Nevarez v. Barnes

An amended law that requires a reduction of time credits as a consequence of intervening misconduct by an inmate who was previously eligible for time credits does not raise ex post facto issues.

While serving a fifteen-year prison sentence, Manuel Francisco Nevarez (“Nevarez”) was validated as a member of a prison gang. Nevarez was then relocated to a security housing unit for an indeterminate term. At the time he was relocated, Nevarez was eligible to earn one day of good conduct credit for every two days served while in the security housing unit. During Nevarez’s time in the security housing unit, California Penal Code § 2933.6 was amended to end accrual of time credits for inmates who have been validated as gang affiliates and who are housed in security housing units. Nevarez retained his previously earned credits but did not accrue any more after the amendment became effective. Nevarez filed an administrative claim alleging that Section 2933.6 infringed on his constitutional rights via the Ex Post Facto Clause. Failing to win on that claim, Nevarez petitioned the superior court for a writ habeas corpus. The superior court denied the petition. Nevarez appealed that decision. The appellate and state Supreme Court denied the appeal. Nevarez then filed a writ of habeas corpus in federal district court. The district court denied the petition but granted a certificate of appealability. The Ninth Circuit affirmed the district court’s denial of a writ of habeas corpus because the state court’s denial of relief was not an unreasonable application of the law. The panel held that denial was not unreasonable because the law applies only to intervening, ongoing gang conduct and does not require forfeiture of previously earned time credits. Therefore the state court’s decision does not violate the Ex Post Facto Clause and is upheld. AFFIRMED.