# Opposition Brief — Kernan v. Hinojas, 136 S. Ct. 1603 (2016) (No. 15-833)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0645%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2016

## Text

SRIGINAL @ (===

No. 15-833 OFFICE OF THE CLERK

IN THE
Supreme Court of the United States

JEFFREY BEARD, SECRETARY, CALIFORNIA DEPARTMENT
OF CORRECTIONS AND REHABILITATION,

Petitioner,
Vv.
ANTONIO A. HINOJOSA,

Respondent

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

MOTION FOR LEAVE TO PROCEED JN FORMA PAUPERIS

HILARY POTASHNER

Federal Public Defender

Gia Kim*

Deputy Federal Public Defender
321 East 2nd Street

Los Angeles, California 90012-4202
Telephone: (213) 894-4408
Facsimile: (213) 894-0081
Gia_Kim@fd.org

Attorneys for Respondent
* Counsel of Record Law Libewy

Respondent, by his undersigned counsel, asks leave to file the attached Brief
for Respondent in Opposition without prepayment of costs and to proceed in forma
pauperis. Respondent was represented by counsel in the Ninth Circuit under the
Criminal Justice Act, 18 U.S.C. § 3006A(b).

This motion is brought pursuant to Rule 39.1 of the Rules of the Supreme

Court of the United States.

Respectfully submitted,

HILARY POTASHNER
Federal Public Defender

DATED: February 29, 2016 By: LP Low
GIA KIyf*

Deputy Federal Public Defender

Attorneys for Respondent
*Counsel of Record

No. 15-833

IN THE
Supreme Court of the United States

JEFFREY BEARD, SECRETARY, CALIFORNIA DEPARTMENT
OF CORRECTIONS AND REHABILITATION,

Petitioner,
Vv.

ANTONIC A. HINOJOSA

Respondent

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

HILARY POTASHNER

Federal Public Defender

G1 KImM*

Deputy Federal Public Defender
321 East 2nd Street

Los Angeles, California 90012-4202
Telephone: (213) 894-4408
Facsimile: (213) 894-0081
Gia_Kim@fd.org

Attorneys for Respondent
* Counsel of Record

QUESTIONS PRESENTED

1. Whether the court of appeals correctly concluded that Yis¢s “look through”
presumption applies when the state court record includes at least one
reasoned decision, and that the State failed to adduce sufficient evidence to
rebut the presumption in this case.

2. Whether the court of appeals correctly concluded that the statutory
elimination of custody credits upon validation as a prison gang member or
associate violated the Ex Post Facto Clause, when Respondent committed his
offense of conviction and was validated as a prison gang associate before the
amendment was enacted.

TABLE OF CONTENTS

Page(s)
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I alana Oe eae a tae se al iv
SRE SEE ECE R eae A EEL RTE ON SIM SNE 1
RE eee Pree AM CC Pie BURTON I 2
I. AE ELE 2
II. 2009 GANG VALIDATION AND PLACEMENT IN THE SECURITY
ig EIR TS AER PER POcaC OR re ON Ot TE 2
III. 2010 AMENDMENT TO CALIFORNIA PENAL CODE § 2933.6 ....0...00.00000.... 4
eR TE A EE mT Aa Ne 5
V FEDERAL HABEAS PROCEEDINGG..................ccccccssccccssscsssccccsssercccossscceseeeses 8
REASONS FOR DENYING THE PETITION................ccccccccccccsscssescecssceseecessceseceescees 12
L. THE COURT OF APPEALS’ NARROW AND CORRECT DECISION
DOES NOT WARRANT THIS COURT'S REVIEW. ...0...........cccccccececceceseceeeeeee 12
A. Petitioner's Request For Error Correction Misconstrues This
Court’s Precedents And Califormia Law. ..................0ccccccccsseessesecseveeeeees 12
B. Petitioner Did Not Press His Yist Argument In The Court Of
RE TE SA SEA nce SE NEC Cee eo ER ee Ue RE 18
C. This Case Is A Poor Vehicle For Resolving The Yist Issue Because
Be ee I III, acciecsnacecsrvssusoccossenccceceseccenevesscsssovsenss 20
ll. THERE IS NO SERIOUS CONFLICT ON THE EX POST FACTO
ISSUE, AND THE ISSUE RECURS INFREQUENTLY.............0....00000c0000000+. 23
A. Any Split In The Federal Courts Of Appeal Is Shallow, Factbound,
REI OE TRA EEE oo 8 COREE ISR SIE eae SS REED Ae ee 23
B. There Is No Real-World Conflict With The California Supreme
SSTIIID ‘scars diinasieapsigiatuienpcinlilesenienadscoettieiastidedll cicada Miata ind atari nettica 28

TABLE OF CONTENTS

Page(s)

lil. PETITIONER OVERSTATES THE DECISION’S IMPACT ON PRISON

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RSE EE ne RR ee REN an Fe Nad ne 39
APPENDIX

Appellant’s Opening Brief [Excerpts], Hinojosa v. Davey, 803 F.3d 412

es ry: SIE sence ceccnicisninctensstivattinccionitaintiinsbaialieenstinimaediinainisiiin la

Respondent-Appellee’s Brief [Excerpts], Hinojosa v. Davey, 803 F.3d 412
Rs SIE, MI IIIIIIED ocncccsncdassesstitinicunasbtcetusidlanioassnctodanrvacantocsssccusasduchecll 9a

TABLE OF AUTHORITIES

Page(s)

Federal Cases
Abed v. Armstrong,

Sl ceeapalipbebbmaiibinaidiadaiaedadiadbendens 24, 25, 26
Appel v. Horn,

I, SIE spnadbuedndlbniinscemenousecanemiaemasicicmetintcemediiictnectaas: 21
Ashker v. Governor of the State of California,

a ED WU IY ic ins <isccvsscesnoescousdniccecconnsvavecvecdoncustcisanscosunidesiasansans 37
Brumfteld v. Cain,

ERT Ea aR PO RN I ERs OEM LE rE 12
California Department of Corrections v. Morales,

PRC EES ARS SSIES ee Oe Dee ea oe 11
Carey v. Saffold,

ERR eRe ei ae OL ean LR Coe Pape TNE OE eee By 16
Cullen v. Pinholster,

AE EE REET ESE EEE eee ARN SOR LRT MSIE 19
Davis v. Sec’y for Dep't. of Corr.,

I a a a 21
Ewell v. Murray,

EERIE eRe eed Sen Deen eee 25, 26, 27, 28
Garcia v. Barnes,

I, a a ae 32
Gaston v. Taylor,

IEEE ee oe: AD POR ney NS 25
Greenfield v. Scafati,

I, SIR, UDI esas ennsibtiogeeldstennsasliccndbosaniulionddasskiiisidaues 10, 22
Harrington v. Richter,

I a sccsessnensb valeoeindaetbicealasiitimhaldesitiansiD 9, 13
Heck v. Humphrey,

SEAR EI OIE OS AE LEIA) SE TION ee TEER Ba eRe eS 33

iV

TABLE OF AUTHORITIES

Page(s)

Henderson v. Cockrell,

I GEE TE SE TIED Dee PL SE OOD NA ROUTE SOL SCTE SSD 93 21
Hittson v. Chatman,

Nene ee hig dcuiedia dee 13
Johnson v. United States,

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Johnson v. Williams,

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Jones v. Murray,

I EIA RE I EO AL ED I OOS 25
Leal v. Ducart,

Oi rere, UR COs Cin: GIG nasi cssc ccc em sevassncecncivcsicenoresivevoecsoteseesordosesessieans 32
Lynce v. Mathis,

I 6, 9, 30
Nevarez v. Barnes,

SEES Se aE a OT Le UN 8, 32
Porras v. Biter,

I a 32
Preiser v. Rodriguez,

I ES OT Oe OO DCS STE scaaideithacdeshiedeiinidtmtoaniizadasiahetakesid 33
Price v. Warden,

I 22
United States v. Knights,

I Oe a 32
United States v. Paskow,

I 9,10
United States v. United Foods, Inc.,

SER, SS RO EA Es A Meee RI Pr SPT 18

TABLE OF AUTHORITIES

Page(s)

Weaver v. Graham,

Inns alaesini can noel anni iichpcadeeinasaneiies aiettisleecanasanatl 6, 9, 10
Yist v. Nunnemaker,

i eck cat ta dica nseemeadiannanaieeeaesemiuen 9, 14, 15, 20
State Cases
Griggs v. Superior Court,

a sa aamesamaiiganeeuadiabea aha sbi aided wales hauadocness 7
In re Lomax,

66 Cal. App. 4th 639 (Cal. Ct. App. 1998) ..........0....-cceceseccececessesecececeeeevece 29, 30, 31
In re Mikhail,

rs es Gs I Gk, Oe, Bre, Bion nccccentecscesosccnsscsnsncascsececcecccccecsesovecsosacesee 30
In re Ramirez,

I Us habetpdbnetbebuistnanlebabaeinioniaaemantiienens 28, 29, 31, 36
In re Reno,

I I saa tect dapinnleee didibaninbanniaiiniiedsiuaiiandaie 13, 14
In re Roberts,

a. sath ntieimanuanindedeacmunadinnmmascmenaiadt 17
In re Steele,

SEI ECCS ARIE NS orn a SsuD. Se CORES 17
People v. Callejas,

EERE RE ne a DME a eEPRY Ee BNP E SS a EE sl aoe TEED 29
People v. Callejas,

ET Et a oe 29
People v. Castenada,

IS napunpeguathidueacdabaaniaiisaiinasammnenceniabeatns 27
People v. Massie,

ETE ee a ae TOM RT PISO COS ea ENTS I oe eer TO 14
People v. Superior Court (Jimenez),

ES ae SER SO a Or oie REO LACE ROC Ds ER IR P SEES 17

vi

TABLE OF AUTHORITIES

Page(s)
Federal Constitution and Statutes
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cai cae ca eneniislioadiameniae oeeedlidiimetoenininienieimenanidaes 16
a 2 ee ee oe ee 8, 32
INET ITT onic laa inde ttncah eet deshesibbielcibaceiiiabalaaiheiadlinpaantiaieial 33
Ex Post Facto Clause, U.S. Const. art. I, § 10, ch. Doo... oo... ccceecceeeeeeeeeeeeecenereeees passim
State Statutes and Regulations
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Cal. Code Regs. tit. 15, § 3378.1 (2010)... ecccccceccececeseeeseeseeesesseesesseeseeseeseecarceseeeee 4
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ee suusabiguentnauneidieasuatasinusstesaommeabanionemcanasendaiien 27, 31
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ITT ITI es incccnchssi cen ipsentscmsinpnndioeaiboentecenadpendionsimmnndendlegnueaiuidadadnennie 14
I aL dle ss eeeinnaienindiegitubapnslapenmnbehaais 29, 30
I passim
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Vii

TABLE OF AUTHORITIES

Page(s)

I OE 6a eceeblsn dein innipapieneeliatedaideniendedieistabeenataaietenismmmaiebadtidl 35
Sarre renner __essonolpssianeinisinesneseiesndnaintunesnmpdieodssesenesieasanandaddinas 35
a slseiesiosenieeslieeunsihadcliatuesesaahanelassuamabensedeseadeia 34
Cal. Penal Code § 4600 .......... sstsseieislcaacienadiacsctapuiseisaasedaaedsaananaentiiend: ekeniionsaaiaammicaasedioumael 35
Miscellaneous
6 B. Witkin & N. Epstein, California Criminal Law, Criminal Writs

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California Department of Corrections and Rehabilitation, Security

Threat Group (STG) Information, http://www.cder.ca.gov/8tg/ ..........cccccccceeeseeeees 2

Vili

INTRODUCTION

Faithfully applying this Court’s longstanding precedent in Yist v.
Nunnemaker, the court of appeals properly looked through the California Supreme
Court’s and California Court of Appeal’s unexplained denials of habeas relief to the
last reasoned opinion, that of the California Superior Court. There it found a
procedural decision, not a decision on the merits, and accordingly declined to apply
the deferential standards of the Antiterrorism and Effective Death Penalty Act of
1996 (‘AEDPA”). Petitioner does not dispute that, as a general matter, Ylst
remains good law. Instead, Petitioner quibbles with the court of appeals’
application of Yisfs correctly stated rule. The court of appeals did not err. But
even if it did, a case-specific exercise in error correction does not merit this Court’s
review, particularly when that analysis turns on details of California habeas
procedure that Petitioner never brought to the court of appeals’ attention.

