Cir. 2010) (en banc).

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 5

reversed, stating the pertinent facts and reasons for the

action.”); see also Johnson, 92 F.3d at 965. In 2005, the

parole board determined that Biggs was suitable for parole.

Exercising the authority granted to him under article V,

section 8(b), then-Governor Schwarzenegger reversed the

parole board’s decision. Biggs unsuccessfully challenged the

Governor’s decision through state habeas proceedings. The

only state-court decision to address Biggs’ claim under the Ex

Post Facto Clause was the Superior Court’s decision, which

looked to the prior decision of the California Supreme Court

in Rosenkrantz:

The Rosenkrantz court considered at length

the question of whether the Governor’s review

and subsequent reversal of a grant of parole

violated the ex post facto clauses of the state

and federal Constitutions. The court

concluded that there was no ex post facto

violation. Accordingly, the petition is denied

as to the [ex post facto] claim.

Order of Denial at 7, No. SC-14199A (Cal. App. Dep’t Super.

Ct. Aug. 22, 2006) (internal citations omitted).

Biggs then filed the instant federal habeas petition. While

this federal habeas petition was pending, the parole board

again found Biggs suitable for parole, and this time the

Governor declined to review the parole board’s decision.

Biggs was released on parole in August 2010, but the district

court ruled that Biggs’ release did not render his habeas

6 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

petition moot.2 The district court denied habeas relief, and

Biggs timely appealed.

II

We review a district court’s decision to grant or deny a

state prisoner’s federal habeas petition de novo. Gill v. Ayers,

342 F.3d 911, 917 (9th Cir. 2003). Because Biggs filed his

federal habeas petition after April 24, 1996,3 the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) applies. Lindh v. Murphy, 521 U.S. 320, 322,

327 (1997). Under AEDPA, we may only grant habeas relief

if the adjudication of a claim on the merits in state court

resulted in a state-court decision that (1) was “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States,” or (2) was “based on an unreasonable

2

Biggs seeks credit against his term of parole for time he served in

prison due to the Governor’s reversal of the parole board’s 2005

determination that he was suitable for parole. Before the district court, he

asserted that the possibility of such relief militated against mootness.

Citing district-court opinions, the district court stated that whether the

possibility of such relief prevents a parolee’s habeas petition from being

moot depends on whether the term of parole is indeterminate. The district

court explained that parolees who committed their crimes prior to January

1, 1983 face determinate parole terms. On the other hand, parolees who

committed their crimes on or after January 1, 1983 are subject to a revised

version of California Penal Code § 3000.1, under which parolees serve

indeterminate parole terms unless they are released from parole. Because

Biggs committed his murder in September 1981 and his parole term is thus

determinate, the district court held that the possibility of providing relief

by crediting time against Biggs’ parole term prevents Biggs’ petition from

being moot. The State does not raise mootness on appeal, so we do not

consider it.

3

Biggs filed his federal habeas petition on September 20, 2006.

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 7

determination of the facts in light of the evidence presented

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

only challenges the state-court decision under the

“unreasonable application” clause of 28 U.S.C. § 2254(d).

Under the “unreasonable application” clause, we may

issue the writ “if the state court correctly identifies the

governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies it to the facts of the

particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002).

Even if we believe that the state court was incorrect in its

application of Supreme Court law, we may not grant the writ

unless the state court’s application of Supreme Court law was

objectively unreasonable. Id.; see also Harrington v. Richter,

131 S. Ct. 770, 785–86 (2011). This is true even if the

conclusion of the state court is inconsistent with, or even

disagrees with, our own decisions. “Because AEDPA limits

habeas relief to state decisions that offend clearly established

federal law as set by the Supreme Court, a state court decision

may not be overturned simply because of a conflict with

circuit law.” Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1172

(9th Cir. 2003) (internal quotation marks omitted); see also

Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (“[C]ircuit

precedent may [not] be used to refine or sharpen a general

principle of Supreme Court jurisprudence into a specific legal

rule that th[e] Court has not announced.”).

III

The Ex Post Facto Clause of the U.S. Constitution

prohibits the States from passing any “ex post facto Law.”

U.S. Const. art. I, § 10, cl. 1. “In Collins v. Youngblood, . . .

[the Supreme Court] reaffirmed that the Ex Post Facto Clause

incorporated ‘a term of art with an established meaning at the

8 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

time of the framing of the Constitution.’” Cal. Dep’t of Corr.

v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v.

Youngblood, 497 U.S. 37, 41 (1990)). In Collins, the Court

explained the original meaning of the Ex Post Facto Clause:

“Legislatures may not retroactively alter the definition of

crimes or increase the punishment for criminal acts.”

497 U.S. at 43. Since Collins was decided, the Court has

addressed the bounds of the prohibition on laws that

retroactively increase the punishment for criminal acts in two

cases related to increased periods between parole hearings:

(1) California Department of Corrections v. Morales, decided

in 1995, and (2) Garner v. Jones, decided in 2000. Biggs

points to these decisions in alleging that the state-court

decision in his case, and the California Supreme Court’s

decision in Rosenkrantz on which it relied, unreasonably

applied clearly established federal law.

