FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY J. BIGGS, No. 11-18021
Petitioner-Appellant,
D.C. No.
v. 2:07-cv-00470-
WBS-CKD
SECRETARY OF THE CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted
January 14, 2013—San Francisco, California
Filed May 29, 2013
Before: J. Clifford Wallace, Jerome Farris,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
2 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
SUMMARY*
Habeas Corpus
The panel affirmed the district court’s dismissal of a
28 U.S.C. § 2254 habeas corpus petition challenging a 2006
decision by the Governor of California reversing a 2005
decision by the Board of Parole Hearings finding petitioner
suitable for parole.
After petitioner’s conviction, California amended its
constitution to give the Governor authority to review parole-
board decisions for prisoners convicted of murder. The
California Supreme Court upheld the constitutional
amendment in question, Cal. Const. art. V, § 8(b), against an
Ex Post Facto challenge. In re Rosenkrantz, 59 P.3d 174
(Cal. 2002). Petitioner contended that In re Rosenkrantz
unreasonably applied Garner v. Jones, 529 U.S. 244 (2000),
which involved a similar challenge to a Georgia state law.
The panel held that the state court’s decision was not an
unreasonable application of clearly established federal law.
COUNSEL
Ann C. McClintock (argued), Assistant Federal Defender, and
Daniel J. Broderick, Federal Defender, Office of the Federal
Defender, Sacramento, California, for Petitioner-Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 3
Krista L. Pollard (argued), Deputy Attorney General, Kamala
D. Harris, Attorney General, Jennifer A. Neill, Senior
Assistant Attorney General, Jessica N. Blonien, Supervising
Deputy Attorney General, Office of the Attorney General,
Sacramento, California, for Respondents-Appellees.
OPINION
BYBEE, Circuit Judge:
After Jeffrey J. Biggs was convicted of murder and
sentenced to twenty-five years to life in prison with the
possibility of parole, California amended its constitution to
give the Governor authority to review parole-board decisions
for prisoners convicted of murder. Cal. Const. art. V, § 8(b).
The parole board subsequently found Biggs suitable for
parole, but then-Governor Arnold Schwarzenegger reversed
the parole board’s decision. Biggs claims that retroactive
application of the interim change to the California
Constitution violates the Ex Post Facto Clause of the U.S.
Constitution. U.S. Const. art I, § 10, cl. 1.
We previously analyzed the constitutionality of the
retroactive application of this same provision of the
California Constitution in Johnson v. Gomez, where we
upheld article V, § 8(b) against an Ex Post Facto Clause
challenge. 92 F.3d 964, 965–68 (9th Cir. 1996). After the
Supreme Court’s most recent decision in the area, Garner v.
Jones, 529 U.S. 244 (2000), the California Supreme Court
also upheld article V, § 8(b) against an Ex Post Facto Clause
challenge. In re Rosenkrantz, 59 P.3d 174, 191–201 (Cal.
2002).
4 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
Biggs claims that he is entitled to habeas relief because In
re Rosenkrantz unreasonably applied Garner in deciding that
retroactive application of article V, § 8(b) did not violate the
Ex Post Facto Clause of the U.S. Constitution, and the state
court relied exclusively on Rosenkrantz in denying Biggs’ Ex
Post Facto Clause claim. The district court denied Biggs’
habeas petition. We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. We affirm.
I
In 1987, Biggs was convicted of murder and sentenced to
twenty-five years to life in prison with the possibility of
parole.1 In 1988, California passed Proposition 89, which
added section 8(b) to article V of the California Constitution,
providing the Governor with authority to review parole-board
decisions in any case in which the prisoner had been
convicted of murder. See Cal. Const. art. V, § 8(b) (“No
decision of the parole authority of this state with respect to
the granting, denial, revocation, or suspension of parole of a
person sentenced to an indeterminate term upon conviction of
murder shall become effective for a period of 30 days, during
which the Governor may review the decision subject to
procedures provided by statute. The Governor may only
affirm, modify, or reverse the decision of the parole authority
on the basis of the same factors which the parole authority is
required to consider. The Governor shall report to the
Legislature each parole decision affirmed, modified, or
1
A more detailed account of the facts of Biggs’ crime, his rehabilitation,
and some earlier proceedings can be found in our prior published opinion
regarding Biggs’ habeas proceedings. See Biggs v. Terhune, 334 F.3d
910, 912–13 (9th Cir. 2003), overruled in part by Hayward v. Marshall,
603 F.3d 546, 555 (9th Cir. 2010) (en banc).
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 5
reversed, stating the pertinent facts and reasons for the
action.”); see also Johnson, 92 F.3d at 965. In 2005, the
parole board determined that Biggs was suitable for parole.
Exercising the authority granted to him under article V,
section 8(b), then-Governor Schwarzenegger reversed the
parole board’s decision. Biggs unsuccessfully challenged the
Governor’s decision through state habeas proceedings. The
only state-court decision to address Biggs’ claim under the Ex
Post Facto Clause was the Superior Court’s decision, which
looked to the prior decision of the California Supreme Court
in Rosenkrantz:
The Rosenkrantz court considered at length
the question of whether the Governor’s review
and subsequent reversal of a grant of parole
violated the ex post facto clauses of the state
and federal Constitutions. The court
concluded that there was no ex post facto
violation. Accordingly, the petition is denied
as to the [ex post facto] claim.
Order of Denial at 7, No. SC-14199A (Cal. App. Dep’t Super.
Ct. Aug. 22, 2006) (internal citations omitted).
Biggs then filed the instant federal habeas petition. While
this federal habeas petition was pending, the parole board
again found Biggs suitable for parole, and this time the
Governor declined to review the parole board’s decision.
