United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
RICHARD SEEBORG, District Judge.
Petitioner seeks federal habeas relief from the application of a state law which may prevent him from earning conduct credits. For the reasons set forth below, the petition for such relief is DENIED.
In 1996, petitioner was convicted in state court of driving with disregard for the safety of others while fleeing a police officer. In 2001, he was convicted for assault and weapon possession. He is serving a term of 18 years in state prison. During his incarceration, he was validated as a member of a prison gang, consequent to which he was placed in the Secured Housing Unit ("SHU") of Pelican Bay State Prison for an indeterminate term.
In 2010, amendments to California Penal Code § 2933.6 rendered certain prison gang members and associates, such as petitioner, ineligible for various time credits. Before the 2010 amendment, "it was apparently possible for validated prison gang members placed in an [administrative segregation unit] to earn conduct credits totaling one-third of their sentences." In re Efstathiou, 200 Cal.App.4th 725, 728 (Cal.Ct.App. 2011). As grounds for federal habeas relief, petitioner claims that the application of California Penal Code § 2933.6 to him violates the Ex Post Facto Clause.
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 (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
I. Ex Post Facto
Petitioner claims that the application of the amended statute to his sentence violates the Ex Post Facto Clause. The state superior and appellate courts, sitting in habeas review of this claim, did not agree, and rejected the claim on the merits, citing In re Sampson, 197 Cal.App.4th 1234 (Cal.Ct.App. 2011). (Pet., Exs. 1 & 2.) The state supreme court summarily denied petitioner's application for habeas relief. ( Id., Ex. 3.)
"To fall within the ex post facto prohibition, a law must be retrospective - that is, it must apply to events occurring before its enactment' - and it must disadvantage the offender affected by it, '... by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations omitted). A change in the law does not violate the Ex Post Facto Clause if it creates only a speculative and attenuated possibility of increased punishment. California Dept. ...