The decision does not squarely conflict with other circuits’ factbound
applications of the Ex Post Facto Clause to changes to different custody credit laws
in different states, and the issue arises only rarely. In light of intervening case law,
it is unclear whether the California Supreme Court would extend its 1985 decision
in Ja re Ramirez to amended Section 2933.6. Any conflict with Ramirez will, in any
event, have little to no practical impact on prison management, civil liability, or the
release date of other prisoners. And, given California's ongoing legislative and
administrative efforts to dismantle the segregated housing and credit-earning
schemes at issue here, the court of appeals’ decision is likely to have limited

prospective significance. This Court’s intervention is not warranted.

STATEMENT OF THE CASE
I. 2003 CONVICTION AND SENTENCE
On July 17, 2003, Respondent Antonio Hinojosa pleaded guilty in the

Superior Court of California, County of Orange, to first-degree robbery, with a
firearm enhancement, and participation in criminal street gang activity, and was

sentenced to sixteen years in state prison. (ER 289-292.)

II. 2009 GANG VALIDATION AND PLACEMENT IN THE SECURITY
HOUSING UNIT (“SHU”)

The Security Housing Unit, or SHU, is one of the special housing units in
California prisons “designated for extended term programming of inmates not
suited for general population.” Cal. Code Regs. tit. 15, § 3341.5 (2010).' An inmate
found guilty of a “serious” offense may be placed in the SHU for a determinate term.
Id. § 3341.5(c)(2)(B)(1) (2010). Pursuant to regulation, however, a validated prison
gang member or associate “is deemed to be a severe threat to the safety of others or
the security of the institution and will be placed in a SHU for an indeterminate
term.” Jd. § 3341.5(c)(2)(A)(2) (2010) (emphasis added).

Hinojosa was validated as a prison gang associate on April 20, 2009. (ER

304.) California regulations define an “associate” as someone who, “based on

1 Hinojosa filed his federal habeas petition on June 15, 2012. (ER 262.) Since then, the
California regulations dealing with gang validation and SHU placement have been renumbered,
relocated, and substantively amended. See California Department of Corrections and Rehabilitation,
Security Threat Group (STG) Information, http://www.cdcr.ca.gov/stg/ (last visited Feb. 26, 2016)
(“Since 2012, CDCR has implemented significant reforms to the way it manages (Security Threat
Groups] and validates inmates in the Security Housing Unit (SHU). CDCR’s reforms have
lessened its reliance on segregated housing for managing validated inmates.”). The procedures and
terminology set forth here reflect the regulations in place on January 25, 2010, the date amended
Section 2933.6 went into effect.

documented evidence, is involved periodically or regularly” with gang associates or
members; a “member” is defined as an inmate who has been “accepted into
membership” by a gang. Cal. Code Regs. tit. 15, §§ 3378(c)(3), (c)(4) (2010).2 The
evidence underlying Hinojosa’s violation consisted of the following items: (1) a
reference to Hinojosa’s alleged gang moniker in correspondence between a validated
Mexican associate and a third party who was not in prison, and Hinojosa’s
possession of an envelope bearing the name and address of that third party;

(2) Hinojosa’s address book, which contained the name and inmate number of a
validated gang associate; (3) a birthday card bearing a Mexican Mafia symbol; and
(4) photographs of Hinojosa’s allegedly gang-related tattoos, which were taken on
July 25, 2008. (ER 304, 411-422.) The envelope, address book, and birthday card
were found during a search of Hinojosa’s cell on February 26, 2009. (ER 414, 420,
422.) Asa result of his validation, Hinojosa was transferred to the SHU at
California State Prison, Corcoran, on September 21, 2009. (ER 301.)

A validated gang member or associate will be considered for “review of
inactive status” and release from the SHU “when the inmate has not been identified
as having been involved in gang activity for a minimum of six (6) years.” Cal. Code
Regs. tit. 15, § 3378(e) (2010); see also id. § 3341.5(c)(5) (2010) (“The term inactive
means that the inmate has not been involved in gang activity for a minimum of six
(6) years.”); § 3341.5(c)(6) (2010) (“Current activity is defined as, any documented

gang activity within the past six (6) years.”). In other words, under the regulations

2 These definitions were subsequently relocated to Cal. Code Regs. tit. 15, § 3378.2(b).

in place at the time Hinojosa was validated, his possession of the envelope, address
book, and birthday card on February 26, 2009 would count as “current” gang
activity until February 25, 2015.

A validated inmate may also show that he or she has dropped out of a gang
by undergoing a process known as “debriefing.” Cal. Code Regs. tit. 15, § 3378.1
(2010). Debriefing involves a two-step process consisting of an interview phase and
an observation phase. Cal. Code Regs. tit. 15, § 3378.1(a) (2010). In the interview
phase, the inmate must provide staff with “information about the gang's structure,
activities and affiliates,” as well as “a written autobiography of their gang
involvement, which is then verified by staff for completeness and accuracy.” Cal.
Code Regs. tit. 15, § 3378.1(b) (2010). In the observation phase, inmates are
observed for up to twelve months in a housing setting with other inmates
undergoing the debriefing process. Cal. Code Regs. tit. 15, § 3378. 1(c) (2010).
Hinojosa alleged in his petition that debriefing places an inmate in jeopardy of
retaliation from gang members and does not ensure release from the SHU or
restoration to credit-earning status. (ER 406.)

Ill. 2010 AMENDMENT TO CALIFORNIA PENAL CODE § 2933.6
Under the version of California Penal Code § 2933.6 in effect at the time of

Hinojosa’s 2003 conviction and 2009 validation as a gang associate, an inmate
placed in SHU was eligible to earn custody credits unless the SHU placement
resulted from one of fourteen types of serious misconduct, ranging from murder to

intentional destruction of state property during a riot, enumerated in Section

2933.6(b). Cal. Penal Code § 2933.6(a), (b) (2009). SHU placement resulting solely
from gang validation did not disqualify an inmate from earning custody credits. /d.

Effective January 25, 2010, Section 2933.6 was amended to eliminate custody
credits for inmates, including Hinojosa, who had been placed in a SHU upon
validation as a gang member or associate. Cal. Penal Code § 2933.6(a) (2010).
Under the new legislation, such inmates were placed in zero-credit earning status.
(ER 294-296.)

On February 25, 2010, Hinojosa appeared before the prison’s Institutional
Classification Committee. (ER 305.) In accordance with the regulations defining
“current” as “within the past six (6) years,” Cal. Code Regs. tit. 15, §§ 3341.5(c)(5),
3341.5(c)(6); 3378(e) (2010), the Committee did not review and update Hinojosa’s
gang status at that time, because the “most recent gang activity documented” was
“not more than six years old.” (ER 305.) Instead, the Committee elected to retain
Hinojosa in the Corcoran SHU for an indeterminate term “due to gang validation”
and placed —_— zero’credit earning status as of January 25, 2010 -- the effective
date of amended Section 2933.6. (ER 305, 364.)

As a result of the change in law, Hinojosa’s minimum release date was
extended by exactly a year, from September 27, 2015, to September 27, 2016. (ER
299, 305.) Hinojosa did not forfeit any custody credits earned prior to the statute's
effective date of January 25, 2010. (ER 364.)

IV. STATE HABEAS PROCEEDINGS
After exhausting his administrative remedies, Hinojosa filed a habeas corpus

petition in Orange County Superior Court on May 30, 2011. (ER 16-91, 307-320.)

Hinojosa presented the ex post facto claim in Ground One of his Superior Court
habeas petition. (ER 18.) Acting pro se, he summarized Ground One as follows:
“The California Legislation Senate Bill-18, enactment of 1/25/10 to forfeited
petitioner's credit earning violated petitioner plea agreement with this court and
the ex post facto constitution.” (ER 18.) In the body of the petition, he cited both Ex
Post Facto Clauses in Article I of the United States Constitution, as wel) as Weaver
v. Graham, 450 U.S. 24 (1981), and Lynce v. Mathis, 519 U.S. 433 (1997), leading
cases on the ex post facto prohibition as applied to custody credits, and he discussed
how those authorities made it unconstitutional to apply amended Section 2933.6 to
his pre-enactment conduct. (ER 22, 25, 39-46.) Hinojosa also made clear that he
was not challenging the underlying prison gang validation in this proceeding, as the
validation was the subject of a separate state habeas petition. (ER 21, 34.) In
Ground Two, Hinojosa raised due process arguments alleging that the application of
amended Section 2933.6 violated his plea agreement. (ER 29, 36, 49-51.)

The Superior Court denied the petition in a reasoned decision on July 8,
2011. Pet. App. 42a-45a. It understood Mr. Hinojosa’s petition as presenting two
claims. The Superior Court considered “petitioner's first claim of error,” generally
corresponding to Ground Two of the petition, as arguing that amended Section
2933.6 “violates the terms of petitioner’s plea agreement and constitutional right to

due process.” Pet. App. 43a. It denied the due process claim on the merits in a

reasoned decision. Pet. App. 43a-44a.

The Superior Court summarized “petitioner's second claim of error” as
follows:
The California Department of Corrections and
Rehabilitation has unlawfully validated petitioner as a

prison gang associate resulting in the retroactive
application of recently amended Penal Code § 2933.6 to

restrict and/or deny petitioner's eligibility for prison
conduct credit in violation of petitioner's constitutional
right to due process and the constitutional proscription
against ex post facto legislation.
Pet. App. 43a. It denied this claim “on grounds petitioner has not sought review of
his claim of error in the proper judicial venue.” Pet. App. 44a. Citing the California
Supreme Court's decision in Griggs v. Superior Court, 16 Cal. 3d 341, 347 (1976),
the Superior Court reasoned that Hinojosa’s claim of improper gang validation
resulting in the denial of conduct credits “is essentially a challenge to a condition of
confinement” that should be entertained in the superior court of confinement (Kings
County), not in the superior court of conviction (Orange County). Pet. App. 44a.
Hinojosa then filed an original habeas petition raising the ex post facto claim
in the California Court of Appeal on September 2, 2011. (ER 98-179.) The petition
was denied without comment on October 11, 2011.5 (ER 4.)
Following the California Court of Appeal’s denial, Hinojosa filed an original
habeas petition in the California Supreme Court on December 5, 2011. (ER 180-
261.) The California Supreme Court denied the petition without comment on April

11, 2012. Pet. App. 40a.

* Although Petitioner's Appendix correctly reproduces the text of this order, it incorrectly
reproduces the filing date as “October 18, 2005.” Pwt. App. 41a.