Biggs was released on parole in August 2010, but the district
court ruled that Biggs’ release did not render his habeas
6 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
petition moot.2 The district court denied habeas relief, and
Biggs timely appealed.
II
We review a district court’s decision to grant or deny a
state prisoner’s federal habeas petition de novo. Gill v. Ayers,
342 F.3d 911, 917 (9th Cir. 2003). Because Biggs filed his
federal habeas petition after April 24, 1996,3 the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies. Lindh v. Murphy, 521 U.S. 320, 322,
327 (1997). Under AEDPA, we may only grant habeas relief
if the adjudication of a claim on the merits in state court
resulted in a state-court decision that (1) 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) was “based on an unreasonable
2
Biggs seeks credit against his term of parole for time he served in
prison due to the Governor’s reversal of the parole board’s 2005
determination that he was suitable for parole. Before the district court, he
asserted that the possibility of such relief militated against mootness.
Citing district-court opinions, the district court stated that whether the
possibility of such relief prevents a parolee’s habeas petition from being
moot depends on whether the term of parole is indeterminate. The district
court explained that parolees who committed their crimes prior to January
1, 1983 face determinate parole terms. On the other hand, parolees who
committed their crimes on or after January 1, 1983 are subject to a revised
version of California Penal Code § 3000.1, under which parolees serve
indeterminate parole terms unless they are released from parole. Because
Biggs committed his murder in September 1981 and his parole term is thus
determinate, the district court held that the possibility of providing relief
by crediting time against Biggs’ parole term prevents Biggs’ petition from
being moot. The State does not raise mootness on appeal, so we do not
consider it.
3
Biggs filed his federal habeas petition on September 20, 2006.
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 7
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d). Biggs
only challenges the state-court decision under the
“unreasonable application” clause of 28 U.S.C. § 2254(d).
Under the “unreasonable application” clause, we may
issue the writ “if the state court correctly identifies the
governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies it to the facts of the
particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002).
Even if we believe that the state court was incorrect in its
application of Supreme Court law, we may not grant the writ
unless the state court’s application of Supreme Court law was
objectively unreasonable. Id.; see also Harrington v. Richter,
131 S. Ct. 770, 785–86 (2011). This is true even if the
conclusion of the state court is inconsistent with, or even
disagrees with, our own decisions. “Because AEDPA limits
habeas relief to state decisions that offend clearly established
federal law as set by the Supreme Court, a state court decision
may not be overturned simply because of a conflict with
circuit law.” Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1172
(9th Cir. 2003) (internal quotation marks omitted); see also
Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (“[C]ircuit
precedent may [not] be used to refine or sharpen a general
principle of Supreme Court jurisprudence into a specific legal
rule that th[e] Court has not announced.”).
III
The Ex Post Facto Clause of the U.S. Constitution
prohibits the States from passing any “ex post facto Law.”
U.S. Const. art. I, § 10, cl. 1. “In Collins v. Youngblood, . . .
[the Supreme Court] reaffirmed that the Ex Post Facto Clause
incorporated ‘a term of art with an established meaning at the
8 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
time of the framing of the Constitution.’” Cal. Dep’t of Corr.
v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v.
Youngblood, 497 U.S. 37, 41 (1990)). In Collins, the Court
explained the original meaning of the Ex Post Facto Clause:
“Legislatures may not retroactively alter the definition of
crimes or increase the punishment for criminal acts.”
497 U.S. at 43. Since Collins was decided, the Court has
addressed the bounds of the prohibition on laws that
retroactively increase the punishment for criminal acts in two
cases related to increased periods between parole hearings:
(1) California Department of Corrections v. Morales, decided
in 1995, and (2) Garner v. Jones, decided in 2000. Biggs
points to these decisions in alleging that the state-court
decision in his case, and the California Supreme Court’s
decision in Rosenkrantz on which it relied, unreasonably
applied clearly established federal law.
A
Morales involved a challenge to the retroactive
application of a change in the California Penal Code that
authorized the parole board to increase the gap between
parole suitability hearings for individuals convicted of “more
than one offense which involves the taking of a life,” from
one year, as previously required, to as long as three years.
Morales, 514 U.S. at 503–04. To justify such an increase, the
parole board had to (1) find that it was not reasonable to
expect parole to be granted during the years with no hearings,
and (2) state its bases for that finding. Id. at 503.
Morales urged the Court to hold “that the Ex Post Facto
Clause forbids any legislative change that has any
conceivable risk of affecting a prisoner’s punishment,”
including the increase in the gap between parole hearings at
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 9
issue. Id. at 508. The Court rejected this approach, noting
that under such an approach “the judiciary would be charged
under the Ex Post Facto Clause with the micromanagement
of an endless array of legislative adjustments to parole and
sentencing procedures.” Id.
The Court asserted that it had “long held that the question
of what legislative adjustments will be held to be of sufficient
moment to transgress the [Ex Post Facto Clause] must be a
matter of ‘degree.’” Id. at 509 (internal quotation marks
omitted). In considering whether a change in law is
constitutional under the Ex Post Facto Clause, courts “must
determine whether [the change] produces a sufficient risk of
increasing the measure of punishment attached to the covered
crimes.” Id.
The Court declined to establish a bright-line rule,
asserting that the change at issue in Morales did not require
the Court to “articulate a single ‘formula’” for identifying
changes in law that produce a sufficient risk of increased
punishment, because the change at issue “create[d] only the
most speculative and attenuated possibility of producing the
prohibited effect of increasing the measure of punishment for
covered crimes, and such conjectural effects are insufficient
under any threshold [the Court] might establish.” Id.
