717 F.3d 678
9th Cir.2013Background
- Biggs was convicted of murder in 1987 and received 25 years to life with parole eligibility.
- Prop. 89 in 1988 added Cal. Const. art. V, § 8(b), granting Governor review over state parole decisions in murder cases.
- Parole board found Biggs suitable in 2005; Governor Schwarzenegger reversed the board’s decision.
- Biggs challenged the retroactive application of § 8(b) under the Ex Post Facto Clause in federal habeas.
- The district court denied relief; the Ninth Circuit affirmed the denial, applying AEDPA standards and reviewing state-court adjudication for reasonableness.
- The controlling issue is whether Rosenkrantz’s application of Garner to § 8(b) was an unreasonable application of clearly established federal law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does retroactive gubernatorial review violate Ex Post Facto? | Biggs argues Rosenkrantz unreasonably applied Garner to § 8(b). | Biggs’ claim relies on as-applied analysis; Rosenkrantz rejected it. | No Ex Post Facto violation; Johnson remains good law and Rosenkrantz reasonable. |
| Was Garner’s as-applied analysis required under clearly established federal law here? | Garner’s as-applied approach should apply to this procedural change. | Garner does not compel as-applied analysis in this procedural context. | Garner’s as-applied requirement not clearly established for this context; Johnson controls. |
| Was Rosenkrantz unreasonably applied under AEDPA given Johnson and Garner? | Rosenkrantz misapplied controlling precedents. | Rosenkrantz aligned with Johnson and Garner’s framework. | Rosenkrantz not an unreasonable application of federal law; decision affirmed. |
| Should the court apply an as-applied analysis despite AEDPA precedents? | Not required; Johnson remains controlling and supports affirmance. |
Key Cases Cited
- Morales v. dep’t of Corr., 514 U.S. 499 (1995) (risk-based analysis for retroactive parole changes; not every change increases punishment)
- Garner v. Jones, 529 U.S. 244 (2000) (as-applied analysis possible; micromanagement caveat; lacks universal scope)
- Rosenkrantz v. California, 59 P.3d 174 (Cal. 2002) (ReJECTION of ex post facto violation; change is procedural")
- Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996) (upheld retroactive §8(b) against Ex Post Facto Clause)
- Mallett v. North Carolina, 181 U.S. 589 (1901) (procedural changes not within Ex Post Facto clause)