Hinojosa v. Davey

• Decision Date: 25 September 2015
• Docket Number: No. 13–56012.,13–56012.
• Citation: 803 F.3d 412
• Parties: Antonio A. HINOJOSA, Petitioner–Appellant, v. Dave DAVEY, Acting Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

803 F.3d 412

Antonio A. HINOJOSA, Petitioner–Appellant

v.Dave DAVEY, Acting Warden, Respondent–Appellee.

No. 13–56012.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2015.

Filed Sept. 25, 2015.

Gia Kim (argued), Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender, Office of the Federal Public Defender, Los Angeles, CA, for Petitioner–Appellant.

Pamela B. Hooley (argued), Deputy Attorney General; Kamala D. Harris, Attorney General; Julie L. Garland, Senior Assistant Attorney General; Kevin Vienna, Supervising Deputy Attorney General; David Delgado–Rucci, Deputy Attorney General, Office of the Attorney General of California, San Diego, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. 8:12–cv–00965–GAF–MRW.

Before: FERNANDEZ, FISHER, and BEA, Circuit Judges.

OPINION

BEA, Circuit Judge:

Prison gangs threaten the safety and security of prisons and prisoners. California has sought to combat these threats—and punish prison-gang affiliation—by segregating prison-gang members and associates from the general prison population. To that end, California houses prison-gang members and associates in Security Housing Units (SHUs), maximum-security facilities in which prisoners are kept in solitary confinement for over 22 hours a day.

California also encourages good behavior among its prisoners with good-conduct credits that reduce prisoners' sentences. Most prisoners earn credits on a one-to-one basis—for one day of good conduct, they earn one day of credit. So, a prisoner who behaves well can potentially cut his sentence in half. But prisoners can also lose credits, or their credit-earning status can change, based on misconduct. Until 2010, prison-gang members and associates housed in SHUs earned credits at a reduced three-to-one rate. But California amended its penal code in 2010 to modify the credit-earning status of prison-gang members and associates in segregated housing. Those prisoners can no longer earn any credits, regardless their conduct. The amendment thus causes prison-gang members and associates housed in SHUs to serve a longer portion of their prison sentences than they would have under the old regime, effectively increasing their sentences. The issue here is whether the 2010 amendment violates the Ex Post Facto Clause of the United States Constitution when applied to a prisoner whose underlying criminal offense was committed before that amendment's enactment. We conclude it does.

I

In 2003, petitioner-appellant Antonio A. Hinojosa pleaded guilty in California superior court to first-degree robbery (to which he admitted a firearm enhancement) and participation in criminal-street-gang activity. He was sentenced to 16 years of imprisonment.

In 2009, Hinojosa was “validated” as a “prison-gang associate” and transferred to the SHU at Corcoran.¹ Validation is the process by which inmates are classified as prison-gang members or associates.² Once validated, a 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.” Cal.Code Regs. tit. 15, § 3341.5(c)(2)(A)(2) (2009). At the time Hinojosa was validated, there were two ways validated prison-gang members and associates could get out of the SHU. The first is going “inactive.” An inactive inmate is one who has not been involved in prison-gang activity for a minimum of six years. Id. § 3378(e) (2009). Once deemed inactive, the prison's Departmental Review Board may authorize an inmate's transfer out of the SHU, but that decision is discretionary. See id. § 3341.5(c)(5) (2009). The Board “is authorized to retain an inactive gang member or associate in a SHU based on the inmate's past or present level of influence in the gang, history of misconduct, history of criminal activity, or other factors indicating that the inmate poses a threat to other inmates or institutional security.” Id. The second way to get out of the SHU is to “debrief”—what some prisoners might describe as “snitch.”³ The process has two steps: an interview phase and an observation phase. Id. § 3378.1(a) (2009). 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 [his] gang involvement, which is then verified by staff for completeness and accuracy.”