The Court justified this determination by noting that the
change “applie[d] only to a class of prisoners for whom the
likelihood of release on parole is quite remote”—prisoners
convicted of multiple crimes involving the taking of a life, id.
at 510—and that the gap between hearings would only be
increased after the parole board held an initial hearing and
made the requisite findings to delay the next hearing, id. at
511. The Court also noted that, in the case of a prisoner who
10 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
experiences “an unanticipated change that is sufficiently
monumental to alter [the prisoner’s] suitability for release on
parole” after having the gap between hearings increased, the
prisoner might be able to seek an expedited hearing based on
that change. Id. at 512. Finally, the Court noted that actual
release dates often come several years after a finding of
suitability, and thus that the practical effect of the increased
gap between hearings was not significant. Id. at 513.
The Court held that because the change in law created
only “speculative and attenuated risk” of increased
punishment, retroactive application of the law did not violate
the Ex Post Facto Clause. Id. at 514. The Court in Morales
did not base its decision on how the change in law was
actually implemented or applied, but rather considered the
risk of increased punishment for prisoners based on a facial
analysis of the change in law.4
B
Garner also involved a challenge to the retroactive
application of a change in law permitting an extension of the
interval between parole hearings, this time in Georgia.
529 U.S. at 246. Under Georgia law, the parole board was
statutorily required to consider parole for inmates serving life
sentences first after seven years of incarceration; by rule, the
parole board had provided that it would reconsider parole
4
The Court did say that “[t]he California Supreme Court has noted that
about 90% of all prisoners are found unsuitable for parole at the initial
hearing, while 85% are found unsuitable at the second and subsequent
hearings,” Morales, 514 U.S. at 510–11, but these statistics were cited to
support analysis of the legislative intent of the change in law, not to
discuss how the change in law was implemented and the extent to which
the implementation resulted in a risk of increased punishment.
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 11
every three years thereafter. Id. at 247. After the prisoner in
Garner committed his crime, the parole board amended its
rules so that the gap between hearings after the initial hearing
could be as long as eight years. Id.
The prisoner was denied parole in 1995, and the parole
board scheduled the next hearing for 2003, consistent with the
change in its rules. Id. at 247–48. The prisoner brought an
action under the Ex Post Facto Clause, challenging the
retroactive application of the change in law. Id. at 248.
The Court acknowledged that the retroactive application
of certain laws governing parole could unconstitutionally
increase punishment under the Ex Post Facto Clause, id. at
249–50, but noted that Morales “emphasiz[ed] that not every
retroactive procedural change creating a risk of affecting an
inmate’s terms or conditions of confinement is prohibited,”
and that questions about such changes depend on the
“degree” of the risk. Id.
The Court reiterated Morales’s message that “the Ex Post
Facto Clause should not be employed for ‘the
micromanagement of an endless array of legislative
adjustments to parole and sentencing procedures.’” Id. at 252
(quoting Morales, 514 U.S. at 508). “The controlling inquiry
. . . [is] whether retroactive application of the change in . . .
law created ‘a sufficient risk of increasing the measure of
punishment attached to the covered crimes.’” Id. at 250
(quoting Morales, 514 U.S. at 509).
In conducting this risk-based inquiry, derived from
Morales, the Court stated that the change in law at issue had
to be considered in “the whole context of Georgia’s parole
system,” id. at 252, which provides the parole board with
12 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
broad discretion, id. at 252–53. The Court added that
“[w]hether retroactive application of a particular change in
parole law respects the prohibition on ex post facto legislation
is often a question of particular difficulty when the discretion
vested in a parole board is taken into account,” id. at 250,
even though this “discretion does not displace the protections
of the Ex Post Facto Clause,” id. at 253. “The essence of
respondent’s case,” according to the Court, “[was] not that
discretion has been changed in its exercise but that, in the
period between parole reviews, it will not be exercised at all.”
Id. at 254.
The Court, however, rejected this claim because (1) the
parole board maintained discretion as to how often to set
hearings—subsequent hearings would take place “at least
every eight years”; and (2) there were processes in place for
expedited reviews in cases of changed circumstances. Id.
(quoting Ga. Comp. R. & Regs. 473-3-.05(2) (1985)). Given
this continued discretion, the Court suggested that the risk of
increased punishment, at least facially, was not sufficient to
support a violation of the Ex Post Facto Clause. Id. at
254–55.
But the Court’s analysis did not end there. It went on:
When the rule does not by its own terms show
a significant risk, the respondent must
demonstrate, by evidence drawn from the
rule’s practical implementation by the agency
charged with exercising discretion, that its
retroactive application will result in a longer
period of incarceration than under the earlier
rule. . . . In the case before [the Court],
respondent must show that as applied to his
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 13
own sentence the law created a significant risk
of increasing his punishment. This remains
the issue in the case, though the general
operation of the Georgia parole system may
produce relevant evidence and inform further
analysis on this point. . . .
The Court of Appeals’ analysis failed to
reveal whether the amendment . . . , in its
operation, created a significant risk of
increased punishment for respondent.
Respondent claims he has not been permitted
sufficient discovery to make this showing.
Id. at 255–57.
The Court stated that the “matter of adequate discovery”
was one for the lower courts, and accordingly remanded. Id.
at 257. The Court in Garner thus applied the risk-based test
from Morales, but did not stop with facial analysis as in
Morales. Instead, the Court asserted that prisoners could
demonstrate the significance of the risk of increased
punishment through evidence of the implementation of the
change in law, and that the prisoner was entitled to further
discovery to support such a demonstration. It is this Supreme
Court endorsement of an as-applied analysis of the
significance of the risk of increased punishment that Biggs
claims the state court unreasonably applied—or, really, failed
to apply—in his case.