Vv. FEDERAL HABEAS PROCEEDINGS
Hinojosa filed a pro se federal habeas petition on June 15, 2012. (ER 262-

340.) As relevant here, the first ground of the federal petition raised the ex post
facto claim presented to the California courts. (ER 268-274.)

The magistrate judge filed a report and recommendation on March 28, 2013.
Pet. App. 3la-39a. As relevant here, the magistrate judge concluded that the
California Superior Court’s opinion represented the last reasoned decision for
“some” of Hinojosa’s claims. Pet. App. 34a. Although the magistrate judge did not
explain what he believed to be the Superior Court’s basis for denial of the ex post
facto claim, it is clear that the magistrate judge treated all of the claims in
Hinojosa’s federal! petition as subject to the deferential standards in 28 U.S.C.

§ 2254(d), as amended by AEDPA, and recommended denial of the petition. Pet.
App. 33a-34a. The district court adopted the findings and recommendation of the
magistrate judge and entered a judgment denying relief. Pet. App. 29a-30a.

The court of appeals reversed, with Judge Carlos T. Bea writing for the
unanimous panel, which also included Judge Ferdinand F Fernandez and Judge
Raymond C. Fisher. Pet. App. la-3a. The court of appeals began by no*ing that it
had rejected a similar ex post facto challenge to amended Section 2933.6 under
AEDPA, in Nevarez v. Barnes, 749 F.3d 1124 (9th Cir. 2014). Pet. App. 9a. It then
proceeded to explain that Section 2254(d) of AEDPA did not apply to Hinojosa’s
claim because the California Superior Court denied the ex post facto claim on the
procedural ground of improper venue, not on the merits. Pet. App. 9a-10a. The

court of appeals rejected the State’s argument that this Court's decisions in

Harrington v. Richter, 562 U.S. 86 (2011) (“Richter’), and Johnson v. Williams, __
U.S. _, 133 S. Ct. 1088 (2013), silently abrogated the “look through” presumption
adopted in Yist v. Nunnemaker, 501 U.S. 797 (1991). Pet. App. 10a. After looking
through to the Superior Court’s decision, which rested on a procedural ground, the
court of appeals concluded that any presumption that the higher courts’ summary
denials were on the merits had been rebutted. Pet. App. 10a. Because the State did
not raise a procedural default defense, the court of appeals turned to the merits of
the ex post facto claim. Pet. App. 10a-1la.

Citing this Court’s decision in Lynce v. Mathis, 519 U.S. 433, 441 (1997), the
court of appeals considered whether amended Section 2933.6 was both retrospective
and disadvantageous. Pet. App. 1la-12a. As to retrospectivity, the court of appeals
noted that this Court “has instructed that the ‘critical question is whether the law
changes the legal consequences of acts completed before its effective date.” Pet.
App. 12a (quoting Weaver v. Graham, 450 U.S. 24, 31 (1981)). To answer this
question, the court of appeals had to determine “which acts” counted for purposes of
retrospectivity analysis -- the original criminal conduct resulting in incarceration,
as Hinojosa argued, or Hinojosa’s prison-gang association, which the State claimed
was ongoing. Pet. App. 12a-13a.

On de novo review, the court of appeals concluded that under its precedent in
United States v. Paskow, 11 F.3d 873 (9th Cir. 1993), and this Court’s decision in
Weaver, the date of the inmate’s underlying criminal conduct was the relevant date

for ex post facto purposes. Pet. App. 17a. In Weaver, this Court held that a Florida

statute reducing the amount of available “gain time,” or custody credits, was
retrospective even though, on its face, it applied only after its effective date. 450
U.S. at 31. Paskow held that an amendment to the federal supervised release
statute, 18 U.S.C. § 3583, which imposed a new mandatory minimum revocation
sentence, violated the Ex Post Facto Clause as applied to a defendant who was
convicted before the amendment but violated »upervised release after the
amendment. 11 F.3d at 875.4 Pet. App. 14a-15a. In both cases, the date of the
original criminal offense governed the retrospectivity analysis even though, in
Paskow, the defendant had committed an intervening act of misconduct that
subjected him to the new law. Pet. App. 13a-15a (citing Paskow, 11 F.3d at 877;
Weaver, 450 U.S. at 31). The court of appeals reasoned that under Weaver and
Paskow, a prisoner’s eligibility for an earlier release is part of his underlying
criminal sentence, regardless of the precise mechanism (custody credits, parole) by
which that release is brought about; a change in that early-release mechanism thus
effectively “changes the legal consequences” of the underlying criminal conduct.
Pet. App. 17a (quoting Weaver, 450 U.S. at 31). Because Hinojosa committed his
offenses of conviction before the change in law, the court of appeals held that

amended Section 2933.6 was retrospective as applied to him. Pet. App. 18a.

‘ As the court of appeals noted, Paskow, in turn, relied on this Court’s summary affirmance
in Greenfield v. Scafati, 277 F. Supp. 644, 644-46 (D. Mass. 1967), afd mem., 390 U.S. 713 (1968)
(per curiam). Pet. App. 14a-16a & n.6. In Greenfield, a three-judge district court held that a
Maseachusetts law providing for forfeiture of good-conduct credits for a violation of parole violated
the Ex Poet Facto Clause as applied to an inmate who committed his offense before the change in
law but violated his parole after the statute went into effect. 277 F Supp. at 644-46.

10

The court of appeals further concluded that the amendment to Section 2933.6
disadvantaged Hinojosa by extending his release date by a year. Pet. App. 20a-22a.
It rejected the State’s argument that, under California Department of Corrections v.
Morales, 514 U.S. 499 (1995), Hinojosa’s risk of an increased sentence was too
speculative and attenuated to violate the Ex Post Facto Clause. Pet. App. 2la-22a.
The court of appeals pointed out that unlike in Morales, which involved a change
only to the timing of parole hearings, here the “substantive formula” for awarding
custody credits has been changed, to Hinojosa’s detriment. Pet. App. 22a. It also
addressed the State’s argument that Hinojosa was not disadvantaged because he
could disaffiliate from the prison gang and resume earning credits. Pet. App. 22a.
The court of appeals explained that waiting six years to enter “inactive” status and
debriefing were both lengthy procedures, uncertain to result in full restoration of
credits, and debriefing was potentially dangerous to boot. Pet. App. 22a. These new
conditions placed on Hinojosa’s eligibility for custody credits thus disadvantaged
him. Pet. App. 23a.

The court of appeals was careful to note that the decision did not prohibit the
State from enacting a new statute to punish in-prison misconduct and applying it to
inmates whose underlying offense conduct predated the enactment. Pet. App. 23a-
24a. Nor did the decision prevent the State from punishing prison misconduct
through new administrative disciplinary measures that stop short of extending the
sentence, such as segregated housing and loss of privileges, without regard to the

date of the inmate’s underlying crime. Pet. App. 19a. Under the court of appeals’

decision, only those new laws that retroactively increased prison time would run

afoul of ex post facto prohibitions. Pet. App. 19a, 24a.
REASONS FOR DENYING THE PETITION

I. THE COURT OF APPEALS’ NARROW AND CORRECT DECISION
DOES NOT WARRANT THIS COURT'S REVIEW

A. Petitioner’s Request For Error Correction Misconstrues This
Court’s Precedents And California Law.

Petitioner asks this Court to “correct” the court of appeals’ decision to
consider the ex post facto claim de novo, rather than under AEDPA’s deferential
standards. Pet. 11. As his proposed first question presented makes clear,
Petitioner would have this Court intervene to settle a narrow disagreement on the
operation, under state law, of a state trial court’s procedural ruling. Pet. i.
Petitioner's faint attempts to cast the issue more broadly -- as one of dueling
presumptions in Yist and Richter, or the general inapplicability of Y7st to California
habeas decisions -- are foreclosed by this Court’s precedents and are therefore
unavailing. And contrary to Petitioner’s incomplete and misleading description of
California law, the state’s habeas review procedures actually support, rather than
defeat, the court of appeals’ application of Yist in this case. Petitioner's request for
case-specific error correction lacks merit and should be rejected.

To the extent that Petitioner argues broadly that the court of appeals
improperly elevated YJsfs look-through presumption over Aichter's presumption of
a merits adjudication, that contention is foreclosed. This Court has continued to
apply Yist after Richter. See Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015). Here,

Hinojosa filed a habeas petition at every level of the California courts, and the

12

California Superior Court issued a reasoned decision on his ex post facto claim. Pet.
App. 44a. Richter, on the other hand, filed only one state habeas petition, in the
California Supreme Court; that petition was denied in a one-sentence summary
order. Richter, 562 U.S. at 96. As two Justices of this Court have recently noted,
Richter did not supersede Y/st in cases where a lower state court issued a reasoned
decision: “With no reasoned opinion to look through to, the Court [in Richter] had no
occasion to cast doubt on Yist. To the contrary, the Court cited Y/st approvingly in
Richter, . . . and did so again two years later in Johnson v. Williamd.)” Hittson v.
Chatman, 135 S. Ct. 2126, 2127 (2015) (Ginsburg, J., concurring in denial of
certiorari) (citations omitted). “In short, Richter instructs that federal habeas
courts should continue to ‘look through’ even nondiscretionary adjudications to
determine whether a claim was procedurally defaulted.” /d. That is precisely what
the court of appeals did here.

In the same vein, Petitioner erroneously asserts that the California Supreme
Court’s decision in Jn re Reno, 55 Cal. 4th 428 (2012), establishes that all of that
court’s summary denials must be treated as merits decisions for purposes of federal
habeas review. Petitioner claims that Aeno addressed “this specific context,” Pet.
14, but it did no such thing. In eno, as in Richter, the petitioner had previously
filed a state habeas petition only in the California Supreme Court, and not first in
any lower court. 55 Cal. 4th at 447. The California Supreme Court denied that

first habeas petition summarily. /d. In Reno, the California Supreme Court

13

explained that its previous summary denial was on the merits.5 Jd. But, as in
Richter, there were no reasoned opinions by lower courts to look through to. Reno
therefore does not speak to the issue presented in this case.

Moreover, California’s original writ system for habeas corpus petitions does
not make Yi/st inapplicable, because Y/st itself involved looking through four
summary denials of California original state habeas petitions to the last reasoned
decision on a constitutional claim. 501 U.S. at 806-06. That last reasoned decision
had been issued on direct appeal and imposed a procedural bar. Jd. at 806. In YJst,
the Ninth Circuit had ruled that the California Supreme Court's “silent denial” of a
state habeas petition constituted a decision on the merits that “lifted the procedural
bar” imposed in the last reasoned decision, id. at 801 -- essentially the same
argument Petitioner advances in this case. Pet. 12-16. This Court reversed and
established the following presumption for determining the basis for a state court’s
denial of a claim: “Where there has been one reasoned state judgment rejecting a
federal claim, later unexplained orders upholding that judgment or rejecting the
same claim rest upon the same ground.” Yist¢, 501 U.S. at 803. This Court added,

“where, as here, the last reasoned opinion on the claim explicitly imposes a

5 Both cases cited in Reno for this proposition involved petitioners who filed only in the
California Supreme Court and received a summary denial there. 55 Cal. 4th at 447 (citing /n re
Clark, 5 Cal. 4th 760, 760-61 (1993); Crittenden v. Ayers, 624 F.3d 943, 949, 960 (9th Cir. 2010)). As
distinguished from this case, Reno, Clark, and Crittenden are capital cases, a fact which explains
why the habeas petitions were filed directly in the California Supreme Court, and not first in any
lower court. Heno, 56 Cal. 4th at 446; Clark, 5 Cal. 4th at 759; Crittenden, 624 F.3d at 947. In
California, cases in which a death sentence is imposed are automatically appealed to the California
Supreme Court. See People v. Massie, 19 Cal. 4th 550, 562 (1998); Cal. Penal Code § 1239b). If the
judgment is affirmed on direct appeal, the defendant may further challenge the judgment by filing a
habeas petition directly in the California Supreme Court. Reno, 55 Cal. 4th at 442.