A

Morales involved a challenge to the retroactive

application of a change in the California Penal Code that

authorized the parole board to increase the gap between

parole suitability hearings for individuals convicted of “more

than one offense which involves the taking of a life,” from

one year, as previously required, to as long as three years.

Morales, 514 U.S. at 503–04. To justify such an increase, the

parole board had to (1) find that it was not reasonable to

expect parole to be granted during the years with no hearings,

and (2) state its bases for that finding. Id. at 503.

Morales urged the Court to hold “that the Ex Post Facto

Clause forbids any legislative change that has any

conceivable risk of affecting a prisoner’s punishment,”

including the increase in the gap between parole hearings at

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 9

issue. Id. at 508. The Court rejected this approach, noting

that under such an approach “the judiciary would be charged

under the Ex Post Facto Clause with the micromanagement

of an endless array of legislative adjustments to parole and

sentencing procedures.” Id.

The Court asserted that it had “long held that the question

of what legislative adjustments will be held to be of sufficient

moment to transgress the [Ex Post Facto Clause] must be a

matter of ‘degree.’” Id. at 509 (internal quotation marks

omitted). In considering whether a change in law is

constitutional under the Ex Post Facto Clause, courts “must

determine whether [the change] produces a sufficient risk of

increasing the measure of punishment attached to the covered

crimes.” Id.

The Court declined to establish a bright-line rule,

asserting that the change at issue in Morales did not require

the Court to “articulate a single ‘formula’” for identifying

changes in law that produce a sufficient risk of increased

punishment, because the change at issue “create[d] only the

most speculative and attenuated possibility of producing the

prohibited effect of increasing the measure of punishment for

covered crimes, and such conjectural effects are insufficient

under any threshold [the Court] might establish.” Id.

The Court justified this determination by noting that the

change “applie[d] only to a class of prisoners for whom the

likelihood of release on parole is quite remote”—prisoners

convicted of multiple crimes involving the taking of a life, id.

at 510—and that the gap between hearings would only be

increased after the parole board held an initial hearing and

made the requisite findings to delay the next hearing, id. at

511. The Court also noted that, in the case of a prisoner who

10 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

experiences “an unanticipated change that is sufficiently

monumental to alter [the prisoner’s] suitability for release on

parole” after having the gap between hearings increased, the

prisoner might be able to seek an expedited hearing based on

that change. Id. at 512. Finally, the Court noted that actual

release dates often come several years after a finding of

suitability, and thus that the practical effect of the increased

gap between hearings was not significant. Id. at 513.

The Court held that because the change in law created

only “speculative and attenuated risk” of increased

punishment, retroactive application of the law did not violate

the Ex Post Facto Clause. Id. at 514. The Court in Morales

did not base its decision on how the change in law was

actually implemented or applied, but rather considered the

risk of increased punishment for prisoners based on a facial

analysis of the change in law.4

B

Garner also involved a challenge to the retroactive

application of a change in law permitting an extension of the

interval between parole hearings, this time in Georgia.

529 U.S. at 246. Under Georgia law, the parole board was

statutorily required to consider parole for inmates serving life

sentences first after seven years of incarceration; by rule, the

parole board had provided that it would reconsider parole

4

The Court did say that “[t]he California Supreme Court has noted that

about 90% of all prisoners are found unsuitable for parole at the initial

hearing, while 85% are found unsuitable at the second and subsequent

hearings,” Morales, 514 U.S. at 510–11, but these statistics were cited to

support analysis of the legislative intent of the change in law, not to

discuss how the change in law was implemented and the extent to which

the implementation resulted in a risk of increased punishment.

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 11

every three years thereafter. Id. at 247. After the prisoner in

Garner committed his crime, the parole board amended its

rules so that the gap between hearings after the initial hearing

could be as long as eight years. Id.

The prisoner was denied parole in 1995, and the parole

board scheduled the next hearing for 2003, consistent with the

change in its rules. Id. at 247–48. The prisoner brought an

action under the Ex Post Facto Clause, challenging the

retroactive application of the change in law. Id. at 248.

The Court acknowledged that the retroactive application

of certain laws governing parole could unconstitutionally

increase punishment under the Ex Post Facto Clause, id. at

249–50, but noted that Morales “emphasiz[ed] that not every

retroactive procedural change creating a risk of affecting an

inmate’s terms or conditions of confinement is prohibited,”

and that questions about such changes depend on the

“degree” of the risk. Id.

The Court reiterated Morales’s message that “the Ex Post

Facto Clause should not be employed for ‘the

micromanagement of an endless array of legislative

adjustments to parole and sentencing procedures.’” Id. at 252

(quoting Morales, 514 U.S. at 508). “The controlling inquiry

. . . [is] whether retroactive application of the change in . . .

law created ‘a sufficient risk of increasing the measure of

punishment attached to the covered crimes.’” Id. at 250

(quoting Morales, 514 U.S. at 509).

