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Nevarez v. Barnes

United States Court of Appeals, Ninth Circuit

April 25, 2014

MANUEL FRANCISCO NEVAREZ, Petitioner-Appellant,
v.
RON E. BARNES, Warden, Respondent-Appellee

Argued and Submitted, San Francisco, California April 8, 2014

Petition for certiorari filed at, 08/13/2014

Page 1125

Appeal fro the United States District Court for the Northern District of California. D.C. No. 3:12-cv-01912-SI. Susan Illston, Senior District Judge, Presiding.

Vicki Marolt Buchanan, Sonoma, California, for Petitioner-Appellant.

Jennifer Gwen Ross, Deputy Attorney General, California Department of Justice, San Francisco, California, for Respondent-Appellee.

Before: Barry G. Silverman, William A. Fletcher, and Jay S. Bybee, Circuit Judges.

OPINION

Page 1126

PER CURIAM:

Manuel Francisco Nevarez appeals from the district court's denial of his habeas petition challenging the application of amended California Penal Code Section 2933.6 against him as a violation of his right against ex post facto application of the law. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2000, Nevarez received a twelve-year prison sentence after being convicted of second-degree robbery. In 2008, Nevarez was convicted of bringing marijuana into prison, and he received an additional three-year sentence. On December 12, 2008, Nevarez was validated as an associate of the Mexican Mafia prison gang and was assessed an indeterminate term in the security housing unit at Pelican Bay State Prison. At the time, California law stated that Nevarez was eligible to earn one day of good conduct credit for every two days served. On January 25, 2010, however, California Penal Code Section 2933.6 was amended to deny conduct credits for inmates who are housed in a security housing unit and are validated gang affiliates:

(a) 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 [sentence reduction conduct] credits pursuant to Section 2933 or 2933.05 during the time he or she is in the Security Housing Unit, ...

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