IV
Where, as here, the state’s highest court does not issue a
reasoned decision, we must look to the last reasoned state-
14 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
court decision and then determine if that decision runs afoul
of 28 U.S.C. § 2254(d). Ylst v. Nunnemaker, 501 U.S. 797,
804–06 (1991). As discussed above, the only reasoned state-
court decision with regard to Biggs’ claim under the Ex Post
Facto Clause was the Superior Court’s decision,
which—understandably—relied exclusively on the California
Supreme Court’s decision in Rosenkrantz. Thus, we must
examine Rosenkrantz to determine whether the Superior
Court’s decision unreasonably applied clearly established
federal law.
In Rosenkrantz, the California Supreme Court was faced
with precisely the same question we face: whether retroactive
application of gubernatorial review under article V, § 8(b)
violates the Ex Post Facto Clause of the U.S. Constitution.
59 P.3d at 183. The Rosenkrantz court, analyzing Morales
and Garner, held that California’s scheme did not violate the
Ex Post Facto Clause. Id.
First, the court said that under the ordinary meaning of the
phrase “increased the punishment,” it could not be reasonably
said that the gubernatorial reversal violated the Ex Post Facto
Clause. Id. at 193. The court emphasized that the term of the
petitioner’s sentence was the same before and after the
implementation of review, and that the factors to be
considered in determining whether to grant parole were left
unchanged. Id. “The only change effected . . . is the
institution of an additional level of discretionary review of the
Board’s decision granting or denying parole, resulting merely
in a change in the identity of the entity or official within the
executive branch that may make the ultimate decision on
parole.” Id.
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 15
After pointing out that the Supreme Court had never held
a change in law comparable to the institution of gubernatorial
review of parole decisions to constitute “the type of measure
to which the ex post facto clause applies,” id. at 193–94, the
court explained that the petitioner’s claim had been “squarely
and uniformly rejected by each of the prior California and
federal decisions that have addressed the issue.” Id. at 194.
In support, the court cited our decision in Johnson v. Gomez,
and the California Court of Appeal’s decision in In re
Arafiles, 8 Cal. Rptr. 2d 492 (Ct. App. 1992). Rosenkrantz,
59 P.3d at 194–95.
Rosenkrantz asserted that these cases were inconsistent
with the Supreme Court’s ruling in Garner, which postdated
both decisions. Id. at 196. But the court rejected this
argument, stating that “Garner did not involve a legislative or
constitutional provision even remotely similar to article V,
section 8(b), and nothing in Garner questions either the
validity of the Arafiles and Johnson decisions themselves or
the high court decisions upon which [those decisions] relied.”
Id.
In distinguishing the Ex Post Facto Clause challenge in
Garner from Rosenkrantz’s challenge to the retroactive
application of gubernatorial review, the court emphasized that
in Garner the Supreme Court had “explain[ed] . . . [that t]he
essence of respondent’s case . . . [was] not that discretion
[relating to the grant of parole] has been changed in its
exercise but that, in the period between parole reviews,
[discretion] will not be exercised at all.” Id. at 198 (quoting
Garner, 529 U.S. at 254) (emphasis and internal quotation
marks omitted). Even in this limited situation—where
retroactive application of a change in law results in the parole
board not exercising its discretion at all for a time—the Court
16 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
in Garner rejected the facial Ex Post Facto Clause challenge.
See id. at 198–200 (citing Garner, 529 U.S. at 254–55). But,
the Rosenkrantz court acknowledged, the Court in Garner,
through the language at the end of its opinion, “left open the
possibility that the petitioner in that case could establish on
remand that the new policy permitting the significant
postponement of parole hearing dates should be treated as an
increase in punishment for purposes of the ex post facto
clause.” Id. at 198–99; see Garner, 529 U.S. at 255.
Based on the language at the end of the Garner opinion,
Rosenkrantz contended that “whether the application of
article V, section 8(b), in [his] case . . . violates the ex post
facto clause turns upon whether ‘application [of the
provision] will result in a longer period of incarceration than
under the earlier rule.’” Rosenkrantz, 59 P.3d at 199 (quoting
Garner, 529 U.S. at 255). The Rosenkrantz court said that
such a reading of Garner would mean that “article V, section
8(b)[ ] would violate the ex post facto clause in every case in
which the Governor reverses a Board decision granting
parole.” Id. Moreover, the court said, were Rosenkrantz’s
reading of Garner to be accepted, “virtually any procedural
change in the parole process . . . would fall within the
prohibition of the ex post facto clause in any instance in
which the procedural change resulted in the denial of parole,”
because “in any such case it could be said that application of
the new rule ‘will result in a longer period of incarceration
than under the earlier rule.’” Id. (quoting Garner, 529 U.S.
at 255).
This result, the Rosenkrantz court stated, demonstrates
that such a broad reading of Garner cannot be correct; nor is
it correct even to read Garner to apply to all procedural
changes in law that could affect the duration of prisoners’
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 17
imprisonment. Id. at 199–200. Rather, Garner’s concern
with the impact of a procedural rule in a particular case was
limited to changes of the sort at issue in Garner, and there
was good reason to distinguish that sort of change from the
change at issue in Rosenkrantz:
A revision [like those in Garner and Morales]
that significantly delays the date when the
relevant state authority considers the parole
eligibility of a prisoner is analogous to a
substantive provision increasing the minimum
period of time a defendant must be
imprisoned before parole even may be
considered. (As we have seen, the court in
Garner adverted to this point, explaining that
“[t]he essence of respondent’s case, as we see
it, is not that discretion has been changed in
its exercise but that, in the period between
parole reviews, it will not be exercised at
all.”).
