Alfred Villa v. Michael Knowles

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED VILLA,
Petitioner - Appellant,
v.
MICHAEL KNOWLES,
Respondent - Appellee.
No. 09-15202
D.C. No. 5:03-cv-04766-JW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted February 8, 2010
San Francisco, California
Before: GOODWIN, BERZON, and IKUTA, Circuit Judges.
Petitioner Alfred Villa (“Petitioner”) appeals the denial of his Petition for
Writ of Habeas Corpus. We have jurisdiction under 28 U.S.C. § 2253. We reverse
and remand.
FILED
APR 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Petitioner pled guilty in California Superior Court to eighteen felony counts
related to molesting a minor. The court applied Section 2933.1 of the California
Penal Code to limit the credits Petitioner can earn towards his sentence for counts
one through fifteen, which qualify as violent felonies under Section 667.5 of the
California Penal Code. However, the felony complaint alleged that counts one
through thirteen occurred before Section 2933.1's operative date of September 21,
1994, and alleged that counts fourteen and fifteen occurred “[o]n or about and
between December 24, 1993 and December 23, 1999.”
The district court concluded that applying Section 2933.1 to crimes
committed before its operative date violates the Ex Post Facto Clause and is
contrary to, or an unreasonable application of, clearly established federal law.
However, the district court further concluded that Petitioner waived any Ex Post
Facto Clause objections in exchange for a less-than-maximum sentence. Petitioner
argues to this court that he did not waive such objections; Respondent does not
challenge the district court’s Ex Post Facto Clause violation conclusion, but argues
that Petitioner waived the objection.
The record is clear that Petitioner pled guilty without a plea bargain. There
is no basis for concluding that Petitioner’s less-than-maximum sentence was
bargained for in exchange for waiving his Ex Post Facto Clause rights. Thus,

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Petitioner did not waive his right to challenge his sentence as a violation of the Ex
Post Facto Clause.
Respondent also argues that Petitioner waived any Ex Post Facto Clause
objections because he did not raise such objections at his sentencing hearing.
However, Petitioner never expressly waived the Ex Post Facto Clause objections,
nor can waiver be inferred from the statements at sentencing. Additionally, the
state court addressed and rejected the argument that Petitioner waived his Ex Post
Facto Clause challenges because he did not object at sentencing. Thus, Plaintiff
did not waive his rights.
Because the district court concluded that Petitioner waived any Ex Post
Facto Clause challenge, the district court did not reach whether Petitioner’s rights
were violated with respect to counts fourteen and fifteen. The California Court of
Appeal concluded that the evidence shows that count fourteen occurred after
Section 2933.1’s effective date. Petitioner concedes to this Court that Section
2933.1 may be applied to counts fourteen and fifteen. This issue will be before the
district court on remand.
REVERSED AND REMANDED.

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