In conducting this risk-based inquiry, derived from

Morales, the Court stated that the change in law at issue had

to be considered in “the whole context of Georgia’s parole

system,” id. at 252, which provides the parole board with

12 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

broad discretion, id. at 252–53. The Court added that

“[w]hether retroactive application of a particular change in

parole law respects the prohibition on ex post facto legislation

is often a question of particular difficulty when the discretion

vested in a parole board is taken into account,” id. at 250,

even though this “discretion does not displace the protections

of the Ex Post Facto Clause,” id. at 253. “The essence of

respondent’s case,” according to the Court, “[was] not that

discretion has been changed in its exercise but that, in the

period between parole reviews, it will not be exercised at all.”

Id. at 254.

The Court, however, rejected this claim because (1) the

parole board maintained discretion as to how often to set

hearings—subsequent hearings would take place “at least

every eight years”; and (2) there were processes in place for

expedited reviews in cases of changed circumstances. Id.

(quoting Ga. Comp. R. & Regs. 473-3-.05(2) (1985)). Given

this continued discretion, the Court suggested that the risk of

increased punishment, at least facially, was not sufficient to

support a violation of the Ex Post Facto Clause. Id. at

254–55.

But the Court’s analysis did not end there. It went on:

When the rule 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 than under the earlier

rule. . . . In the case before [the Court],

respondent must show that as applied to his

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 13

own sentence the law created a significant risk

of increasing his punishment. This remains

the issue in the case, though the general

operation of the Georgia parole system may

produce relevant evidence and inform further

analysis on this point. . . .

The Court of Appeals’ analysis failed to

reveal whether the amendment . . . , in its

operation, created a significant risk of

increased punishment for respondent.

Respondent claims he has not been permitted

sufficient discovery to make this showing.

Id. at 255–57.

The Court stated that the “matter of adequate discovery”

was one for the lower courts, and accordingly remanded. Id.

at 257. The Court in Garner thus applied the risk-based test

from Morales, but did not stop with facial analysis as in

Morales. Instead, the Court asserted that prisoners could

demonstrate the significance of the risk of increased

punishment through evidence of the implementation of the

change in law, and that the prisoner was entitled to further

discovery to support such a demonstration. It is this Supreme

Court endorsement of an as-applied analysis of the

significance of the risk of increased punishment that Biggs

claims the state court unreasonably applied—or, really, failed

to apply—in his case.

IV

Where, as here, the state’s highest court does not issue a

reasoned decision, we must look to the last reasoned state-

14 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

court decision and then determine if that decision runs afoul

of 28 U.S.C. § 2254(d). Ylst v. Nunnemaker, 501 U.S. 797,

804–06 (1991). As discussed above, the only reasoned state-

court decision with regard to Biggs’ claim under the Ex Post

Facto Clause was the Superior Court’s decision,

which—understandably—relied exclusively on the California

Supreme Court’s decision in Rosenkrantz. Thus, we must

examine Rosenkrantz to determine whether the Superior

Court’s decision unreasonably applied clearly established

federal law.

In Rosenkrantz, the California Supreme Court was faced

with precisely the same question we face: whether retroactive

application of gubernatorial review under article V, § 8(b)

violates the Ex Post Facto Clause of the U.S. Constitution.

59 P.3d at 183. The Rosenkrantz court, analyzing Morales

and Garner, held that California’s scheme did not violate the

Ex Post Facto Clause. Id.

First, the court said that under the ordinary meaning of the

phrase “increased the punishment,” it could not be reasonably

said that the gubernatorial reversal violated the Ex Post Facto

Clause. Id. at 193. The court emphasized that the term of the

petitioner’s sentence was the same before and after the

implementation of review, and that the factors to be

considered in determining whether to grant parole were left

unchanged. Id. “The only change effected . . . is the

institution of an additional level of discretionary review of the

Board’s decision granting or denying parole, resulting merely

in a change in the identity of the entity or official within the

executive branch that may make the ultimate decision on

parole.” Id.

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 15

After pointing out that the Supreme Court had never held

a change in law comparable to the institution of gubernatorial

review of parole decisions to constitute “the type of measure

to which the ex post facto clause applies,” id. at 193–94, the

court explained that the petitioner’s claim had been “squarely

and uniformly rejected by each of the prior California and

federal decisions that have addressed the issue.” Id. at 194.

In support, the court cited our decision in Johnson v. Gomez,

and the California Court of Appeal’s decision in In re

Arafiles, 8 Cal. Rptr. 2d 492 (Ct. App. 1992). Rosenkrantz,

59 P.3d at 194–95.

Rosenkrantz asserted that these cases were inconsistent

with the Supreme Court’s ruling in Garner, which postdated

both decisions. Id. at 196. But the court rejected this

argument, stating that “Garner did not involve a legislative or

constitutional provision even remotely similar to article V,

section 8(b), and nothing in Garner questions either the

validity of the Arafiles and Johnson decisions themselves or

the high court decisions upon which [those decisions] relied.”

Id.

In distinguishing the Ex Post Facto Clause challenge in

Garner from Rosenkrantz’s challenge to the retroactive

application of gubernatorial review, the court emphasized that

in Garner the Supreme Court had “explain[ed] . . . [that t]he

essence of respondent’s case . . . [was] not that discretion

[relating to the grant of parole] has been changed in its

exercise but that, in the period between parole reviews,

[discretion] will not be exercised at all.” Id. at 198 (quoting

Garner, 529 U.S. at 254) (emphasis and internal quotation

marks omitted). Even in this limited situation—where

retroactive application of a change in law results in the parole

board not exercising its discretion at all for a time—the Court

16 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

in Garner rejected the facial Ex Post Facto Clause challenge.

