Watson v. Estelle

• Decision Date: 06 October 1988
• Docket Number: No. 87-6599,87-6599
• Parties: Charles Denton WATSON, Petitioner-Appellee, v. Wayne ESTELLE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 105

859 F.2d 105

Charles Denton WATSON, Petitioner-Appellee, v. Wayne ESTELLE, Respondent-Appellant.

No. 87-6599.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1988.

Decided Oct. 6, 1988.

Carol Slater Frederick, Deputy Atty. Gen. of State of Cal., Los Angeles, Cal., for respondent-appellant.

Donald Specter, Prison Law Office, San Quentin, Cal., for petitioner-appellee.

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

Before GOODWIN and HALL, Circuit Judges, and MARQUEZ, ^* District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Respondent-appellant Wayne Estelle, Warden ("Estelle"), appeals the judgment granting a writ of habeas corpus to petitioner-appellee Charles Denton Watson ("Watson"). The district court had jurisdiction pursuant to 28 U.S.C. Sec. 2254. We have jurisdiction pursuant to 28 U.S.C. Secs. 1291 & 2253, and we affirm.

I

In 1971, Watson was convicted of seven counts of murder and one count of conspiracy to commit murder for his participation in the Tate-LaBianca murders as part of the Manson family. His death sentence was modified to life imprisonment when the California Supreme Court invalidated the death penalty.

In 1977, California's Determinate Sentencing Law ("DSL") became effective. As enacted, the DSL contained a provision obligating the Board of Prison Terms ("Board") to conduct annual parole hearings for all indeterminately sentenced prisoners, such as Watson. ¹ This provision was retroactive, putting Watson in the same position he would have occupied "if annual review were in effect at the time [he] committed his offense." In re Jackson, 39 Cal.3d 464, 470, 216 Cal.Rptr. 760, 763, 703 P.2d 100, 103 (1985). In 1982, California amended the DSL to create "an exception to the annual parole suitability hearing requirement." Id. at 467, 216 Cal.Rptr. at 761, 703 P.2d at 101. This exception authorizes the Board to wait up to three years (rather than one year) between parole hearings for inmates convicted of more than one "offense which involves the taking of a life." Cal. Penal Code Sec. 3041.5(b)(2)(B). A subsequent amendment also permits a two year interval between hearings as to any prisoner without regard to the offense. Cal. Penal Code Sec. 3041.5(b)(2)(A). In either case, the Board may delay the parole hearings only if it "finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding." These changes have been codified at subsection 3041.5(b)(2) of the California Penal Code. (For convenience, we will refer to clauses 3041.5(b)(2)(A) & (B) as "subsection 3041.5(b)(2)," even though that subsection contains other operative language not relevant to this appeal.)

In 1983, the Board delayed Watson's parole hearings for the maximum three year period authorized by subsection 3041.5(b)(2). In response, Watson sought a writ of habeas corpus in state court. The state trial court granted the writ on ex post facto grounds and was affirmed by the California Court of Appeal. The California Supreme Court then decided Jackson, which rejected an ex post facto clause challenge to subsection 3041.5(b)(2). Upon reconsideration in light of Jackson, the California Court of Appeal reversed the trial court's decision to grant the writ. The state supreme court declined review.

Having exhausted his state remedies, Watson filed the present habeas petition in the district court. The district court adopted the magistrate's recommendations and entered judgment granting the petition and issuing the writ. The writ does not order Watson's release, but instead orders the Board to hold annual parole hearings. From this judgment, Estelle appeals.

II

We review a district court's decision to grant or deny a petition for a writ of habeas corpus de novo, but review the magistrate's findings of fact and their adoption by the district court for clear error. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).

This appeal is governed by Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), in which the Supreme Court held that "two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it," id. at 29, 101 S.Ct. at 964 (footnotes omitted). This appeal raises only the second prong of Weaver, ² inquiring whether Watson has been "disadvantaged" within the meaning of the ex post facto clause.