Because a provision that reduces the
frequency of parole hearings is at least
potentially comparable to a provision that
increases the minimum term of a sentence, a
measure that extends the time between parole
hearings is one that reasonably might be
characterized as bringing about an increase in
sentence to which the ex post facto clause
might apply. . . . [T]he court in Garner
determined that when such a provision “does
not by its own terms” create a significant risk
that a prisoner’s sentence will be increased,
the prisoner may establish that application of
18 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
the provision will violate the ex post facto
clause, by demonstrating through “evidence
drawn from the rule’s practical
implementation . . . that [the rule’s]
retroactive application will result in a longer
period of incarceration than under the earlier
rule.” There is nothing in Garner, however,
suggesting that this standard was intended to
apply to a provision, unlike a measure
reducing the frequency of parole hearings,
that cannot reasonably be viewed as falling
within the category of legislative measures
that increase the punishment for a crime.
Id. (quoting Garner, 529 U.S. at 254–55).
The Rosenkrantz court went on to reiterate that “[t]he
only change made by article V, section 8(b), is the institution
of a new level of review of parole decisions.” Id. at 200.
“[T]he opinions of the United States Supreme Court make it
clear that this type of change in procedure is not the type of
change addressed by the ex post facto clause,” and Garner
does not question these decisions. Id.
One of the Supreme Court cases cited by the court in
support of this position—one of the cases the court said
Garner did not question—is Mallett v. North Carolina,
181 U.S. 589 (1901). In Mallet, two defendants convicted in
a state criminal trial had succeeded in having their
convictions overturned on appeal in favor of a new trial. Id.
at 590. At the time of the commission of the defendants’
offense and at the time of their trial, the State had no right to
appeal such a decision under state law, but by the time the
defendants won their appeal, the state law had changed, and
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 19
the State appealed the reversal and order for a new trial. Id.
The state supreme court sustained the State’s appeal,
remanding for execution of the original guilty verdict, id., and
the defendants appealed to the Supreme Court, arguing that
their rights had been violated under the Ex Post Facto Clause,
id. at 592. Citing to a line of cases that distinguished
“procedural” changes in law—to which the Ex Post Facto
Clause did not apply—from the changes in law to which the
Ex Post Facto Clause was applicable, the Supreme Court
rejected the defendants’ claim. Id. at 593–97. Though
Collins subsequently dismissed the notion that laws could be
ruled outside the purview of the Ex Post Facto Clause merely
because they had been labeled as “procedural” and overruled
certain prior Supreme Court cases that applied that type of
analysis, 497 U.S. at 45–52, Collins did not overrule Mallett
even though it identified Mallett as a case that applied the
type of analysis being dismissed, id. at 45.
The Rosenkrantz court described the Supreme Court’s
Mallett decision as holding that “the type of procedural
provision involved in that case—i.e., the addition of a new
level of review of a decision favorable to a criminal defendant
that could work to the defendant’s detriment . . . —was not
the type of procedural change that fell within the aegis of the
ex post facto clause.” Rosenkrantz, 59 P.3d at 194. Since the
Rosenkrantz court concluded that the change in question—
like the change in Mallett—was not the type of procedural
change addressed by the ex post facto clause, it asserted that
the nature of the implementation of gubernatorial review was
20 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
irrelevant, and Rosenkrantz’s Ex Post Facto Clause claim had
no merit. Id. at 200–01.5
V
Biggs essentially makes one argument: that it was an
unreasonable application of clearly established federal law for
the Rosenkrantz court to conclude that the introduction of
gubernatorial review of parole decisions was not the type of
change addressed by the Ex Post Facto Clause and thus not
the type of change to which the as-applied “significant risk”
test endorsed in Garner must be applied, and that it was
therefore an unreasonable application of clearly established
federal law for the state court in Biggs’ case to rely
exclusively on Rosenkrantz.6 We disagree.
5
The Rosenkrantz court noted at the outset that Rosenkrantz was not in
the best position to challenge gubernatorial review because the parole
board had, left to its own devices, concluded that Rosenkrantz was not
suitable for parole. 59 P.3d at 191. It was only after a California court
found that the parole board’s decision was not supported by evidence and
ordered the parole board to grant parole under the threat of contempt that
the parole board did so. Id. The court said: “Accordingly, from a realistic
perspective, petitioner cannot maintain persuasively that in this instance
article V, section 8(b), has resulted in the denial of parole of an individual
whom the Board, in the exercise of its independent judgment, has
determined is suitable for parole.” Id. The court’s decision on
Rosenkrantz’s Ex Post Facto Clause challenge, however, did not turn on
this unique factual circumstance. Immediately following the discussion
of Rosenkrantz’s unique circumstance, the court said that “[t]he flaw in
petitioner’s ex post facto claim . . . is not confined to the particular
circumstances of this case.” Id.
6
Biggs also argues that it was unreasonable for the Superior Court to
rely on the Rosenkrantz decision in his case because of factual differences
between the two cases. Particularly, Biggs argues that it was unreasonable
for the state court to rely on Rosenkrantz because, as discussed above, see
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 21
A
We are not writing on a blank slate. We previously held
in Johnson v. Gomez that article V, § 8(b) does not violate the
Ex Post Facto Clause. 92 F.3d at 967. In Johnson, we
reviewed relevant Supreme Court decisions on the Ex Post
Facto Clause, including Calder v. Bull, 3 U.S. (3 Dall.) 386
(1798); Mallett, 181 U.S. 589; Collins, 497 U.S. 37; and the
then-recent decision in Morales, 514 U.S. 499. 92 F.3d at
966–67. Johnson argued that the gubernatorial review
provision had “the purpose and effect of . . . lengthen[ing]
prison terms by making it more difficult for convicted
murderers with indeterminate sentences to be released on
parole.” Id. at 967. We rejected this argument. We observed
that “the law itself is neutral inasmuch as it gives the
governor power to either affirm or reverse a [parole board]’s
granting or denial of parole.” Id. The law “simply removes
the final parole decisionmaking authority from the [parole
board] and places it in the hands of the governor.” Id. This
change in California law, we concluded, could not be
“materially distinguish[ed]” from the change in law at issue
in Mallett. Id.; see also Rosenkrantz, 59 P.3d at 200 & n.9
(reaching a similar conclusion). We thus concluded that the
supra note 5, the parole board only found Rosenkrantz suitable for parole
after ordered to do so by the court, not based on its own independent
review. This argument is a non-starter. First, it is hard to construe this as
a cogent argument under 28 U.S.C. § 2254(d). The Superior Court surely
did not violate clearly established federal law by following a California
Supreme Court decision that was materially on all fours factually.