See id. at 198–200 (citing Garner, 529 U.S. at 254–55). But,

the Rosenkrantz court acknowledged, the Court in Garner,

through the language at the end of its opinion, “left open the

possibility that the petitioner in that case could establish on

remand that the new policy permitting the significant

postponement of parole hearing dates should be treated as an

increase in punishment for purposes of the ex post facto

clause.” Id. at 198–99; see Garner, 529 U.S. at 255.

Based on the language at the end of the Garner opinion,

Rosenkrantz contended that “whether the application of

article V, section 8(b), in [his] case . . . violates the ex post

facto clause turns upon whether ‘application [of the

provision] will result in a longer period of incarceration than

under the earlier rule.’” Rosenkrantz, 59 P.3d at 199 (quoting

Garner, 529 U.S. at 255). The Rosenkrantz court said that

such a reading of Garner would mean that “article V, section

8(b)[ ] would violate the ex post facto clause in every case in

which the Governor reverses a Board decision granting

parole.” Id. Moreover, the court said, were Rosenkrantz’s

reading of Garner to be accepted, “virtually any procedural

change in the parole process . . . would fall within the

prohibition of the ex post facto clause in any instance in

which the procedural change resulted in the denial of parole,”

because “in any such case it could be said that application of

the new rule ‘will result in a longer period of incarceration

than under the earlier rule.’” Id. (quoting Garner, 529 U.S.

at 255).

This result, the Rosenkrantz court stated, demonstrates

that such a broad reading of Garner cannot be correct; nor is

it correct even to read Garner to apply to all procedural

changes in law that could affect the duration of prisoners’

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 17

imprisonment. Id. at 199–200. Rather, Garner’s concern

with the impact of a procedural rule in a particular case was

limited to changes of the sort at issue in Garner, and there

was good reason to distinguish that sort of change from the

change at issue in Rosenkrantz:

A revision [like those in Garner and Morales]

that significantly delays the date when the

relevant state authority considers the parole

eligibility of a prisoner is analogous to a

substantive provision increasing the minimum

period of time a defendant must be

imprisoned before parole even may be

considered. (As we have seen, the court in

Garner adverted to this point, explaining that

“[t]he essence of respondent’s case, as we see

it, is not that discretion has been changed in

its exercise but that, in the period between

parole reviews, it will not be exercised at

all.”).

Because a provision that reduces the

frequency of parole hearings is at least

potentially comparable to a provision that

increases the minimum term of a sentence, a

measure that extends the time between parole

hearings is one that reasonably might be

characterized as bringing about an increase in

sentence to which the ex post facto clause

might apply. . . . [T]he court in Garner

determined that when such a provision “does

not by its own terms” create a significant risk

that a prisoner’s sentence will be increased,

the prisoner may establish that application of

18 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

the provision will violate the ex post facto

clause, by demonstrating through “evidence

drawn from the rule’s practical

implementation . . . that [the rule’s]

retroactive application will result in a longer

period of incarceration than under the earlier

rule.” There is nothing in Garner, however,

suggesting that this standard was intended to

apply to a provision, unlike a measure

reducing the frequency of parole hearings,

that cannot reasonably be viewed as falling

within the category of legislative measures

that increase the punishment for a crime.

Id. (quoting Garner, 529 U.S. at 254–55).

The Rosenkrantz court went on to reiterate that “[t]he

only change made by article V, section 8(b), is the institution

of a new level of review of parole decisions.” Id. at 200.

“[T]he opinions of the United States Supreme Court make it

clear that this type of change in procedure is not the type of

change addressed by the ex post facto clause,” and Garner

does not question these decisions. Id.

One of the Supreme Court cases cited by the court in

support of this position—one of the cases the court said

Garner did not question—is Mallett v. North Carolina,

181 U.S. 589 (1901). In Mallet, two defendants convicted in

a state criminal trial had succeeded in having their

convictions overturned on appeal in favor of a new trial. Id.

at 590. At the time of the commission of the defendants’

offense and at the time of their trial, the State had no right to

appeal such a decision under state law, but by the time the

defendants won their appeal, the state law had changed, and

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 19

the State appealed the reversal and order for a new trial. Id.

The state supreme court sustained the State’s appeal,

remanding for execution of the original guilty verdict, id., and

the defendants appealed to the Supreme Court, arguing that

their rights had been violated under the Ex Post Facto Clause,

id. at 592. Citing to a line of cases that distinguished

“procedural” changes in law—to which the Ex Post Facto

Clause did not apply—from the changes in law to which the

Ex Post Facto Clause was applicable, the Supreme Court

rejected the defendants’ claim. Id. at 593–97. Though

Collins subsequently dismissed the notion that laws could be

ruled outside the purview of the Ex Post Facto Clause merely

because they had been labeled as “procedural” and overruled

certain prior Supreme Court cases that applied that type of

analysis, 497 U.S. at 45–52, Collins did not overrule Mallett

even though it identified Mallett as a case that applied the

type of analysis being dismissed, id. at 45.

