Manuel Nevarez v. Ron Barnes, 2014 U.S. App. LEXIS 7777

Manuel Nevarez was validated as a Mexican Mafia associate and placed in Pelican Bay’s Security Housing Unit (SHU) in December 2008; he had prior convictions and was serving aggregate prison terms.
Before January 25, 2010, California law allowed him to earn conduct (good-time) credits at a 1-for-2 rate; the credits he had already earned were not forfeited by later changes.
On January 25, 2010, Cal. Penal Code § 2933.6 was amended to make validated prison gang members/associates housed in SHU ineligible to earn conduct credits while so confined.
Nevarez administratively and then judicially challenged application of the amended § 2933.6 as an ex post facto violation because his validation and SHU placement predated the amendment.
State courts denied relief, relying on In re Sampson, which held § 2933.6 punished only ongoing post-enactment misconduct and did not retroactively strip previously earned credits.
The federal district court denied Nevarez’s 28 U.S.C. § 2254 petition; Nevarez appealed and the Ninth Circuit affirmed under AEDPA review.

Issue	Nevarez's Argument	Barnes's Argument	Held
Whether applying amended Cal. Penal Code § 2933.6 to deny conduct credits to a validated gang affiliate whose validation predated the amendment violates the Ex Post Facto Clause	Amendment retroactively removes or diminishes time credits tied to pre- amendment status, increasing punishment in violation of Weaver and Lynce	§ 2933.6 applies prospectively to intervening/ongoing gang affiliation while housed in SHU and does not forfeit preexisting credits, so it is not ex post facto punishment	Affirmed: No unreasonable application of clearly established federal law under AEDPA; the amendment targets prospective, intervening conduct and is factually distinguishable from Weaver and Lynce

Weaver v. Graham, 450 U.S. 24 (1981) (withdrawing earned good-time credits after sentence violated Ex Post Facto Clause)
Lynce v. Mathis, 519 U.S. 433 (1997) (post-conviction reduction of good-time credits violated Ex Post Facto Clause)
Williams v. Taylor, 529 U.S. 362 (2000) (definition of "contrary to" and "unreasonable application" under AEDPA)
Renico v. Lett, 559 U.S. 766 (2010) (AEDPA’s highly deferential standard; unreasonable vs. incorrect application)
Harrington v. Richter, 562 U.S. 86 (2011) (state-court adjudications receive deference where Supreme Court has not squarely decided the issue)
Kansas v. Hendricks, 521 U.S. 346 (1997) (prospective civil confinement law did not raise ex post facto concerns)
Abed v. Armstrong, 209 F.3d 63 (2d Cir. 2000) (distinguishing Weaver and Lynce where prohibition on credits was prospective following gang classification)
In re Sampson, 197 Cal. App. 4th 1234 (2011) (state appellate decision holding § 2933.6 punishes only ongoing post-enactment conduct and does not violate Ex Post Facto Clause)