14

procedural default, we will presume that a later decision rejecting the claim did not
silently disregard that bar and consider the merits.” /d. Yis¢s holding directly
controls the present case.

Crucially, in formulating this presumption, this Court knew that the “later
unexplained orders” in Y/st arose from state habeas petitions invoking the “original
jurisdiction,” and not the appellate jurisdiction, of the California Court of Appeal
and the California Supreme Court; it took care to note that fact for each petition.
Id. at 800. Nevertheless, this Court looked through two summary denials by the
California Supreme Court, one summary denial by the California Court of Appes!,
and one summary denial by the California Superior Court before settling on the
California Court of Appeal’s opinion on direct review as the “last exp/ained state-
court judgment” on the constitutional claim. /d. at 805-06. Because that opinion
imposed a procedural bar, and the habeas petitioner had not carried his burden of
adducing “strong evidence” to overcome the presumption, soon of the claim was
procedurally defaulted unless the habeas petitioner could show cause and prejudice
for the default. Jd. at 806. Although the roles are reversed here, and it is the State
who bears the burden of rebutting the “look through,” the Y/st presumption works
in the same way. The YJst presumption is not alien to the California courts, with
their original habeas jurisdiction; to the contrary, this Court created the YJst

presumption with California’s collateral review structure in mind.

6 The roles are reversed because the State did not argue procedural default at any stage of
the proceedings, and the court of appeals found any procedural default defense to be waived. Pet.

App. lla.

15

More generally, this Court has rejected claims that California’s “original
writ” system is exceptional for purposes of federal habeas review. In Carey v.
Saftold, 536 U.S. 214 (2002) (“Saffd/a’), this Court acknowledged that California’s
collateral review system differed from that of other states “in that it does not
require, technically speaking, appellate review of a lower court determination.
Instead it contemplates that a prisoner will file a new ‘original’ habeas petition.” /d.
at 221. But it denied that this difference was material for purposes of statutory
tolling under 28 U.S.C. § 2244(d)(2):

California’s “original writ” system, however, is not as
special in practice as its terminology might suggest. As
interpreted by the courts, California’s habeas rules lead a
prisoner ordinarily to file a petition in a lower court first.
In re Ramirez, 89 Cal.App.4th 1312, 1316, 108
Cal.Rptr.2d 229, 232 (2001) (appellate court “has
discretion to refuse to issue the writ . . . on the ground
that application has not [first] been made .. . in a lower
court”);.... At the same time, a prisoner who files that
same petition in a higher, reviewing court will find that
he can obtain the basic appellate review that he seeks,
even though it is dubbed an “original” petition. See /n re
Resendiz, 25 Cal.4th 230, 260, 105 Cal.Rptr.2d 341, 19
P.3d 1171, 1184 (2001) (reviewing court grants
substantial deference to lower court’s factual findings).
Thus, typically a prisoner will seek habeas review in a
——— and later seek appellate review in a higher
courtl.

Id. at 222. In short, this Court concluded that California’s “original writ’ system
functions like the ‘appeal’ systems of . . . other States.” Jd. at 225. This Court's
reasoning in Safd/d defeats Petitioner's argument that Y/s/s look-through doctrine
does not apply to California’s “original writ” system. The California authorities

discussed in Safold show that an original habeas petition filed in the California

16

Court of Appeal or California Supreme Court does not initiate a completely
independent proceeding, unencumbered by any consideration of, or deference to, the
Superior Court’s reasoning or findings.

While it is true that the California Supreme Court’s original habeas
jurisdiction extends to the entire State, it does not necessarily follow, as Petitioner
asserts, that the California Supreme Court could not possibly have based its denial
on the Superior Court’s conclusion that Hinojosa had filed in the wrong trial court.
Contrary to Petitioner’s suggestion, Pet. 10, the California Supreme Court's
statewide habeas jurisdiction does not distinguish it from the lower courts. All
California courts have statewide jurisdiction in habeas cases.’ Jn re Roberts, 36
Cal. 4th 575, 582 (2005). Under California law, “both trial and appellate courts
have jurisdiction over habeas corpus petitions, but a reviewing court has discretion
to deny without prejudice a habeas corpus petition that was not filed first in a
proper lower court.” In re Steele, 32 Cal. 4th 682, 692 (2004) (emphasis added); see
also People v. Superior Court (Jimenez), 28 Cal. 4th 798, 806 n.3 (2002) (“We note
that the Court of Appeal does not lack jurisdiction over the writ proceeding (Cal.
Const., art. VI, § 10), although normally it has discretion to deny a petition that was
not filed first in a proper lower court”); 6 B. Witkin & N. Epstein, California
Criminal Law, Criminal Writs § 24, p. 629 (4th ed. 2012) (“Even though the

appellate court has constitutional jurisdiction to grant habeas corpus... ., it has

7 In fact, the Superior Court itself recognized that it had jurisdiction to adjudicate Hinojosa's
case on the merits, as well as discretion not to do ao. Pet. App. 44a (“Although any superior court
has jurisdiction to entertain and adjudicate a petition for writ of habeas corpus, it does not follow
that it should do go in all instances.”).

17

discretion to refuse to exercise that jurisdiction, and will normally do so, until the
petitioner has unsuccessfully applied for the writ in the lower court of the county of
detention.”) The details of California law demonstrate that it was not only possible
that the California Supreme Court's summary denial was based on Hinojosa's
presumed failure to file in the wrong trial court; it was probable, in keeping with
the California appellate courts’ norma! exercise of their discretion in habeas cases.
At bottom, Petitioner's quarrel with the court of appeals’ opinion amounts to
a case-specific disagreement regarding the details of California habeas procedure.
Pet. 10 (“In the circumstances of this case, . . . reliance on Y/st makes no sense at
all.”); Pet. 15 (“There was no basis in this case for the court to rely on a look-through
under Yist....”"). But, despite his claim that his position is supported by
“straightforward California procedural and substantive law,” Petitioner musters no
authority whatsoever for his claim that the California Supreme Court could not
have denied Hinojosa’s ex post facto challenge on procedural grounds. Pet. 14-15.
Petitioner's meritless plea for error correction is unworthy of this Court's review.

B. Petitioner Did Not Press His Y/s¢ Argument In The Court Of
Appeals.

This case also presents a poor vehicle for certiorari because Petitioner’s claim
of error is belated, as well as meritless and limited to the specific facts of this case.
See United States v. United Foods, Inc., 533 U.S. 405, 417 (2001) (declining to
“allow a petitioner to assert new substantive arguments attacking, rather than
defending, the judgment when those arguments were not pressed in the court whose

opinion we are reviewing, or at least passed upon by it”). In his opening brief in the

court of appeals, Hinojosa argued that the California courts’ denial of his habeas
petition should be reviewed de novo, because the last reasoned state court decision,
that of the Superior Court, either misconstrued his ex post facto claim or
erroneously denied the claim on the procedural ground of improper venue, not on
the merits. Resp. App. 2a-8a. In the answering brief, Petitioner contended that the
Superior Court denied the ex post facto claim on the merits, in the course of
analyzing a different claim involving an alleged violation of Hinojosa’s plea
agreement. Resp. App. 13a. That is, Petitioner agreed that the Superior Court's
decision was the operative decision for purposes of federal habeas review, but took
issue with Hinojosa’s characterization of the Superior Court's decision as a
procedural ruling, as opposed to a denial on the merits of the ex post facto claim.
Resp. App. 12a-14a. Petitioner affirmatively asked the court of appeals to look
through to the Superior Court’s decision; now he claims that the decision to look
through “makes no legal or logical sense.” Pet. 10.

At oral argument, when asked directly about the last reasoned state court
decision, Petitioner took a new tack.* Reversing course, Petitioner conceded that
the Superior Court’s decision rested on a procedural ground (9:26-9:36) and asked
the court of appeals not to look through to the Superior Court's decision. For the
first time, Petitioner argued that in light of California’s original writ system for

habeas petitions and this Court's decisions in Richter and Cullen v. Pinholster, 563

® All time-stamp references in this paragraph are to the video recording of oral argument in
the court of appeals. See https://www.youtube.com/watch?v=nEZL67YLZJU.

19

U.S. 170 (2011), the California Supreme Court’s summary denial of Hinojosa’s
habeas petition must be presumed a denial on the merits. (9:10-10°48.)

Petitioner faults the court of appeals for overlooking principles of state law
that bear on the question of whether AEDPA deference applies in this case. Pet. 9-
16. In essence, Petitioner argues that these state-l!aw principles represent “strong
evidence” that Yis¢s “look through” presumption, as applied in this specific case, is
wrong. Yist, 501 U.S. at 806 (emphasis in original). But, until oral argument,
Petitioner himself failed to notice those aspects of California law that he now claims
are “straightforward” and obvious. Pet. 14. It goes without saying that an
argument not raised in the district court or in appellate briefing, and first touched
on at oral argument, hardly constitutes “strong evidence” of anything. Because
Petitioner did not press his YJst argument until oral argument (and only glancingly
then), and the evidence is insufficient to carry Petitioner's heavy burden of rebuttal
in any event, this Court should deny the petition for certiorari.

C. This Case Is A Poor Vehicle For Resolving The Yist Issue Because
It Is Not Outcome-Determinative.

Even if the court of appeals committed a case-specific error in applying Y/st
to the facts of this case, this case does not merit this Court's attention because
reversal on that basis would not affect the outcome.

In the court of appeal, Hinojosa argued that AEDPA did not apply for a
second, independent reason: the California Superior Court misconstrued his ex post
facto claim as challenging the lawfulness of his underlying validation as a prison

gang associate, as distinguished from amended Section 2933.6’s ex post facto effect

20

on his sentence regardless of whether the earlier gang validation was proper. Resp.
App. 5a-6a. Petitioner evidently shared this understanding of the Superior Court’s
decision, which it described in its appellate brief as follows: “The court also ruled
that as to the claim of error in validating him as a gang member, Hinojosa did not
avail himself of the relief he could have by filing a habeas petition in the county
where he was being held.” Resp. App. 10a-1la, emphasis added. The Superior
Court’s mistaken understanding of the claim explains why it erroneously treated
Hinojosa’s challenge to his sentence as “essentially a challenge to a condition of
confinement.” Pet. App. 44a.

When a state court rejects a federal constitutional claim fairly presented to it
out of “sheer inadvertence,” the resulting decision is not an adjudication on the
merits. Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013); see also Henderson v.
Cockrell, 333 F.3d 592, 600-01 (5th Cir. 2003) (holding that AEDPA’s standards of
review do not apply where state courts “misconstrued” petitioner's claim and “did
not address .. . actual claim”); Davis v. Sec’'y for Dep't. of Corr., 341 F.3d 1310, 1313
(11th Cir. 2003) (per curiam) (same); Appel v. Horn, 250 F.3d 203, 210-12 (3d Cir.
2001) (reviewing de novo where state court erroneously “recharacterized” claim).
Hinojosa made clear that he was not challenging the underlying gang validation in
the Superior Court proceeding. (ER 34.) For this entirely separate reason, “the
evidence leads very clearly to the conclusion that a federal claim was inadvertently
overlooked in state court,” and AEDPA’s deferential standard of review should not

apply. Johnson, 133 S. Ct. at 1097.

