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Cruz v. Lewis

United States District Court, Ninth Circuit

January 9, 2014

PEDRO CRUZ, Petitioner,
v.
WARDEN G.D. LEWIS, Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

LUCY H. KOH, District Judge.

Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that his constitutional right to be free from ex post facto laws was violated when prison officials applied to him a statute that had been amended as of January 25, 2010, to decrease the time credits he would earn in prison. Respondent was ordered to show cause why the petition should not be granted. Respondent has filed an answer. Petitioner has filed a traverse. Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief, and DENIES the petition.

BACKGROUND

A. Petitioner's Criminal and Prison History

In December 2008, petitioner was validated as an associate of the Mexican Mafia prison gang. (Pet. at 6(2), Resp. ¶ 3.) As a result, petitioner was given an indeterminate term in the Security Housing Unit ("SHU"). ( Id. )

Under state regulations and rules of the California Department of Corrections & Rehabilitation ("CDCR"), an inmate who has been validated and placed in the SHU may be eligible to be reviewed for inactive gang status after six years of non-involvement in gang activity. See Cal. Code Regs. tit. 15, § 3378(e). Once validated, an inmate can also drop out of his prison gang at any time by completing a debriefing process. See Cal. Code Regs. tit. 15, § 3378.1. There is no evidence that petitioner has debriefed or been deemed inactive in the prison gang.

B. Section 2933.6

On January 25, 2010, California Penal Code section 2933.6 was amended as follows: "Notwithstanding any other law, a person who is placed in a Security Housing Unit, Psychiatric Services Unit, Behavioral Management Unit, or an Administrative Segregation Unit for misconduct described in subdivision (b) or upon validation as a prison gang member or associate is ineligible to earn credits pursuant to Section 2933 or 2933.05 during the time he or she is in the Security Housing Unit, Psychiatric Services Unit, Behavioral Management Unit, or the Administrative Segregation Unit for that misconduct." Cal. Penal Code § 2933.6 (emphasis added).

Before section 2933.6 was amended, it was "possible for validated prison gang members placed in [a SHU] to earn conduct credits totaling one-third of their sentences." In re Efstathiou, 200 Cal.App.4th 725, 728 (2011). After the amendment, however, a validated gang member or associate in a SHU could not earn conduct credits. See id. at 732.

C. Application of Section 2933.6

Before section 2933.6 was amended, petitioner earned credits while in the SHU as a validated prison gang associate. Specifically, petitioner was given one day's worth of credit for two days served, and was given a parole date of December 6, 2020. (Pet. at 6(2).) But after section 2933.6 was amended, he was ineligible to earn these credits, and his parole date was recalculated and postponed until November 6, 2021. (Pet. at 6(c).)

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that 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) resulted in a decision that 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).

"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the reasonable application clause, ' a federal habeas court may grant the writ if the state court identifies the correct governing legal ...


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