Second, the Rosenkrantz court specifically said its decision was not
limited to cases where the parole board had not found the prisoner suitable
for parole based on its own independent review, see supra note 5, so this
factual distinction does not raise questions about reliance on Rosenkrantz.
22 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
gubernatorial review process did not violate the Ex Post Facto
Clause. Johnson, 92 F.3d at 967.
We decided Johnson in the year AEDPA became
effective, and our decision was not constrained by AEDPA.
Our decision in Johnson was thus a straight-up decision on
the constitutionality of article V, § 8(b) under the Ex Post
Facto Clause. That makes it a far more powerful judgment
than if we had merely opined under AEDPA that the
California courts had not violated clearly established
Supreme Court precedent.
But it is also true that we decided Johnson before the
Supreme Court issued its decision in Garner. Under our law-
of-the-circuit rule, we are bound by Johnson unless it is
“clearly irreconcilable” with intervening Supreme Court
precedent. See Miller v. Gammie, 335 F.3d 889, 899–900
(9th Cir. 2003) (en banc). Accordingly, we must determine
whether our decision in Johnson is clearly irreconcilable with
Garner, and particularly with Garner’s apparent endorsement
of as-applied analysis.7 If so, we must “reject [Johnson] as
7
In Johnson, in addition to the arguments discussed above, we
suggested that there was no Ex Post Facto Clause violation because (1) it
could not be said “with certainty” that Johnson’s sentence was increased
by the gubernatorial reversal; and (2) Johnson was unable to demonstrate
that an increase in punishment “actually occurred.” 92 F.3d at 967. This
language might be read to suggest that more certainty was required than
the “sufficient” or “significant” risk contemplated in Garner. Garner,
529 U.S. at 250, 255–57. But we cannot say that Johnson is “clearly
irreconcilable” with Garner on this basis given that Garner did not alter
the level of certainty required by Morales, see 514 U.S. at 509; see also
Himes v. Thompson, 336 F.3d 848, 855 n.4 (9th Cir. 2003) (analyzing an
AEDPA-governed Ex Post Facto Clause claim under Morales, but noting
that “our analysis is also consistent with Garner v. Jones”), and that the
Johnson court was interpreting Morales. Unless we believe Johnson is
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 23
having been effectively overruled;” if not, we are bound by
Johnson. Id. at 900.
Nothing in Garner signals that it is a change in the
Court’s approach. It does not overrule or even question any
prior Ex Post Facto Clause decisions, and it cites extensively
to Morales. See Himes, 336 F.3d at 855 n.4. Quoting
Morales, Garner emphasized that “the Ex Post Facto Clause
should not be employed for ‘the micromanagement of an
endless array of legislative adjustments to parole and
sentencing procedures.’” 529 U.S. at 252 (quoting Morales,
514 U.S. at 508). The Court declared that this remained an
“important concern[ ].” Id.
On its face, the language in Garner regarding the as-
applied inquiry tells us nothing about the scope of its
applicability. Garner certainly does not say that this as-
applied analysis must be conducted even with regard to
changes in law that have historically been considered outside
the reach of the Ex Post Facto Clause. See Rosenkrantz,
59 P.3d at 198–201 (discussing Garner). As Rosenkrantz
cogently explained, the Supreme Court’s 1901 decision in
Mallett is still good law—in fact, it was explicitly considered
by the Court in Collins but left undisturbed while other cases
were overruled—and Mallett strongly suggests that the type
of change in law at issue here cannot yield cognizable Ex
Post Facto Clause claims. Id. at 200 & n.9; see also id. at
194. To the extent the Garner opinion includes language that
can be interpreted as being relevant to the scope of
applicability of the as-applied requirement, that language
otherwise clearly irreconcilable with Garner, which, as we explain later
in this Section V.A, we do not, we cannot, as a three-judge panel, decide
that Johnson misinterpreted Morales.
24 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
suggests a limited scope. Particularly, the Court asserted that
“[t]he essence of respondent’s case . . . [was] not that
discretion has been changed in its exercise but that, in the
period between parole reviews, it will not be exercised at all.”
Garner, 529 U.S. at 254. The Rosenkrantz court’s reading of
this statement as indicative of the Court drawing a line
between changes in law that are “potentially comparable to a
provision that increases the minimum term of a sentence” and
changes in law that are not comparable to such a provision is
quite reasonable. See Rosenkrantz, 59 P.3d at 200.
Biggs can only point to the Court’s suggestion in Garner
that “[w]hen the rule does not by its own terms show a
significant risk, the [petitioner] must demonstrate, by
evidence drawn from the rule’s practical implementation by
the agency charged with exercising discretion, that its
retroactive application will result in a longer period of
incarceration than under the earlier rule.” 529 U.S. at 255.
But, as discussed above, the scope of applicability of this
suggestion is entirely unclear. Other than this suggestion,
Garner was just following Morales. Johnson, which applied
Morales, is thus not “clearly irreconcilable” with Garner on
account of our failure in Johnson to conduct as-applied
analysis. See Miller, 335 F.3d at 900. Johnson remains good
law.