2i

In addition, the court of appeals’ ex post facto holding is correct regardless of
the standard of review. The Fifth Circuit's recent decision in Price v. Warden, 785
F.3d 1039 (5th Cir. 2015), confirms that the court of appeals properly granted relief
to Hinojosa even if AEDPA applies. In Price, the Fifth Circuit considered a 1997
amendment to Louisiana’s good-time credit statute that required a parole violator
to forfeit all good-time credit earned: prior to the amendment, the forfeiture was
limited to 180 days. Jd. at 1040. Price committed his underlying crime before the
amendment, but violated parole in 2003, after the amendment. /d Price not only
knew he was subject to credit forfeiture if he violated parole; he expressly agreed to
that condition. /d. at 1043.

Applying AEDPA, the Fifth Circuit held that the forfeiture of Price’s good-
time credits upon parole revocation violated the Ex Post Facto Clause, and that the
state court’s judgment was not just erroneous, but contrary to clearly established
federal law. Jd. at 1043. The Fifth Circuit identified this Court’s summary
affirmance in Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass. 1967), aff?d mem.,
390 U.S. 713 (1968) (per curiam), as controlling precedent on the question of credit
forfeiture resulting from intervening misconduct: “By summarily affirming in
Greenfield, the [Supreme] Court necessarily held that a good-time forfeiture law
enacted after a prisoner’s sentencing is retrospective, even if forfeiture is triggered
by the parolee’s post-enactment conduct.” Jd. at 1042-43. The Fifth Circuit
therefore held that the amended Louisiana statute could not constitutionally be

applied to an inm «te “whose crime occurred before its effective date.” /d. at 1040.

22

Price demonstrates that the court of appeals properly granted relief to Hinojosa
even if it applied the wrong standard of review. This Court's intervention is not

needed to correct a decision that reached the right result.

Il. THERE IS NO SERIOUS CONFLICT ON THE EX POST FACTO
ISSUE, AND THE ISSUE RECURS INFREQUENTLY.

This Court need not intervene to clarify an ex post facto issue that arises in
the federal courts, by Petitioner's count, approximately once a decade. The Second
and Fourth Circuit cases relied on by Petitioner are highly factbound, as they turn
on the specific statutory schemes for earning credits in other states and the timing
and nature of the prison misconduct involved. The California Supreme Court
decision relied on by Petitioner, /n re Ramirez, has been called into question over
the past thirty years, and it is unclear whether the California Supreme Court would
extend it to these facts. In any event, because of AEDPA and the procedural default
doctrine, Hinojosa may be the only inmate to benefit directly from the court of
appeals’ decision. As such, there is no real-world conflict between the California
Supreme Court and the Ninth Circuit on the ex post facto question.

A. Any Split In The Federal Courts Of Appeal Is Shallow, Factbound,
And Outdated.

Petitioner identifies only two federal decisions, and none from the last fifteen
years, with which the court of appeals’ decision supposedly conflicts. Pet. 23-25.
Because the decisions in those cases depend in large part on the peculiar features of
the state credit-earning schemes at issue and the timing of the prison misconduct,

they cannot be divorced from their specific facts. Further, it is telling that

Petitioner points to no conflicting case postdating this Court’s decision in JoAnson v.

23

United States, 529 U.S. 694 (2000), which clarified that penalties for postconviction
misconduct must be attributed to a defendant's original offense, and not treated as
punishment for the misconduct itself. /d. at 699-700.

The Second Circuit's decision in Abed v. Armstrong, 209 F.3d 63 (2d Cir.
2000), is distinguishable because it turned on the discretionary nature of the
Connecticut good time credit statute. The Second Circuit noted that the
Connecticut statute, which provided that inmates “may” earn credit for good
conduct, made the award of credits “a discretionary matter.” Jd. at 66. The Second
Circuit therefore concluded that a Connecticut prison administrative directive
preventing prison gang members from earning statutory good time credit did not
disadvantage Abed because no firm entitlement to good time credit existed in the
first place. /d. The analogous California statute, by contrast, is phrased in
mandatory terms: “For every six months of continuous incarceration, a prisoner
shall be awarded credit reductions from his or her term of confinement of six
months. A lesser amount of credit based on this ratio sha// be awarded for any
lesser period of incarceration.” Cal. Penal Code § 2933(b) (emphases added).
Unlike in Abed, here there is no question that amended Section 2933.6 tangibly
disadvantaged Hinojosa by extending his minimum release date.

Briefly, the Second Circuit also reasoned that the administrative directive
was not retrospective as applied to Abed, who was classified as a prison gang
member after the administrative directive went into effect. Abed, 209 F.3d at 66.

Hinojosa, however, was validated as a prison gang associate before Section 2933.6

24

was amended, and all of the evidence of gang association predated the change in the
law. Although the Ninth Circuit did not rely on this fact in finding amended
Section 2933.6 retrospective, it clearly distinguishes this case from Abed.

Nor is there any conflict with the Fourth Circuit’s decision in Ewell v.
Murray, 11 F.3d 482 (4th Cir. 1993), which dealt with a statute that was not penal
in nature. In 1990, the state of Virginia enacted a statute establishing a DNA benk
and requiring incarcerated felons to provide a blood sample for the bank prior to
release. Jones v. Murray, 962 F.2d 302, 308-09 (4th Cir. 1992). The Fourth Circuit
held in Jones that the DNA requirement, standing alone, was “not penal” and
therefore could not violate the Ex Post Facto Clause. /d. at 309. It then concluded
that violators of the DNA requirement could be “administratively punished” for
failing to comply. /d. Relying on its en banc decision in Gaston v. Taylor, 946 F.2d
340, 343 (4th Cir. 1991) (en banc), the Fourth Circuit characterized the DNA
requirement as a “reasonable prison regulation[]” and deemed any subsequent
punishment resulting from noncompliance as “part of the sentence of every
prisoner,” not unlike changes in location, variations of routine, changes in condition
of confinement, and denials of privileges. Jones, 962 F.2d at 309-10.

While Jones was being litigated, the Virginia Department of Corrections
adopted regulations that “punished” an inmate’s refusal to provide a blood sample.
Ewell v. Murray, 11 F.3d 482, 484 (4th Cir. 1993). One of the new regulations
imposed a penalty of the loss of 90 days of good conduct time for a first refusal, 180

days for a second refusal, and all accumulated good conduct time for subsequent

25

refusals. /d. at 484-85. Two facts were critical to the Fourth Circuit's
determination that application of the new regulation to all later refusals did not
violate the Ex Post Facto Clause. First, the Fourth Circuit emphasized that the
DNA bank statute is “not penal in nature.” /d. at 485; see also id. at 487. It also
underscored the fact that Virginia’s “good conduct allowance system itself.”
established by statute, “was not amended during the applicable periods here. The
rate of good conduct time allowed and the structure of the system have remained
constant.” /d. at 486. In the Fourth Circuit’s view, the unchanged statutory credit
scheme distinguished Hwei// from this Court’s decision in Weaver. Id. at 487. Given
these specific aspects of Virginia’s statutory and regulatory framework, the Fourth
Circuit viewed itself as deciding a “narrow question.” /d. at 486.

Ewells factual underpinnings distinguish it from this case. As Petitioner
points out, the amendment to Section 2933.6 was enacted as part of a “broad
criminal justice reform measure.” Pet. 5. Petitioner does not dispute that amended
Section 2933.6, which can be found in that chapter of the California Penal Code
pertaining to “Execution of Sentences of Imprisonment,” is “penal” in nature. See
Cal. Penal Code, pt. 3, tit. 1, ch. 7. And there is no question that, unlike in Awel/
(and Abed), the amendment to Section 2933.6 changed California's statutory
custody credits system itself, not merely regulations administering the statutory
scheme. Section 2933.6 is located in that article of the Penal Code titled “Credit on
Term of Imprisonment,” which sets forth the rate and structure of the various

credits available to California inmates. Cal. Penal Code §§2930-2935.

26

Further, Zwe// rests on the outdated premise that the punishment for
refusing to provide a blood sample “does not add punishment for the original crime
for which the inmate was incarcerated,” as it punishes only subsequent misconduct.
11 F.3d at 486. This Court rejected this line of reasoning in Johnson, where it held
that penalties imposed for a violation of federal supervised release are “part of the
penalty for the initial offense,” as opposed to “punishment for the violation of the
conditions of supervised release.” 529 U.S. at 700. Adopting this understanding of
supervised release allowed this Court to avoid the “serious constitutional questions”
that would arise if postrevocation penalties were construed as punishment for the
violation conduct, including the fact that “the violative conduct need not be criminal
and need only be found by a judge under a preponderance of the evidence standard,
not by a jury beyond a reasonable doubt.” /d. In light of the Fourth Circuit's
reliance on this discredited distinction, it is unsurprising that we//s ex post facto
holding has not been cited in a reported appellate case in more than twenty years.

Although JoAnson involved federal supervised release, and not loss of custody
credits, the same principle applies here. Like the hypothetical violation conduct in
Johnson, the actual conduct resulting in Hinojosa’s loss of custody credits -- mere
possession of an envelope, address book, birthday card, and tattoos evincing gang
association ~~ is not criminal in itself. See People v. Castenada, 23 Cal. 4th 743, 745
(2000) (conviction under Cal. Penal Code § 186.22, criminal street gang activity,
requires “involvement with a criminal street gang that is more than nominal or

passive”). And the fact of gang validation underlying Hinojosa’s ineligibility for

27

credits was found by a prison committee, not by a jury beyond a reasonable doubt.
Characterizing Hinojosa’s additional year of imprisonment as punishment for
intervening misconduct, when that misconduct amounts to a status offense, creates
more constitutional problems for Petitioner than it solves.

B. There Is No Real-World Conflict With The California Supreme
Court.

The California Supreme Court’s decision in Jn re Ramirez, 39 Cal. 3d 931
(1985), which predates Johnson, suffers from the same misunderstanding of the
relevant date for purposes of retrospectivity analysis as Ewell Ramirez involved
1982 amendments to California’s statutory scheme for sentence reduction credits,
which generally expanded the number of acts resulting in credit forfeiture,
increased the number of credits subject to forfeiture for misconduct, provided for
loss of participation credits as well as good behavior credits, and eliminated limits
on credits subject to forfeiture. /d. at 933. Although it concluded that the
amendments were disadvantageous for ex post facto purposes, the California
Supreme Court flatly rejected the habeas petitioner's argument that the
amendments were retrospective because they related to the original offense of
conviction, not to the post-amendment prison misconduct:

It is true that the 1982 amendments apply to petitioner
only because he is a prisoner and that he is a prisoner
only because of an act committed before the 1982
amendments. Nonetheless, the increased sanctions are
imposed solely because of petitioner’s prison misconduct
occurring after the 1982 amendments became effective.
In other words, the 1982 amendments apply only to
events occurring after their enactment. ... Accordingly,

the 1982 amendments . . . do not relate to petitioner's
original crime and are not retrospective under Weaver.

28

Id. at 936-37. Again, this is the same logic rejected by this Court in Johnson, which
avoided thorny constitutional questions by attributing post-revocation penalties to
the original offense of conviction, rather than treating them as punishment for
subsequent misconduct. 529 U.S. at 700.