The Rosenkrantz court described the Supreme Court’s

Mallett decision as holding that “the type of procedural

provision involved in that case—i.e., the addition of a new

level of review of a decision favorable to a criminal defendant

that could work to the defendant’s detriment . . . —was not

the type of procedural change that fell within the aegis of the

ex post facto clause.” Rosenkrantz, 59 P.3d at 194. Since the

Rosenkrantz court concluded that the change in question—

like the change in Mallett—was not the type of procedural

change addressed by the ex post facto clause, it asserted that

the nature of the implementation of gubernatorial review was

20 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

irrelevant, and Rosenkrantz’s Ex Post Facto Clause claim had

no merit. Id. at 200–01.5

V

Biggs essentially makes one argument: that it was an

unreasonable application of clearly established federal law for

the Rosenkrantz court to conclude that the introduction of

gubernatorial review of parole decisions was not the type of

change addressed by the Ex Post Facto Clause and thus not

the type of change to which the as-applied “significant risk”

test endorsed in Garner must be applied, and that it was

therefore an unreasonable application of clearly established

federal law for the state court in Biggs’ case to rely

exclusively on Rosenkrantz.6 We disagree.

5

The Rosenkrantz court noted at the outset that Rosenkrantz was not in

the best position to challenge gubernatorial review because the parole

board had, left to its own devices, concluded that Rosenkrantz was not

suitable for parole. 59 P.3d at 191. It was only after a California court

found that the parole board’s decision was not supported by evidence and

ordered the parole board to grant parole under the threat of contempt that

the parole board did so. Id. The court said: “Accordingly, from a realistic

perspective, petitioner cannot maintain persuasively that in this instance

article V, section 8(b), has resulted in the denial of parole of an individual

whom the Board, in the exercise of its independent judgment, has

determined is suitable for parole.” Id. The court’s decision on

Rosenkrantz’s Ex Post Facto Clause challenge, however, did not turn on

this unique factual circumstance. Immediately following the discussion

of Rosenkrantz’s unique circumstance, the court said that “[t]he flaw in

petitioner’s ex post facto claim . . . is not confined to the particular

circumstances of this case.” Id.

6

Biggs also argues that it was unreasonable for the Superior Court to

rely on the Rosenkrantz decision in his case because of factual differences

between the two cases. Particularly, Biggs argues that it was unreasonable

for the state court to rely on Rosenkrantz because, as discussed above, see

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 21

A

We are not writing on a blank slate. We previously held

in Johnson v. Gomez that article V, § 8(b) does not violate the

Ex Post Facto Clause. 92 F.3d at 967. In Johnson, we

reviewed relevant Supreme Court decisions on the Ex Post

Facto Clause, including Calder v. Bull, 3 U.S. (3 Dall.) 386

(1798); Mallett, 181 U.S. 589; Collins, 497 U.S. 37; and the

then-recent decision in Morales, 514 U.S. 499. 92 F.3d at

966–67. Johnson argued that the gubernatorial review

provision had “the purpose and effect of . . . lengthen[ing]

prison terms by making it more difficult for convicted

murderers with indeterminate sentences to be released on

parole.” Id. at 967. We rejected this argument. We observed

that “the law itself is neutral inasmuch as it gives the

governor power to either affirm or reverse a [parole board]’s

granting or denial of parole.” Id. The law “simply removes

the final parole decisionmaking authority from the [parole

board] and places it in the hands of the governor.” Id. This

change in California law, we concluded, could not be

“materially distinguish[ed]” from the change in law at issue

in Mallett. Id.; see also Rosenkrantz, 59 P.3d at 200 & n.9

(reaching a similar conclusion). We thus concluded that the

supra note 5, the parole board only found Rosenkrantz suitable for parole

after ordered to do so by the court, not based on its own independent

review. This argument is a non-starter. First, it is hard to construe this as

a cogent argument under 28 U.S.C. § 2254(d). The Superior Court surely

did not violate clearly established federal law by following a California

Supreme Court decision that was materially on all fours factually.

Second, the Rosenkrantz court specifically said its decision was not

limited to cases where the parole board had not found the prisoner suitable

for parole based on its own independent review, see supra note 5, so this

factual distinction does not raise questions about reliance on Rosenkrantz.

22 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

gubernatorial review process did not violate the Ex Post Facto

Clause. Johnson, 92 F.3d at 967.

We decided Johnson in the year AEDPA became

effective, and our decision was not constrained by AEDPA.

Our decision in Johnson was thus a straight-up decision on

the constitutionality of article V, § 8(b) under the Ex Post

Facto Clause. That makes it a far more powerful judgment

than if we had merely opined under AEDPA that the

California courts had not violated clearly established

Supreme Court precedent.