This prong is satisfied if the reduction in the frequency of parole hearings "makes more burdensome the punishment for [the] crime." Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925). In contrast, "no ex post facto violation occurs if a change does not alter 'substantial personal rights,' but merely changes 'modes of procedure which do not affect matters of substance.' " Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (citations omitted). Ultimately, the inquiry hinges on whether the challenged law increases "the quantum of punishment attached to the crime," Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). ³ "The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer." Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937).

The case law, however, fails to provide specific guidelines governing the inquiry into whether the new law "worsens conditions imposed by its predecessor," Weaver, 450 U.S. at 33, 101 S.Ct. at 966, in violation of the ex post facto clause. See Dobbert, 432 U.S. at 292, 97 S.Ct. at 2298 ("Our cases have not attempted to precisely delimit the scope of [the phrase 'ex post facto'], but have instead given it substance by an accretion of case law."). Nevertheless, the recent cases indicate that in determining whether a new penal law makes a sentence more burdensome the ex post facto clause requires us to take a realistic view focusing on the expectations of the prisoner. More specifically, it seems that the cases are highly skeptical of the constitutionality of alterations of penal laws that adversely affect the potential duration of actual physical incarceration, either at sentencing or by making it more difficult for prisoners to earn early release.

Weaver, which involved "gain time credits," is the most analogous of the recent Supreme Court cases. There, existing law had provided for reductions of the sentences of prisoners for good conduct. The amount of the reduction, or "gain time credit," was determined according to a statutory formula. Although the statute provided for additional discretionary gain time, prisoners whose conduct conformed to the statutory requirements earned a specific amount of gain time spelled out by the formula. Weaver arose when the state replaced the formula with a less generous method of calculating gain time and attempted to apply it retroactively to prisoners who had earned gain time under the old formula.

Without dissent, the Supreme Court prohibited the application of the new method to prisoners who had earned gain time pursuant to the old formula. The six-Justice opinion of the Court evinces a broad approach that seeks to assess the prisoner's expectations realistically rather than to apply technical doctrinal requirements. See 450 U.S. at 32-34, 101 S.Ct. at 966-67. For example, the Court thought it relevant that "a prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed." See id. at 32, 101 S.Ct. at 966. The Court also quoted an earlier case that "found 'no distinction between depriving a prisoner of the right to earn good conduct deductions and the right to qualify for, and hence earn, parole. Each ... materially "alters the situation of the accused to his disadvantage." ' " Id. at 34, 101 S.Ct. at 967 (citations omitted). The two concurrences, although unfavorably disposed toward the ex post facto challenge, acknowledged (one explicitly, one tacitly) that the Court's realistic approach mandated a holding that the new statute was more onerous than the old.

Rodriguez v. United States Parole Commission, 594 F.2d 170 (7th Cir.1979), is in line with Weaver and involved facts closely analogous to those presented here. The petitioner in Rodriguez was convicted and sentenced in early 1977 for crimes committed in 1974 and 1975. Rodriguez had been sentenced to a maximum term of two years in prison under a statute that made him immediately eligible for parole. At the time Rodriguez committed his crimes, the parole regulations required that the parole board hold a parole hearing for prisoners sentenced under that statute at the one-third point of their sentence, in addition to a much earlier, initial hearing at which few prisoners were ever granted parole. After Rodriguez committed his crimes, the parole regulation was revised, eliminating the one-third hearing requirement and replacing it with one that preserved the initial hearing and called for additional review hearings to be held not less frequently than 18 months after the initial hearing. The Seventh Circuit held that the ex post facto clause prohibited the Parole Commission from applying the new law to Rodriguez.

Estelle seeks to distinguish Rodriguez, arguing that the Seventh Circuit upheld the ex post facto challenge "not simply because [the new regulation] changed the frequency of parole hearings, but because in the case of prisoners with short sentences like Rodriguez the regulation denied them all opportunity for release on parole prior to the expiration of their maximum...