Indeed, the California Supreme Court and California Court of Appeal have
recognized Johnson's effect on Ramirez's ex post facto analysis. In People v.
Callejas, 85 Cal. App. 4th 667 (Cal. Ct. App. 2000), a parolee challenged a parole
revocation fine imposed pursuant to a statute enacted after the parolee committed
the underlying offense. /d. at 669. The California Court of Appeal initially filed an
opinion concluding that there was no ex post facto violation. /d. at 675-76. The
California Supreme Court granted a petition for review, vacated the Court of
Appeal’s opinion, and ordered reconsideration in light of this Court’s decision in
Johnson. People v. Callejas, 2 P.3d 1064 (Cal. 2000). Concluding that there was “no
principled way of distinguishing JoAnson from the present case,” the California
Court of Appeal departed from Aamirez and issued an amended opinion holding
that application of the parole revocation fine to a defendant whose underlying crime
preceded the enactment of the fine statute would violate ex post facto principles.
Callejas, 85 Cal. App. 4th at 674-78.

The California Court of Appeal also limited Ramirezs reach in /n re Lomax,
66 Cal. App. 4th 639 (Cal. Ct. App. 1998). In 1995, California Penal Code § 2933
was amended to grant discretion to the Director of Corrections to decline to restore

credits forfeited as a result of certain serious disciplinary infractions. Lomax, 66

29

Cal. App. 4th at 643. Before the 1995 amendment, Section 2933 had required
restoration of forfeited credits in most cases, provided the inmate completed a
certain period free of discipline. Jd. In 1996, in response to the statutory grant of
discretion, the Department of Corrections revised its regulations to prohibit, for the
first time, the restoration of conduct credits forfeited for certain categories of
disciplinary infractions. /d. at 641, 643. In Lomax, the California Court of Appeal
departed from Ramirez and held that the revised credit-forfeiture regulations
violated the Ex Post Facto Clause for prisoners who committed their misconduct
prior to the amendments. /d. at 643-48; see also In re Mikhail, 70 Cal. App. 4th
333, 336 (Cal. Ct. App. 1999) (same). The California Court of Appeal rejected the
State’s suggestion that Ramirez stood for the sweeping proposition that “changes in
sanctions for misconduct do not relate to the petitioner's original crime and thus are
not retrospective under Weaver v. Grahaml.]” In re Lomax, 66 Cal. App. 4th at 644.
Specifically, the Lomax court concluded that Ramirezs broad pronouncements must
be interpreted in light of this Court’s intervening decision in Lynce v. Mathis, 519
U.S. 433 (1997). In ro Lomax, 66 Cal. App. 4th at 644.

In Lomax, the California Court of Appeal relied on Lynce’s emphasis on the
“objective effect” of an amendment, rather than the legislative purpose behind the
change. /d. at 646-48. Under an analysis focusing on the objective consequences of
the change in law, the California Court of Appeal reasoned, “[t)he fact that prison
misconduct is at issue does not serve to distinguish this case from [ Weaver v.|

Graham or Lynce for purposes of ex post facto analysis.” /d. at 647. The Lomax

30

Court also regarded Lynce as foreclosing the State’s argument that custody credits
were unrelated to the penalty for the original crime. /d. at 646-47. Because it is
unclear whether the California Supreme Court would extend its thirty-year-old
decision in Ramirez to amended Section 2933.6, especially in light of this Court's
intervening decisions in Johnson and Lynce, Ramirez does not squarely conflict
with the court of appeals’ decision in this case.

The active nature of the misconduct at issue in Ramirez also differs
dramatically from the status offense of gang association. In Ramirez, the inmate
lost custody credits for the discrete act of altering the paperwork relating to a
television set. 39 Cal. 3d at 934. Against this factual backdrop, the California
Supreme Court reasoned that “[iJf any aspect of prison life is unconnected to a
prisoner’s original crime, it would seem to be the sanctions for his misconduct while
in prison.” 39 Cal. 3d at 936. But that is not so when the misconduct takes the
form of gang association: Hinojosa was convicted of participation in criminal street
gang activity, in violation of California Penal Code § 186.22(a), a crime that is in
fact closely connected to a subsequent finding of gang association. Further, the
California Supreme Court stressed that Ramirez had received “fair warning” of the
increased sanctions and, nevertheless, chose to alter his sentence “by his own
action.” /d. at 938, 937. Hinojosa, in contrast, was validated as a gang associate
before the change in law, and was not on notice that validation would lengthen his
sentence. And Hinojosa took no “action” after the change in law. Rather, purely by

operation of state law, his status as an associate was considered a continuing

3]

offense for six years. Cal. Code Regs. tit. 15, § 3341.5(c)(6) (2010). Ramirez did not
contemplate prison misconduct that approaches a status offense.

As a practical matter, the operation of AEDPA blunts any conflict between
Ramirez and the court of appeals’ decision in this case. The Ninth Circuit has held
that under AEDPA, the California courts’ denial of an ex post facto claim based on
the 2010 amendment to Section 2933.6 is not contrary to, or an unreasonable
application of, clearly established federal law. Nevarez, 749 F.3d at 1128-29.
Petitioner fails to mention that the vast majority of Section 2254 petitions filed by
California prisoners regarding amended Section 2933.6 will be subject to Section
2264(d), unless the California courts adjudicating those claims decide the case on
procedural grounds, and Petitioner is unwilling or unable to show that the
procedural default bars federal review, as occurred here. For those habeas
petitioners filing under AEDPA in the Ninth Circuit, Nevarez is controlling. See,
e.g., Porras v. Biter, 585 Fed. Appx. 675 (9th Cir. 2014) (denying ex post facto
challenge to amended Section 2933.6 based on Nevared); Leal v. Ducart, 584 Fed.
Appx. 861 (9th Cir. 2014) (same); Garcia v. Barnes, 584 Fed. Appx. 562 (9th Cir.
2014) (same).

In short, th's is not a case in which a state actor is subject to grave
uncertainty as to which constitutional rule will govern its conduct on a day-to-day
basis. Cf United States v. Knights, 534 U.S. 112, 116 (2001) (noting conflict
between California Supreme Court and Ninth Circuit on constitutionality of

investigative searches pursuant to common California probation condition). There

32

is no reason for this Court to grant certiorari to review an idiosyncratic and isolated
case in which the state courts decided a case on procedural grounds, no procedural

default defense was raised in federal court, and a single habeas petitioner received

relief as a result.
Ill. PETITIONER OVERSTATES THE DECISION’S IMPACT ON PRISON
ADMINISTRATION.

First, the court of appeals’ decision does not place California prison
authorities in an untenable situation with respect to the issuance of custody credits.
Pet. 27. This Court has made clear that, when it comes to AEDPA, “disagreeing
with the lower federal courts is not the same as ignoring federal law.” Johnson v.
Williams, 138 S. Ct. 1088, 1098 (2013). And while Petitioner suggests that the
court of appeals’ decision “could control the result in future federal civil litigation,”
Pet. 27, this Court’s Section 1983 doctrine proves otherwise. This Court has held
that “when a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpusl,]” not an action under 42 U.S.C. § 1983. Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973). Further, a California inmate will not be
able to recover monetary damages in federal court for an alleged ex post facto
violation because a judgment in his favor “would necessarily imply the invalidity of
his... sentence,” and therefore is not cognizable under Section 1983 “unless the

plaintiff can demonstrate that the . . . sentence has already been invalidated.” Heck

33

v. Humphrey, 512 U.S. 477, 487 (1994). Because of AEDPA and Nevarez, the
typical inmate plaintiff will not be able to make this showing of prior invalidation.
Second, the court of appeals’ decision does not hinder States’ ability to deter
serious in-prison misconduct. Noting that Section 2933.6 was not enacted until
1992, Petitioner raises the specter of being unable to impose credit limitations on
inmates who committed their underlying crimes prior to 1992 and then engage in
an enumerated act of prison misconduct, such as murder, assault, battery, rape, and
hostage-taking. Pet. 28. But of course, all of these acts are criminally punishable,
and no ex post facto principles prevent the state from initiating a new criminal
prosecution to punish and deter such conduct. The maximum SHU term for murder
of a non-inmate is 60 months, with an “expected” term of 48 months. Cal. Code
Regs. tit. 15, § 3341.9(e)(1)(A). The prospect of losing credit-earning status for four
or five years pales in comparison to the criminal penalties for murder -- ranging
from death if special circumstances exist to 15 years to life for second-degree
murder, Cal. Penal Code § 190(a) -- and it is absurd to suggest that the court of
appeals’ decision will permit prison misconduct of this magnitude to go unpunished.
Nor does the court of appeals’ decision prevent the State from effectively
responding to new categories of prison misconduct, such as cell phone usage.
California law has long criminalized possession of contraband, such as weapons and
drugs, by prison inmates. See Cal. Penal Code § 4502 (felony possession of deadly
weapon in penal institution): § 4573.8 (felony possession of drugs or paraphernalia
in prison or jail). California law also prescribes criminal penalties for specified acts

34

of assault, battery, hostage-taking, and criminal damage committed inside prison
walls, in addition to laws of general applicability that may cover such conduct. See
Cal. Penal Code § 4500 (assault by life prisoner with deadly weapon); § 4501
(assault with deadly weapon by prisoner not serving life); § 4501.1 (battery upon
state prison officer or employee); § 4503 (holding hostage within prison), § 4600
(destroying prison property). Since 2008, possession of an unauthorized cell phone
in a California jai/ has been punishable as a misdemeanor. Cal. Penal Code
§ 4575(a). The court of appeals’ decision does not hinder the State's ability to
prosecute an inmate under any of these statutes, without regard to the date on
which the inmate committed his underlying crime.

The State complains that the court of appeals’ decision will diminish the
effectiveness of Section 4576, the 2011 law pertaining to cell phones in prison. Pet.
29-30. But Section 4576, uniquely among all California “offenses by prisoners,” Cal.
Penal Code §§ 4500-4576, establishes a two-tier systein of punishment: while
possession of a cell phone with intent to deliver the phone to an inmate is a
misdemeanor punishable by up to six months in jail, Cal. Penal Code § 4576(a),
possession of a cell phone by an inmate simply subjects the inmate to losing up to 90
days of conduct credits, id. § 4576(c). Section 4576(a) thus initiates a new criminal
misdemeanor prosecution, free of ex post facto problems as long as the cell phone
possession occurred after the statute’s effective date. The State may well prefer
Section 4576(c)’s credit forfeiture provision as an expedient way to punish and deter

cell phone possession by inmates, without the procedural protections of a jury trial

35

and proof beyond a reasonable doubt. But there’s a constitutional catch to such
expedience. the Ex Post Facto Clause prohibits application of the increased credit-
forfeiture provision to inmates who committed their offenses of conviction before the
statute was enacted.

Third, Petitioner argues that it is unworkable to run a prison in which some
inmates earn or forfeit different amounts of custody credit for the same misconduct.
Pet. 28-29. But California already operates a correctional system along these lines.
As a result of Lomax and Mikhail, discussed above, see supra at pp. 29-31, some
inmates could eventually have their forfeited conduct credits restored while others,
who committed the same misconduct, would not be eligible for restoration.
Contrary to the California Supreme Court’s warning in Ramirez that such a system
was “simply infeasible” and detrimental to prison order, 39 Cal. 3d at 937, the sky
did not fall.