Id. § 3378.1(b) (2009). In the observation phase, inmates are observed for up to twelve months in segregated housing with other inmates undergoing the debriefing process. Id. § 3378.1(c) (2009).⁴

Under the version of California Penal Code § 2933.6 in effect at the time of Hinojosa's 2003 conviction and 2009 validation, he was eligible to earn good-conduct credits while housed in the SHU, albeit at a rate lower than prisoners housed in the general population. See Cal.Penal Code § 2933.6(a), (b) (2009) ; In re Efstathiou, 200 Cal.App.4th 725, 728, 133 Cal.Rptr.3d 34 (2011). But effective January 25, 2010, § 2933.6 was amended to eliminate accrual of credits for inmates, such as Hinojosa, who had been transferred to the SHU upon validation as a prison-gang member or associate. See Cal.Penal Code § 2933.6(a), (b) (2010). The amendment did not revoke any credits Hinojosa earned before the effective date of the amendment; it prevented him from accruing any further custody credits while housed in the SHU. As a result of this change in credit-earning status, Hinojosa's minimum release date was extended one year, from September 27, 2015, to September 27, 2016.

After exhausting his administrative remedies, Hinojosa filed a petition for writ of habeas corpus in the Superior Court of California challenging the application of amended § 2933.6 to change his credit-earning status. As recounted by the superior court, Hinojosa presented two claims:

1. The California Department of Corrections and Rehabilitation's retroactive application of recently amended Penal Code § 2933.6 to restrict and/or deny petitioner's eligibility for prison conduct credit violates the terms of petitioner's plea agreement and constitutional right to due process.

2. 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.

The superior court addressed these two claims separately, providing “separate and independent grounds” for denying each. As to the first claim, the superior court held that Hinojosa's plea agreement did not “contain an express promise or guarantee” regarding his credit-earning status and thus that the application of amended § 2933.6 to Hinojosa did not violate the terms of his plea agreement or violate due process. As to the ex post facto claim, the superior court denied it “on grounds [Hinojosa] ha[d] not sought review of his claim of error in the proper judicial venue.” The superior court denied his petition.

Hinojosa petitioned the California Court of Appeal and then the Supreme Court of California for a writ of habeas corpus, raising the same claims. Both courts denied his petitions without opinions.

Hinojosa then filed pro se a petition for writ of habeas corpus in the United States District Court for the Central District of California. In his petition, he claimed (1) application of amended § 2933.6 to change his credit earning status violated the Ex Post Facto Clause, and (2) ineffective assistance of counsel for failing to inform him of the chance he would lose his credit-earning status. In his report and recommendation, Magistrate Judge Michael R. Wilner analyzed those claims under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), and recommended denial of Hinojosa's petition. As to the ex post facto claim, Magistrate Judge Wilner concluded the California Superior Court had not unreasonably applied federal law in denying Hinojosa's claim

because the change in California law neither caused a prisoner to lose earned credits nor punished a prisoner for past conduct. Rather, the statute serves to prevent an inmate from earning additional credits based on his “continued status as an active gang member or associate”: an inmate may rectify this by dropping out of the gang and cooperating with prison officials.

Magistrate Judge Wilner rejected Hinojosa's ineffective-assistance-of-counsel claim because “no reasonable criminal defense attorney could be faulted for failing to anticipate and advise a client about a future change in the law governing prison credits.”

District Judge Gary A. Feess adopted Magistrate Judge Wilner's report and recommendation in full, denied Hinojosa's petition, and dismissed the action with prejudice. Judge Feess denied Hinojosa's request for a certificate of appealability as to either of his claims. Hinojosa timely petitioned us for a certificate of appealability, which we granted only as to “whether the 2010 amendment to California Penal Code § 2933.6, which deprives a prisoner of a future opportunity to earn an earlier release, violates the Ex Post Facto Clause.” This appeal followed. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c).

II

We review de novo the district court's denial of a petition for a writ of habeas corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004). And we review de novo the district court's determination that AEDPA applies to a petitioner's claim. See id. at 965.

III

Hinojosa is not the first California prisoner to challenge amended § 2933.6 under the Ex Post Facto Clause. In Nevarez v. Barnes, 749 F.3d 1124 (9th Cir.), cert. denied sub nom. Nevarez v. Ducart, ...