B
Even though Johnson remains good law, we could
potentially be bound to hold that Garner clearly established
a requirement of as-applied analysis in a case like Biggs’ case
if a prior decision by a panel of our court had so held.
Though our panel opinions do not themselves constitute
“clearly established Federal law” for AEDPA purposes, we
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 25
would be bound to respect a panel holding that the
requirement of as-applied analysis is clearly established
Supreme Court law in a given context, just like we would be
bound to respect any other panel holding. See Rodgers,
133 S. Ct. at 1450 (asserting that, for purposes of determining
the extent of “clearly established Federal law,” “an appellate
panel may, in accordance with its usual law-of-the-circuit
procedures, look to circuit precedent to ascertain whether it
has already held that the particular point in issue is clearly
established by Supreme Court precedent”); Chambers v.
McDaniel, 549 F.3d 1191, 1199 (9th Cir. 2008); see also
Miller, 335 F.3d at 899–900. We cannot elevate our own
precedent “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that
th[e] Court has not announced,” Rodgers, 133 S. Ct. at 1450,
but we would owe deference to a clear on-point holding that
as-applied analysis is required under clearly established
federal law in this context.
We have discussed Garner’s requirement of as-applied
analysis in various contexts, including, most notably, in two
AEDPA-governed habeas cases where we granted habeas
relief based on the petitioners’ Ex Post Facto Clause
challenges to the retroactive application of changes to
Oregon’s parole system.
In Himes v. Thompson, we considered an AEDPA-
governed habeas challenge to the retroactive application of
two changes to Oregon’s parole regulations: (1) a change in
the list of factors to be considered in deciding whether there
was “aggravation” such that rerelease should be denied after
a prior revocation of parole, and (2) a change in the possible
reincarceration periods resulting from a denial of rerelease
based on an “aggravation” finding. 336 F.3d at 855–64. We
26 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
held that retroactive application of these two changes, taken
together, created a sufficient risk of increased punishment
that the state court’s decision that there was no Ex Post Facto
Clause violation was an unreasonable application of clearly
established Supreme Court law, and accordingly we granted
the habeas petition. Id. at 863–64. Our analysis, however,
was explicitly facial in nature. Id. at 855 n.5 (“Because we
hold that the risk of increased punishment is facially
apparent, we do not consider [an as-applied claim].”).
Moreover, we specifically said that, though our opinion was
“consistent with Garner,” we were not applying Garner
because “[p]re-Garner principles . . . compel[led] the
resolution of th[e] case.” Id. at 855 n.4.
In Brown v. Palmateer, we considered an AEDPA-
governed habeas challenge to the retroactive application of a
change to an Oregon statute that altered the method and
standard for the parole board’s consideration of postponing a
prisoner’s parole date based on psychological issues.
379 F.3d 1089, 1094–96 (9th Cir. 2004). In discussing the
“significant risk” test established by Morales, we said that
“[t]he Supreme Court teaches us to examine the retroactive
statute both on its face and in real-world practice,” citing the
language at the end of the Garner opinion. Id. at 1095 (citing
Garner, 529 U.S. at 255). We added that “[w]e ha[d]
previously stated that in the absence of a disadvantage that
affects prisoners in general, ‘an individual will satisfy the
detriment requirement if he shows that it can ‘be said with
assurance’ that he would have received less severe
punishment under the prior scheme,’” quoting our decision in
Nulph v. Faatz, which predates both Morales and Garner. Id.
(quoting Nulph v. Faatz, 27 F.3d 451, 456 (9th Cir. 1994)).
We then held that the change in law facially violated the Ex
Post Facto Clause. Id. (“When compared in toto with the pre-
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 27
1993 version of § 144.125(3), the post-1993 statute creates a
significant risk that prisoners will face longer periods of
incarceration. . . . The new standard gives the Board
the discretion to find that a prisoner is a danger to the
community despite the contrary conclusions of a
psychological/psychiatric evaluation. This creates a
‘sufficient risk’ of increased punishment to constitute
violation of the Ex Post Facto Clause.”). Applying Nulph, we
added that “[h]ad the Board applied the pre-1993 version of
the statute, . . . [i]t can ‘be said with assurance’ that Brown
would have had a shorter period of incarceration.” Id.
(quoting Nulph, 27 F.3d at 456) (internal quotation marks
omitted).
Though we discussed Garner in granting habeas petitions
in AEDPA-governed cases in Himes and Brown, in neither
case did we hold that the as-applied analysis endorsed in
Garner is required under clearly established law in a context
like Biggs’ case. First, we did not even hold that Garner’s
as-applied analysis was required under clearly established law
for changes in law like the changes at issue in Himes and
Brown. In Himes, our analysis was facial in nature and we
specifically asserted that we were not applying Garner.
336 F.3d at 855 nn.4–5. In Brown, though we said that the
Supreme Court teaches us to consider the “significant risk”
test both “on its face and in real-world practice,” we only
considered that test facially. 379 F.3d at 1095. We added
that it could “be said with assurance” that Brown would have
had a shorter period of incarceration under the prior version
of the statute, but in making this statement about the as-
applied impact of the retroactive application of the new
version of the statute, we were applying Nulph, not the
“significant risk” test. See id. Second, even if we had held
that Garner’s as-applied analysis was required under clearly
28 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
established law for changes in law like the changes at issue in
Himes and Brown, that would not be binding here, given the
nature of the change in law at issue. The change in law at
issue here, unlike the changes at issue in Himes and Brown,
is a purely procedural change to the manner in which parole
decisions are made. Moreover, the change in law at issue
here implicates Mallett; the changes at issue in Himes and
Brown did not. A holding that as-applied analysis is required
under clearly established federal law for a change in law like
the change at issue in Himes or Brown, if such a holding
existed, could be—and should be—distinguished with regard
to the change in law at issue here.