Finally, the statutory and regulatory framework that led to Hinojosa’s loss of
custody credits is in flux. On June 3, 2015, the California State Senate passed S.B.
759, a bill that would repeal Section 2933.6’s provision regarding credit-earning
ineligibility and replace it with a requirement that the California Department of
Corrections and Rehabilitation (“CDCR”) establish regulations allowing specified
SHU inmates to resume earning credits. S.B. 759, 2015-2016 Reg. Sess. (Cal.

2015). Respondent also asks this Court to take judicial notice of the settlement in

® The bill is currently pending in the California State Assembly. See
https:/Neginfo. legislature .ca.gov/faces/billStatusClient.xhtm]?bill_id=201520160SB759 (last visited

Feb. 26, 2016).

36

Ashker v. Governor of the State of California, No. 4:09-cv-05796-CW (N.D. Cal.), a
federal civil-rights class action suit brought by SHU inmates regarding CDCR’s
gang management policies and practices, including its use of segregated housing.
In the Settlement Agreement, which received final approval from the district court
on January 26, 2016, CDCR agreed that it “shall not place inmates into a SHU...
solely on the basis of their [gang] validation status.” Ashker, No. 4:09-cv-05796-
CW, Dkt. Nos. 486-3 at 4 J 13 (settlement agreement), 488 (order granting final
approval of class action settlement agreement) (N.D. Cal. 2016). CDCR also agreed
to review the cases of all validated inmates serving indeterminate SHU terms
assessed under prior regulations, and to release from the SHU those inmates who
have not committed a qualifying rule violation with a proven prison gang nexus
within the past two years. /d., Dkt. No. 486-3 at 8 ¥ 25 (settlement agreement).
This Court should decline Petitioner's request to review the conatitutionality of a
sentence determined by a regulatory scheme that Petitioner, as Secretary of CDCR,
is in the process of revamping.

Under amended Section 2933.6, it is SHU placement, and not gang validation
in itself, that triggers statutory ineligibility for custody credits. Even if Section
2933.6 remains on the books, the Ashker settlement means that, going forward,
inmates like Hinojosa will not be precluded from earning custody credits based on
gang validation alone, and amended Section 2933.6 will have no ex post facto effect.

There is no need for this Court to intervene in a situation that is being addressed by

California’s legislative and administrative bodies.

37

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

HILARY POTASHNER
Federal Public Defender

«

DATED: February 29, 2016 Lye bis
GIA *

Deputy Federal Public Defender

Attorneys for Respondent
*Counsel of Record

38

Appendix

Case: 13-56012 colds ID: 9199470 DktEntry: Te) Page: 1 of 45

NO. 13-56012
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTONIO A. HINOJOSA, DC NO. CR 12-965-GAF-MRW
Petitioner-Appellant,
v.

CONNIE GIPSON,
Respondent-Appellee.

APPELLANT’S OPENING BRIEF

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA

HONORABLE GARY A. FEESS
United States District Judge

SEAN K. KENNEDY

Federal Public Defender

GIA KIM

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012-4202
Telephone: (213) 894-4408
Facsimile: (213) 894-0081

Email: gia kim@fd.org

Attorneys for Petitioner-Appellant

la

we

Case: 13-56012 @44 1D: 9199470 DktEntry: iy Page: 22 of 45

Vv. ARGUMENT

Standard of Review
A. Because the California Courts Did Not Decide The Ex Post Facto

Claim on the Merits, This Court Should Review This Claim De
Novo, Without the Deference that AEDPA Requires.

This Court reviews de novo a district court’s denial of a petition for writ of
habeas corpus. Ali v. Hickman, 584 F.3d 1174, 1181 (9th Cir. 2009).

For purposes of federal habeas review, this Court “looks[]through the [state
courts’] summary dispositions to the last reasoned decision.” McNeal v. Adams,
623 F.3d 1283, 1287 (9th Cir. 2010). Although Mr. Hinojosa presented his ex post
facto claim at every level of state habeas review, the California Court of Appeal
and California Supreme Court denied his habeas petitions without comment. (ER
4, 6, 100, 182.) Therefore, the last reasoned decision in this case is the California
Superior Court’s decision on Mr. Hinojosa’s state habeas petition. See id.

Contrary to the magistrate judge’s conclusion, adopted by the district court,
the deferential standards of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) do not apply to Mr. Hinojosa’s ex post facto claim. Under
AEDPA, a petitioner must demonstrate that the state court’s decision “(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 determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d). But this deferential standard of

16

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ID: 9199470 DktEntry: if) Page: 23 of 45

review applies only when the claim “was adjudicated on the merits in State court
proceedings.” Jd. When the state courts did not reach the merits of a particular
claim, “federal habeas review is not subject to the deferential standard [of Section
2254(d)]. Instead, the claim is reviewed de novo.” Cone v. Bell, 556 U.S. 449,
472 (2009).

Mr. Hinojosa presented the ex post facto claim in Ground One of his
Superior Court habeas petition. (ER 18.) Acting pro se, he summarized Ground
One as follows: “The California Legislation Senate Bill-18, enactment of 1/25/10
to forfeited petitioner’s credit earning violated petitioner plea agreement with this
court and the ex post facto constitution.” (ER 18.) In the body of the petition, he
cited both Ex Post Facto Clauses in Article I of the United States Constitution, as
well as Weaver v. Graham, 450 U.S. 24 (1981), and Lynce v. Mathis, 519 U.S. 433
(1997), leading cases on the ex post facto prohibition as applied to custody credits,
and he discussed how those authorities made it unconstitutional to apply amended
Section 2933.6 to his pre-enactment conduct. (ER 22, 25, 39-46.) Mr. Hinojosa
also made clear that he was not challenging the underlying prison gang validation
in this proceeding, as the validation was the subject of a separate state habeas
petition. (ER 21, 34.) In Ground Two, Mr. Hinojosa raised due process arguments
alleging that the application of amended Section 2933.6 violated his plea

agreement. (ER 29, 36, 49-51.)

17

3a

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The Superior Court, in the California courts’ last reasoned decision, never
adjudicated the merits of Mr. Hinojosa’s ex post facto claim. It understood Mr.
Hinojosa’s petition as presenting two claims. The Superior Court considered
“petitioner’s first claim of error,” generally corresponding to Ground Two of the
petition, as arguing that amended Section 2933.6 “violates the terms of petitioner’s
plea agreement and constitutional right to due process.” (ER 1.) It denied this
claim on the merits in a reasoned decision. (ER 2.) The Superior Court
characterized “petitioner’s second claim of error” as follows:

The California Department of Corrections and

Rehabilitation has unlawfully validated petitioner as a

prison gang associate resulting in the retroactive

application of recently amended Penal Code § 2933.6 to

restrict and/or deny petitioner’s eligibility for prison

conduct credit in violation of petitioner’s constitutional

right to due process and the constitutional proscription

against ex post facto legislation.
(ER 2.) It then denied this claim “on grounds petitioner has not sought review of
his claim of error in the proper judicial venue.” (ER 2-3.) Citing the California
Supreme Court’s decision in Griggs v. Superior Court, 16 Cal. 3d 341, 347 (1976),
the Superior Court reasoned that Mr. Hinojosa’s claim of improper gang validation
resulting in the denial of conduct credits “is essentially a challenge to a condition

of confinement that should be properly brought in the superior court of

confinement” -- that is, Kings County instead of Orange County. (ER 3.)

18

4a

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In light of the Superior Court’s bifurcated decision, which emphasized that
its denial of each claim rested on “separate and independent grounds” and
addressed only the plea agreement/due process claim on the merits (ER 2), the
usual presumption of a merits adjudication under Section 2254(d) is either
inapplicable or rebutted. In Harrington v. Richter, 131 S. Ct. 770 (2011), the
Supreme Court held that “[w]hen 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.” /d. at 784-85; see also Johnson v. Williams,
133 S. Ct. 1088, 1096 (2013) (same). Further, “[t]he presumption may be
overcome when there is reason to think some other explanation for the state court’s
decision is more likely.” Richter, 131 S. Ct. at 785. Here, the presumption does
not apply because the Superior Court’s decision indicates that it either
misconstrued Mr. Hinojosa’s ex post facto claim or wrongly denied the claim on
the state-law procedural ground of improper venue, not on the merits. The district
court erred by concluding otherwise. (ER 9-10, 14.)

The most plausible explanation for the Superior Court’s decision is that it
simply misconstrued the nature of Mr. Hinojosa’s ex post facto claim. The
Superior Court understood the ex post facto claim as challenging the lawfulness of
his underlying validation as a prison gang associate, as distinguished from

amended Section 2933.6’s retroactive and disadvantageous effect on his sentence
19

5a

Case: 13-56012 08 ea) 1D: 9199470 DktEntry: ithe Page: 26 of 45

regardless of whether the earlier gang validation was proper. (ER 2-3.) The
Superior Court’s understanding explains why it erroneously considered Mr.
Hinojosa’s challenge to his sentence as “essentially a challenge to a condition of
confinement.” (ER 3.) Yet the gravamen of Mr. Hinojosa’s petition clearly
targeted the new legislation’s retrospective effect on his sentence, as opposed to his
conditions of confinement (ER 18, 22, 25, 39-46), and expressly disavowed any
challenge to the prison gang validation (ER 34). When a state court misconstrues a
federal constitutional claim fairly presented to it, the resulting decision is not
deemed to be an adjudication on the merits. See Henderson v. Cockrell, 333 F.3d
592, 600-01 (Sth Cir. 2003); Davis v. Sec'y for Dept. of Corr., 341 F.3d 1310, 1313
(11th Cir. 2003) (per curiam); Appe/ v. Horn, 250 F.3d 203, 210-12 (3d Cir. 2001).
AEDPA deference is therefore unwarranted.

Second, even if the Superior Court properly construed Mr. Hinojosa’s ex
post facto claim, its procedural ruling was erroneous and cannot bar federal habeas
review. “A federal habeas court will not review a claim rejected by a state court ‘if
the decision of [the state] court rests on a state law ground that is independent of
the federal question and adequate to support the judgment.’” Beard v. Kindler, 558
U.S. 53, 55 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). A
state procedural ground is adequate if it is “firmly established and regularly
followed.” Beard, 558 U.S. at 60 (citation and internal quotation marks omitted).

Here, the Superior Court viewed the ex post facto claim as “essentially a challenge
20

6a

Case: 13-56012 08 7 DP 1D: 9199470 DktEntry: 1443) Page: 27 of 45

to a condition of confinement” that should have been raised in the county of
confinement, not in the county of conviction. But this rule was not firmly
established and regularly followed in California. To the contrary, at the time of the
Superior Court’s decision, a published opinion of the California Court of Appeal
held precisely the opposite, that a habeas petition challenging the denial of custody
credits “is not related to the conditions of . . . confinement” and was properly
brought in the district of conviction. /n re Oluwa, 255 Cal. Rptr. 35, 37 (Cal. Ct.
App. 1989). The existence of a published appellate case refuting the Superior
Court’s conclusion demonstrates that the procedural rule it relied on was
inadequate to foreclose federal habeas review. See Scott v. Schriro, 567 F.3d 573,
581-82 (9th Cir. 2009).