But it is also true that we decided Johnson before the

Supreme Court issued its decision in Garner. Under our law-

of-the-circuit rule, we are bound by Johnson unless it is

“clearly irreconcilable” with intervening Supreme Court

precedent. See Miller v. Gammie, 335 F.3d 889, 899–900

(9th Cir. 2003) (en banc). Accordingly, we must determine

whether our decision in Johnson is clearly irreconcilable with

Garner, and particularly with Garner’s apparent endorsement

of as-applied analysis.7 If so, we must “reject [Johnson] as

7

In Johnson, in addition to the arguments discussed above, we

suggested that there was no Ex Post Facto Clause violation because (1) it

could not be said “with certainty” that Johnson’s sentence was increased

by the gubernatorial reversal; and (2) Johnson was unable to demonstrate

that an increase in punishment “actually occurred.” 92 F.3d at 967. This

language might be read to suggest that more certainty was required than

the “sufficient” or “significant” risk contemplated in Garner. Garner,

529 U.S. at 250, 255–57. But we cannot say that Johnson is “clearly

irreconcilable” with Garner on this basis given that Garner did not alter

the level of certainty required by Morales, see 514 U.S. at 509; see also

Himes v. Thompson, 336 F.3d 848, 855 n.4 (9th Cir. 2003) (analyzing an

AEDPA-governed Ex Post Facto Clause claim under Morales, but noting

that “our analysis is also consistent with Garner v. Jones”), and that the

Johnson court was interpreting Morales. Unless we believe Johnson is

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 23

having been effectively overruled;” if not, we are bound by

Johnson. Id. at 900.

Nothing in Garner signals that it is a change in the

Court’s approach. It does not overrule or even question any

prior Ex Post Facto Clause decisions, and it cites extensively

to Morales. See Himes, 336 F.3d at 855 n.4. Quoting

Morales, Garner emphasized that “the Ex Post Facto Clause

should not be employed for ‘the micromanagement of an

endless array of legislative adjustments to parole and

sentencing procedures.’” 529 U.S. at 252 (quoting Morales,

514 U.S. at 508). The Court declared that this remained an

“important concern[ ].” Id.

On its face, the language in Garner regarding the as-

applied inquiry tells us nothing about the scope of its

applicability. Garner certainly does not say that this as-

applied analysis must be conducted even with regard to

changes in law that have historically been considered outside

the reach of the Ex Post Facto Clause. See Rosenkrantz,

59 P.3d at 198–201 (discussing Garner). As Rosenkrantz

cogently explained, the Supreme Court’s 1901 decision in

Mallett is still good law—in fact, it was explicitly considered

by the Court in Collins but left undisturbed while other cases

were overruled—and Mallett strongly suggests that the type

of change in law at issue here cannot yield cognizable Ex

Post Facto Clause claims. Id. at 200 & n.9; see also id. at

194. To the extent the Garner opinion includes language that

can be interpreted as being relevant to the scope of

applicability of the as-applied requirement, that language

otherwise clearly irreconcilable with Garner, which, as we explain later

in this Section V.A, we do not, we cannot, as a three-judge panel, decide

that Johnson misinterpreted Morales.

24 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

suggests a limited scope. Particularly, the Court asserted that

“[t]he essence of respondent’s case . . . [was] not that

discretion has been changed in its exercise but that, in the

period between parole reviews, it will not be exercised at all.”

Garner, 529 U.S. at 254. The Rosenkrantz court’s reading of

this statement as indicative of the Court drawing a line

between changes in law that are “potentially comparable to a

provision that increases the minimum term of a sentence” and

changes in law that are not comparable to such a provision is

quite reasonable. See Rosenkrantz, 59 P.3d at 200.

Biggs can only point to the Court’s suggestion in Garner

that “[w]hen the rule does not by its own terms show a

significant risk, the [petitioner] 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 than under the earlier rule.” 529 U.S. at 255.

But, as discussed above, the scope of applicability of this

suggestion is entirely unclear. Other than this suggestion,

Garner was just following Morales. Johnson, which applied

Morales, is thus not “clearly irreconcilable” with Garner on

account of our failure in Johnson to conduct as-applied

analysis. See Miller, 335 F.3d at 900. Johnson remains good

law.

B

Even though Johnson remains good law, we could

potentially be bound to hold that Garner clearly established

a requirement of as-applied analysis in a case like Biggs’ case

if a prior decision by a panel of our court had so held.

Though our panel opinions do not themselves constitute

“clearly established Federal law” for AEDPA purposes, we

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 25

would be bound to respect a panel holding that the

requirement of as-applied analysis is clearly established

Supreme Court law in a given context, just like we would be

bound to respect any other panel holding. See Rodgers,

133 S. Ct. at 1450 (asserting that, for purposes of determining

the extent of “clearly established Federal law,” “an appellate

panel may, in accordance with its usual law-of-the-circuit

procedures, look to circuit precedent to ascertain whether it

has already held that the particular point in issue is clearly

established by Supreme Court precedent”); Chambers v.

McDaniel, 549 F.3d 1191, 1199 (9th Cir. 2008); see also

Miller, 335 F.3d at 899–900. We cannot elevate our own

precedent “to refine or sharpen a general principle of

Supreme Court jurisprudence into a specific legal rule that

th[e] Court has not announced,” Rodgers, 133 S. Ct. at 1450,

but we would owe deference to a clear on-point holding that

as-applied analysis is required under clearly established

federal law in this context.