Other cases where we have discussed Garner fall short of
holding that as-applied analysis is required under clearly
established federal law, in Biggs’ case or otherwise. In Scott
v. Baldwin, a habeas challenge was brought concerning the
retroactive application of a change in Oregon law that
resulted in fewer parole-board reviews for inmates labeled as
dangerous offenders. 225 F.3d 1020, 1021–23 (9th Cir.
2000). The case was not governed by AEDPA. See id. We
noted the Supreme Court’s endorsement of as-applied
analysis in Garner, but stated that “Scott’s argument is
limited to a facial challenge of the rule,” and thus that “any
argument that the practical implementation of the rule
disadvantages Scott is not before us.” Id. 1022 at n.5.
Because Scott was not governed by AEDPA, our discussion
of Garner’s endorsement of as-applied analysis could not
amount to a conclusion that such analysis is required under
clearly established federal law under 28 U.S.C. § 2254(d)(1).
Moreover, any such conclusion would be dicta given that no
as-applied challenge was before us. Further, even if there
were a holding that as-applied analysis is required under
clearly established federal law, we would not be bound by
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 29
such a holding here given the different context, as discussed
above in regard to Himes and Brown.
In Moor v. Palmer, we rejected, under AEDPA, an Ex
Post Facto Clause challenge to the retroactive application of
a law broadening the requirement of psychological review as
a precondition for parole. 603 F.3d 658, 662–66 (9th Cir.
2010). After concluding that Moor had failed to demonstrate
a facial Ex Post Facto Clause violation, we noted Garner’s
endorsement of as-applied analysis. Id. at 666. We asserted,
however, that “Moor expressly argue[d] that further
factfinding [wa]s unnecessary, choosing to rest his ex post
facto claim on a facial challenge to the statute.” Id. Even if
we were to construe Moor as asserting that Garner clearly
established a requirement of as-applied analysis in some
cases, we would not be bound here because, as in Scott: (1)
that assertion would be dicta given that no as-applied
challenge was before us, and (2) even if it were a holding, we
would not be bound by that holding given the different
context.
Finally, in Gilman v. Schwarzenegger, we said that the
plaintiffs could succeed on their Ex Post Facto Clause claim
through an evidentiary demonstration that retroactive
application of the change in law in question would result in
increased incarceration time, citing Garner. 638 F.3d 1101,
1106 (9th Cir. 2011). But Gilman was a § 1983 case, id. at
1105, and thus contained no holding about clearly established
federal law.
Thus, because none of our cases discussing Garner hold
that as-applied analysis is required by clearly established
federal law, we have no reason not to follow Johnson.
30 BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB.
C
Our Johnson decision undermines Biggs’ argument that
Rosenkrantz, and thus the Superior Court’s opinion in his
case, unreasonably applied clearly established federal law.
As we have noted, under AEDPA, a bare conflict between a
state-court decision and our precedent does not mean that the
state-court decision is an unreasonable application of clearly
established federal law; a state-court decision does not have
to yield to our decision unless our decision itself rests on
clearly established Supreme Court precedent. See Rodgers,
133 S. Ct. at 1450–51. But when a state court decision is
consistent with our precedent, our precedent must be taken as
persuasive evidence that the state-court decision is correct;
more importantly, when a state court’s application of
Supreme Court law is the same as our application, our
precedent must be accepted as conclusive proof that the state-
court decision is not an “unreasonable application of[ ]
clearly established Federal law, as determined by the
Supreme Court,” 28 U.S.C. § 2254(d)(1), unless we are
prepared to “reject [our precedent] as having been effectively
overruled.” Miller, 335 F.3d at 900. As discussed above, we
see no reason to reject or not follow Johnson, so we cannot
conclude that the state court here unreasonably applied
Supreme Court law in coming to the same conclusion we
reached in Johnson for materially congruent reasons.
Moreover, even if we were not bound by Johnson, for
largely the same reasons that Johnson is not clearly
irreconcilable with Garner, Rosenkrantz is not an
unreasonable application of clearly established federal law
under Garner. The lack of clarity in Garner itself pervades
both inquiries. Garner tells us nothing about the scope of the
applicability of any requirement of as-applied analysis, so,
BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 31
just as we could not say that Johnson is clearly irreconcilable
with Garner, we cannot say that the state court unreasonably
applied Garner in Biggs’ case.
It is true that “the lack of a Supreme Court decision on
nearly identical facts does not by itself mean that there is no
clearly established federal law,” Rodgers, 133 S. Ct. at 1449
(citing Yarborough v. Alvardo, 541 U.S. 652, 664 (2004)), but
there is more than a mere factual distinction here. Mallett is
implicated here where it was not in Garner; and, as the
Rosenkrantz court reasonably asserted, the change in law at
issue here is distinguishable from the changes in law at issue
in Garner and Morales and indistinguishable from the change
at issue in Mallett. Whether or not the language in Garner
can be interpreted as broadly requiring as-applied analysis or
not, there is no question that it can reasonably be interpreted
as requiring no such analysis in the present case. Thus, even
in the absence of Johnson, we would find no AEDPA
violation here.
VI
The Supreme Court did not clearly establish in Garner
that an as-applied analysis of the significance of the risk of
increased punishment is required with regard to the
retroactive application of a change in law like California’s
gubernatorial review of parole board decisions. The
California Supreme Court’s decision in Rosenkrantz was thus
not an unreasonable application of clearly established federal
law, and neither was the Superior Court’s decision in Biggs’
case that relied on it.
AFFIRMED.