Finally, the Superior Court’s procedural ruling was inadequate for another
reason. The Superior Court paraphrased Griggs’s holding as follows: “Challenges
to conditions of an inmate’s confinement should be entertained by the superior
court of the county wherein the inmate is confined.” (ER 3{citing 16 Cal. 3d at
347].) But what Griggs actually holds is that “[i}f the challenge is to conditions of
the inmate’s confinement, then the petition should be transferred to the superior
court of the county wherein the inmate is confined if that court is a different court
from the court wherein the petition was filed.” /d. (emphasis added). The Superior
Court made no mention of transferring Mr. Hinojosa’s petition and instead simply

denied it. (ER 2-3.) Griggs itself shows that the Superior Court’s disposition of
21

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the ex post facto claim -- denial, instead of transfer -- relied on a procedural rule
that was not firmly established and regularly followed. A state court’s erroneous
denial on procedural grounds means there is no state court decision on the merits,
and the federal court must review the merits de novo. See Scott v. Ryan, 686 F.3d
1130, 1133 (9th Cir. 2012).

For any and all of the foregoing reasons, the ex post facto claim is not
subject to Section 2254(d)’s deferential standard applicable to state-court
adjudications on the merits. This Court’s review is therefore de novo.

Discussion

B. On De Novo Review, This Court Should Grant Habeas Relief
Because the Amendment to Section 2933.6 Violates the Ex Post

Facto Clause.
The Constitution provides that “No State shall . . . pass any . . . ex post facto

Law.” U.S. Const., art. I, § 10, cl. 1; see also id. at art. 1, § 9, cl. 3 (“No Bill of
Attainder or ex post facto Law shall be passed.). Found twice in the Constitution,
the ex post facto prohibition ensures that “legislative Acts give fair warning of
their effect and permit individuals to rely on their meaning until explicitly
changed” and also “restricts governmental power by restraining arbitrary and
potentially vindictive legislation.” Weaver v. Graham, 450 U.S. 24, 28-29 (1981).
Put differently, the Ex Post Facto Clause “places limits on the sovereign’s ability
to use its lawmaking power to modify bargains it has made with its subjects.”
Lynce v. Mathis, 519 U.S. 433, 440 (1997).

22

Case: 13-56012 oooh 4 1D: 9232970 DktEntry: CQ Page: 1of46 (1of 49)

13-56012
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO HINOJOSA,
Petitioner and Appellant,

v.

CONNIE GIPSON, Warden,
Respondent and Appellee.

On Appeal from the United States District Court
for the Central District of California

No. SACV 12-965 GAF (MRW)
Honorable Gary A. Feess, Judge

RESPONDENT-APPELLEE’S BRIEF

KAMALA D. HARRIS
Attorney General of California
JULIE L. GARLAND
Senior Assistant Attorney Genera!
KEVIN VIENNA
Supervising Deputy Attorney General
DAVID DELGADO-RUCCI
Deputy Attorney General
State Bar No. 149090
110 West A Street, Suite 1100
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2223
Fax: (619) 645-2191
Email: David.DelgadoRucci@doj.ca.gov
Attorneys for Respondent and Appellee

9a

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as prison gang members aad are housed in a security housing unit (SHU)
were ineligible to earn credits pursuant to California Penal Code sections
2933 or 2933.5. As a result, Hinojosa, a validated prison gang associate
confined in the SHU, has been ineligible to earn conduct credits since that
date.

C. Habeas corpus proceedings in the California courts

Hinojosa did not file a direct appeal. His actions in the California courts
were limited to the filing of habeas corpus petitions.

Hinojosa’s habeas corpus petition in the Orange County Superior
Court, claiming that application of the credit restrictions violated his plea
agreement and the right to due process, and that the California Department
of Corrections and Rehabilitation (CDCR) incorrectly validated him as a
gang member, resulting in the restrictions on his good time credits was
rejected. The court ruled that there was no violation of the plea agreement
since the plea agreement did not contain an express promise or guarantee
that Hinojosa would earn fifteen percent conduct credit regardless of
subsequent events that might occur while he was serving his sentence, and
that the trial court was not required to inform Hinojosa of the possibility of
future changes to the law that might adversely impact him. The court also

ruled that as to the claim of error in validating him as a gang member,
3

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Hinojosa did not avail himself of the relief he could have by filing a habeas
petition in the county where he was being held. (1 ER 1-3.)

Hinojosa’s subsequent habeas corpus petitions in the California Court
of Appeal and the California Supreme Court, raising this claim, were denied
without comment. (1 ER 4-6.)

Hinojosa filed a federal habeas petition raising his claim. On March
28, 2013, the Magistrate Judge, Honorable Michael R. Wilner, filed a Report
and Recommendation recommending the denial of relief. The report stated:

The Ex Post Facto Clause prohibits the enactment
of a law that punishes an act not punishable at the time
it was committed, or imposes additional punishment
than prescribed when the act was committed. For a law
to violate the ex post facto prohibition, “it must be
retrospective, that is, it must apply to events occurring
before its enactment, and it must disadvantage the
offender affected by it.” Weaver v. Graham, 450 U.S.
24, 29 (1981). A change in the law is disadvantageous if
it is “more onerous than the law in effect on the date of
the offense. Id. at 30-31. A statute that retroactively
revokes previously-awarded credits violates the Ex Post
Facto Clause, as it has “the effect of lengthening [the
prisoner’s] period of incarceration.” Lynce v. Mathis,
519 U.S. 433, 443, 447 (1997) (statute “did more than
simply remove a mechanism that created an opportunity
for early release”) (emphasis in original).

To date, no federal court has found Section 2933.6

to be unconstitutional. See, e.g., Corral v. Gonzalez, No.
CV 12-1315 LJO (SKO), 2013 WL 635933 (E.D. Cal.

Feb. 20, 2013); Smith v. Holland, No. CV 12-1529 BAM,
2012 WL 5387366 (E.D. Cal. Nov. 1, 2012); Munoz v.

4

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members and housed in a security housing unit (SHU) constitutes a violation
of ex post facto principles The statute does not. The decisions of the
California courts are entitled to deference.

ARGUMENT

I. THE CALIFORNIA COURTS ADDRESSED THE CLAIM REGARDING
A VIOLATION OF Ex Post FACTO PRINCIPLES IN REGARDS TO
THE AMENDMENT TO CALIFORNIA PENAL CODE §2933.6.

Respondent first addresses the claim made by Hinojosa that the
California courts’s decisions did not address on the merits the claim of a
violation of ex post facto principles and, therefore, this Court should review
the matter de novo. According to Hinojosa, the trial court had decided two
issues: one regarding a violation of the plea agreement, and the other based on
due process, but never the ex post facto claim. (AOB 16-22.) Hinojosa also
claims that because of this, this Court may address the claim without finding
that Barnes is binding precedent. (AOB at 24.) is wrong. The claim was
addressed by the California courts, and deference under AEDPA is required.

Hinojosa raised two claims in his state habeas corpus petition in the
California Supreme Court. In his petition he argued that the new credit
provisions constituted a violation of ex post facto principles and due process
because it violated his plea agreement. (2 ER 16-27, specifically, 2 ER 22
(title of argument) and 27, section 15.)

1
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The trial court correctly denied that claim. Although it utilized
language that referred to the plea agreement and due process (1 ER 1), its
analysis as to how the new credit provisions did not violate the plea
agreement, by necessity, resolved the ex post facto argument since it
involved the denial of future credits while Hinojosa was in prison and under
the amended state statute. See Johnson v. Williams, U.S. __, 133 S.Ct.
1088, 1096 (2013) (“When a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must presume that the
federal claim was adjudicated on the merits—but that presumption can in
some limited circumstances be rebutted.”’)

Any criticism that the California courts failed to use either express
language with the term “ex post facto” or even cite to the leading Supreme
Court authorities on ex post facto laws lacks merit. State courts are not
required to cite, let alone be aware of, existing United States Supreme Court
precedent “so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per
curiam). Rather, Hinojosa must “show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law

beyond any possibility for fair-minded disagreement.” Richter, 131 S. Ct. at
12

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786-87. He has failed to do so. Here, the result of the denial by the trial
court, and the resultant silent denials in the California Court of Appeal and
California Supreme Court, are entitled to deference, particularly where the

result is not contrary to Supreme Court precedent.

Il. NEVAREZ V. BARNES, 749 F.3D 1124, Is CONTROLLING
PRECEDENT IN THIS CASE. THE CLAIM HERE MUST BE

REJECTED.
The Ninth Circuit, in Barnes, 749 F.3d 1124, found there was no

violation of ex post facto principles due to the amendment of California
Penal Code §2933.6. In Barnes, the petitioner received a twelve-year prison
sentence. Later, while in prison, he was convicted of bringing marijuana
into prison, and received an additional three-year sentence. Afterwards, he
was validated as an associate of the Mexican Mafia prison gang and was
assessed an indeterminate term in the security housing unit. At the time,
California law stated that the petitioner was eligible to earn one day of good
conduct credit for every two days served. Later, California Penal Code
§2933.6 was amended to deny conduct credits for inmates who are housed in
a security housing unit and are validated gang affiliates. After the state
courts denied relief on the claim of a violation of ex post facto principles, the
petitioner went to federal court where he lost as well. The Ninth Circuit held

that the fact that amended California Penal Code §2933.6 applied only
13
l4a

No. 15-833

IN THE
Supreme Court of the United States

JEFFREY BEARD, SECRETARY, CALIFORNIA DEPARTMENT
OF CORRECTIONS AND REHABILITATION,

Petitioner,
Vv.
ANTONIO A. HINOJOSA,

Respondent

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

CERTIFICATE OF SERVICE

I, Gia Kim, a Deputy Federal Public Defender in the Office of the Federal
Public Defender who was appointed as counsel for Respondent under the Criminal
Justice Act, 18 U.S.C. § 3006(A)(b), do swear or declare that on February 29, 2016,
as required by Supreme Court Rule 29, I served the enclosed Motion for Leave to
Proceed in Forma Pauperis and Brief for Respondent in Opposition on each party to
the above proceeding or that party’s counsel, and on every other person required to

be served, by depositing an envelope containing the above documents with Federal

Express for first overnight delivery.

39

The names and addresses of those served are as follows:

Phillip J. Lindsay

State of California

Department of Justice

600 West Broadway, Suite 1800
San Diego, CA 92101

(619) 645-3134

Counsel for Petitioner

I declare under penalty of perjury that the foregoing is true and correct.

Executed on February 29, 2016. | . a

GIA KIM*

Deputy Federal Public Defender
Attorney for Respondent
“Counsel of Record

40

FEDERAL PUBLIC DEFENDER
CENTRAL DISTRICT OF CALIFORNIA
321 EAST 2nd STREET
LOS ANGELES, CALIFORNIA 90012-4202

213-894-2854
213-894-0081 FAX
HILARY L. POTASHNER AMY M. KARLIN
Federal Public Defender Directing Attorney
CHRISTOPHER W. DYBWAD Santa Ana Offic’
Chief Deputy JEFFREY A. AARON
Riverside Office
Direct Dial: (213) 894-4408
February 29, 2016

Office of the Clerk
Supreme Court of the United States
One First Street, North East
Washington, DC 20543

Re: Jeffrey Beard, Secretary, California Department of Corrections and
Rehabilitation, Petitioner v. Antonio A. Hinojosa, Respondent

Supreme Court No. 15-833

Dear Sir/Madam:

Enclosed please find an original and 10 copies of Respondent's (1) Motion for Leave to
Proceed In Forma Pauperis, (2) Brief for Respondent in Opposition, (3) Appendix, and (4)
Certificate of Service.

Also enclosed is a copy of the cover page of the Motion for Leave and the Brief for

Respondent in Opposition. For proof of filing, kindly stamp these pages and return them to us in
the enclosed postage prepaid envelope.

Respectfully submitted,
GIA

Deputy Federal Public Defender
Counsel of Record

Encl.
GK/mb

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0645%3A3. Public record. Not legal advice.