We have discussed Garner’s requirement of as-applied

analysis in various contexts, including, most notably, in two

AEDPA-governed habeas cases where we granted habeas

relief based on the petitioners’ Ex Post Facto Clause

challenges to the retroactive application of changes to

Oregon’s parole system.

In Himes v. Thompson, we considered an AEDPA-

governed habeas challenge to the retroactive application of

two changes to Oregon’s parole regulations: (1) a change in

the list of factors to be considered in deciding whether there

was “aggravation” such that rerelease should be denied after

a prior revocation of parole, and (2) a change in the possible

reincarceration periods resulting from a denial of rerelease

based on an “aggravation” finding. 336 F.3d at 855–64. We

26 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

held that retroactive application of these two changes, taken

together, created a sufficient risk of increased punishment

that the state court’s decision that there was no Ex Post Facto

Clause violation was an unreasonable application of clearly

established Supreme Court law, and accordingly we granted

the habeas petition. Id. at 863–64. Our analysis, however,

was explicitly facial in nature. Id. at 855 n.5 (“Because we

hold that the risk of increased punishment is facially

apparent, we do not consider [an as-applied claim].”).

Moreover, we specifically said that, though our opinion was

“consistent with Garner,” we were not applying Garner

because “[p]re-Garner principles . . . compel[led] the

resolution of th[e] case.” Id. at 855 n.4.

In Brown v. Palmateer, we considered an AEDPA-

governed habeas challenge to the retroactive application of a

change to an Oregon statute that altered the method and

standard for the parole board’s consideration of postponing a

prisoner’s parole date based on psychological issues.

379 F.3d 1089, 1094–96 (9th Cir. 2004). In discussing the

“significant risk” test established by Morales, we said that

“[t]he Supreme Court teaches us to examine the retroactive

statute both on its face and in real-world practice,” citing the

language at the end of the Garner opinion. Id. at 1095 (citing

Garner, 529 U.S. at 255). We added that “[w]e ha[d]

previously stated that in the absence of a disadvantage that

affects prisoners in general, ‘an individual will satisfy the

detriment requirement if he shows that it can ‘be said with

assurance’ that he would have received less severe

punishment under the prior scheme,’” quoting our decision in

Nulph v. Faatz, which predates both Morales and Garner. Id.

(quoting Nulph v. Faatz, 27 F.3d 451, 456 (9th Cir. 1994)).

We then held that the change in law facially violated the Ex

Post Facto Clause. Id. (“When compared in toto with the pre-

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 27

1993 version of § 144.125(3), the post-1993 statute creates a

significant risk that prisoners will face longer periods of

incarceration. . . . The new standard gives the Board

the discretion to find that a prisoner is a danger to the

community despite the contrary conclusions of a

psychological/psychiatric evaluation. This creates a

‘sufficient risk’ of increased punishment to constitute

violation of the Ex Post Facto Clause.”). Applying Nulph, we

added that “[h]ad the Board applied the pre-1993 version of

the statute, . . . [i]t can ‘be said with assurance’ that Brown

would have had a shorter period of incarceration.” Id.

(quoting Nulph, 27 F.3d at 456) (internal quotation marks

omitted).

Though we discussed Garner in granting habeas petitions

in AEDPA-governed cases in Himes and Brown, in neither

case did we hold that the as-applied analysis endorsed in

Garner is required under clearly established law in a context

like Biggs’ case. First, we did not even hold that Garner’s

as-applied analysis was required under clearly established law

for changes in law like the changes at issue in Himes and

Brown. In Himes, our analysis was facial in nature and we

specifically asserted that we were not applying Garner.

336 F.3d at 855 nn.4–5. In Brown, though we said that the

Supreme Court teaches us to consider the “significant risk”

test both “on its face and in real-world practice,” we only

considered that test facially. 379 F.3d at 1095. We added

that it could “be said with assurance” that Brown would have

had a shorter period of incarceration under the prior version

of the statute, but in making this statement about the as-

applied impact of the retroactive application of the new

version of the statute, we were applying Nulph, not the

“significant risk” test. See id. Second, even if we had held

that Garner’s as-applied analysis was required under clearly

28 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

established law for changes in law like the changes at issue in

Himes and Brown, that would not be binding here, given the

nature of the change in law at issue. The change in law at

issue here, unlike the changes at issue in Himes and Brown,

is a purely procedural change to the manner in which parole

decisions are made. Moreover, the change in law at issue

here implicates Mallett; the changes at issue in Himes and

Brown did not. A holding that as-applied analysis is required

under clearly established federal law for a change in law like

the change at issue in Himes or Brown, if such a holding

existed, could be—and should be—distinguished with regard

to the change in law at issue here.

Other cases where we have discussed Garner fall short of

holding that as-applied analysis is required under clearly

established federal law, in Biggs’ case or otherwise. In Scott

v. Baldwin, a habeas challenge was brought concerning the

retroactive application of a change in Oregon law that

resulted in fewer parole-board reviews for inmates labeled as

dangerous offenders. 225 F.3d 1020, 1021–23 (9th Cir.

