Biggs v. Sec'y of the Cal. Dep't of Corr.

• Decision Date: 04 September 2013
• Docket Number: No. 11–18021.,11–18021.
• Citation: 717 F.3d 678
• Parties: Jeffrey J. BIGGS, Petitioner–Appellant, v. SECRETARY OF the CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

717 F.3d 678

Jeffrey J. BIGGS, Petitioner–Appellant,

v.SECRETARY OF the CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondent–Appellee.

No. 11–18021.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 14, 2013.

Filed May 29, 2013.

As Amended on Denial of Rehearing and Rehearing En Banc Sept. 4, 2013.

Ann C. McClintock (argued), Assistant Federal Defender, and Daniel J. Broderick, Federal Defender, Office of the Federal Defender, Sacramento, CA, for Petitioner–Appellant.

Krista L. Pollard (argued), Deputy Attorney General, Kamala D. Harris, Attorney General, Jennifer A. Neill, Senior Assistant Attorney General, Jessica N. Blonien, Supervising Deputy Attorney General, Office of the Attorney General, Sacramento, CA, for Respondents–Appellees.

Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Senior District Judge, Presiding. D.C. No. 2:07–cv–00470–WBS–CKD.

Before: J. CLIFFORD WALLACE, JEROME FARRIS, and JAY S. BYBEE, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

After Jeffrey J. Biggs was convicted of murder and sentenced to twenty-five years to life in prison with the possibility of parole, California amended its constitution to give the Governor authority to review parole-board decisions for prisoners convicted of murder. Cal. Const. art. V, § 8(b). The parole board subsequently found Biggs suitable for parole, but then-Governor Arnold Schwarzenegger reversed the parole board's decision. Biggs claims that retroactive application of the interim change to the California Constitution violates the Ex Post Facto Clause of the U.S. Constitution. U.S. Const. art. I, § 10, cl. 1.

We previously analyzed the constitutionality of the retroactive application of this same provision of the California Constitution in Johnson v. Gomez, where we upheldarticle V, § 8(b) against an Ex Post Facto Clause challenge. 92 F.3d 964, 965–68 (9th Cir.1996). After the Supreme Court's most recent decision in the area, Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), the California Supreme Court also upheld article V, § 8(b) against an Ex Post Facto Clause challenge. In re Rosenkrantz, 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174, 191–201 (2002).

Biggs claims that he is entitled to habeas relief because In re Rosenkrantz unreasonably applied Garner in deciding that retroactive application of article V, § 8(b) did not violate the Ex Post Facto Clause of the U.S. Constitution, and the state court relied exclusively on Rosenkrantz in denying Biggs' Ex Post Facto Clause claim. The district court denied Biggs' habeas petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm.

I

In 1987, Biggs was convicted of murder and sentenced to twenty-five years to life in prison with the possibility of parole.¹ In 1988, California passed Proposition 89, which added section 8(b) to article V of the California Constitution, providing the Governor with authority to review parole-board decisions in any case in which the prisoner had been convicted of murder. SeeCal. Const. art. V, § 8(b) (“No decision of the parole authority of this state with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.”); see also Johnson, 92 F.3d at 965. In 2005, the parole board determined that Biggs was suitable for parole. Exercising the authority granted to him under article V, section 8(b), then-Governor Schwarzenegger reversed the parole board's decision. Biggs unsuccessfully challenged the Governor's decision through state habeas proceedings. The only state-court decision to address Biggs' claim under the Ex Post Facto Clause was the Superior Court's decision, which looked to the prior decision of the California Supreme Court in Rosenkrantz:

The Rosenkrantz court considered at length the question of whether the Governor's review and subsequent reversal of a grant of parole violated the ex post facto clauses of the state and federal Constitutions. The court concluded that there was no ex post facto violation. Accordingly, the petition is denied as to the [ex post facto] claim.

Order of Denial at 7, No. SC–14199A (Cal. App. Dep't Super. Ct. Aug. 22, 2006) (internal citations omitted).

Biggs then filed the instant federal habeas petition. While this federal habeas petition was pending, the parole board again found Biggs suitable for parole, and this time the Governor declined to review the parole board's decision. Biggs was released on parole in August 2010, but the district court ruled that Biggs' release did not render his habeas petition moot. ² The district court denied habeas relief, and Biggs timely appealed.

II

We review a district court's decision to grant or deny a state prisoner's federal habeas petition de novo. Gill v. Ayers, 342 F.3d 911, 917 (9th Cir.2003). Because Biggs filed his federal habeas petition after April 24, 1996,³ the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies. Lindh v. Murphy, 521 U.S. 320, 322, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, we may only grant habeas relief if the adjudication of a claim on the merits in state court resulted in a state-court decision that (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Biggs only challenges the state-court decision under the “unreasonable application” clause of 28 U.S.C. § 2254(d).

Under the “unreasonable application” clause, we may issue the writ “if the state court correctly identifies the governing legal principle from [the Supreme Court's] decisions but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Even if we believe that the state court was incorrect in its application of Supreme Court law, we may not grant the writ unless the state court's application of Supreme Court law was objectively unreasonable. Id.; see also Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785–86, 178 L.Ed.2d 624 (2011). This is true even if the conclusion of the state court is inconsistent with, or even disagrees with, our own decisions. “Because AEDPA limits habeas relief to state decisions that offend clearly established federal law as set by the Supreme Court, a state court decision may not be overturned simply because of a conflict with circuit law.” Ortiz–Sandoval v. Clarke, 323 F.3d 1165, 1172 (9th Cir.2003) (internal quotation marks omitted); see also Marshall v. Rodgers, ––– U.S. ––––, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013) (“[C]ircuit precedent may [not] be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] Court has not announced.”).

III

The Ex Post Facto Clause of the U.S. Constitution prohibits the States from passing any “ex post facto Law.” U.S. Const. art. I, § 10, cl. 1. “In Collins v. Youngblood, ... [the Supreme Court] reaffirmed that the Ex Post Facto Clause incorporated ‘a term of art with an established meaning at the time of the framing of the Constitution.’ ” Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). In Collins, the Court explained the original meaning of the Ex Post Facto Clause: “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” 497 U.S. at 43, 110 S.Ct. 2715. Since Collins was decided, the Court has addressed the bounds of the prohibition on laws that retroactively increase the punishment for criminal acts in two cases related to increased periods between parole hearings: (1) California Department of Corrections v. Morales, decided in 1995, and (2) Garner v. Jones, decided in 2000. Biggs points to these decisions in alleging that the state-court decision in his case, and the California Supreme Court's decision in Rosenkrantz on which it relied, unreasonably applied clearly established federal law.

A

Morales involved a challenge to the retroactive application of a change in the California Penal Code that authorized the parole board to increase the gap between parole suitability hearings for individuals convicted of “more than one offense which involves the taking of a life,” from one year, as previously required, to as long as three years. Morales, 514 U.S. at 503–04, 115 S.Ct. 1597. To justify such an increase, the parole board had to (1) find that it was not reasonable to expect parole to be granted during the years with no hearings, and (2) state its bases for that finding. Id. at 503, 115 S.Ct. 1597.

Morales urged the Court to hold “that the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner's punishment,” including the increase in the gap between parole hearings at issue. Id. at 508, 115 S.Ct. 1597. The Court rejected this approach, noting that under such an approach “the judiciary would be charged under the Ex Post Facto Clause with the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.” Id.

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