2000). The case was not governed by AEDPA. See id. We

noted the Supreme Court’s endorsement of as-applied

analysis in Garner, but stated that “Scott’s argument is

limited to a facial challenge of the rule,” and thus that “any

argument that the practical implementation of the rule

disadvantages Scott is not before us.” Id. 1022 at n.5.

Because Scott was not governed by AEDPA, our discussion

of Garner’s endorsement of as-applied analysis could not

amount to a conclusion that such analysis is required under

clearly established federal law under 28 U.S.C. § 2254(d)(1).

Moreover, any such conclusion would be dicta given that no

as-applied challenge was before us. Further, even if there

were a holding that as-applied analysis is required under

clearly established federal law, we would not be bound by

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 29

such a holding here given the different context, as discussed

above in regard to Himes and Brown.

In Moor v. Palmer, we rejected, under AEDPA, an Ex

Post Facto Clause challenge to the retroactive application of

a law broadening the requirement of psychological review as

a precondition for parole. 603 F.3d 658, 662–66 (9th Cir.

2010). After concluding that Moor had failed to demonstrate

a facial Ex Post Facto Clause violation, we noted Garner’s

endorsement of as-applied analysis. Id. at 666. We asserted,

however, that “Moor expressly argue[d] that further

factfinding [wa]s unnecessary, choosing to rest his ex post

facto claim on a facial challenge to the statute.” Id. Even if

we were to construe Moor as asserting that Garner clearly

established a requirement of as-applied analysis in some

cases, we would not be bound here because, as in Scott: (1)

that assertion would be dicta given that no as-applied

challenge was before us, and (2) even if it were a holding, we

would not be bound by that holding given the different

context.

Finally, in Gilman v. Schwarzenegger, we said that the

plaintiffs could succeed on their Ex Post Facto Clause claim

through an evidentiary demonstration that retroactive

application of the change in law in question would result in

increased incarceration time, citing Garner. 638 F.3d 1101,

1106 (9th Cir. 2011). But Gilman was a § 1983 case, id. at

1105, and thus contained no holding about clearly established

federal law.

Thus, because none of our cases discussing Garner hold

that as-applied analysis is required by clearly established

federal law, we have no reason not to follow Johnson.

30 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.

C

Our Johnson decision undermines Biggs’ argument that

Rosenkrantz, and thus the Superior Court’s opinion in his

case, unreasonably applied clearly established federal law.

As we have noted, under AEDPA, a bare conflict between a

state-court decision and our precedent does not mean that the

state-court decision is an unreasonable application of clearly

established federal law; a state-court decision does not have

to yield to our decision unless our decision itself rests on

clearly established Supreme Court precedent. See Rodgers,

133 S. Ct. at 1450–51. But when a state court decision is

consistent with our precedent, our precedent must be taken as

persuasive evidence that the state-court decision is correct;

more importantly, when a state court’s application of

Supreme Court law is the same as our application, our

precedent must be accepted as conclusive proof that the state-

court decision is not an “unreasonable application of[ ]

clearly established Federal law, as determined by the

Supreme Court,” 28 U.S.C. § 2254(d)(1), unless we are

prepared to “reject [our precedent] as having been effectively

overruled.” Miller, 335 F.3d at 900. As discussed above, we

see no reason to reject or not follow Johnson, so we cannot

conclude that the state court here unreasonably applied

Supreme Court law in coming to the same conclusion we

reached in Johnson for materially congruent reasons.

Moreover, even if we were not bound by Johnson, for

largely the same reasons that Johnson is not clearly

irreconcilable with Garner, Rosenkrantz is not an

unreasonable application of clearly established federal law

under Garner. The lack of clarity in Garner itself pervades

both inquiries. Garner tells us nothing about the scope of the

applicability of any requirement of as-applied analysis, so,

BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 31

just as we could not say that Johnson is clearly irreconcilable

with Garner, we cannot say that the state court unreasonably

applied Garner in Biggs’ case.

It is true that “the lack of a Supreme Court decision on

nearly identical facts does not by itself mean that there is no

clearly established federal law,” Rodgers, 133 S. Ct. at 1449

(citing Yarborough v. Alvardo, 541 U.S. 652, 664 (2004)), but

there is more than a mere factual distinction here. Mallett is

implicated here where it was not in Garner; and, as the

Rosenkrantz court reasonably asserted, the change in law at

issue here is distinguishable from the changes in law at issue

in Garner and Morales and indistinguishable from the change

at issue in Mallett. Whether or not the language in Garner

can be interpreted as broadly requiring as-applied analysis or

not, there is no question that it can reasonably be interpreted

as requiring no such analysis in the present case. Thus, even

in the absence of Johnson, we would find no AEDPA

violation here.

VI

The Supreme Court did not clearly establish in Garner

that an as-applied analysis of the significance of the risk of

increased punishment is required with regard to the

retroactive application of a change in law like California’s

gubernatorial review of parole board decisions. The

California Supreme Court’s decision in Rosenkrantz was thus

not an unreasonable application of clearly established federal

law, and neither was the Superior Court’s decision in Biggs’

case that relied on it.

AFFIRMED.