Joe Loredo v. CONNIE GIPSON, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE LOREDO,
Petitioner - Appellant,
v.
CONNIE GIPSON, Warden,
Respondent - Appellee.
No. 13-16283
D.C. No. 1:13-cv-00250-LJO-
BAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted March 15, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Joe Loredo appeals the district court’s denial of his federal habeas petition.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(c). We affirm.
FILED
MAR 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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1. The state court’s conclusion that the 2010 amendment to California
Penal Code § 2933.6 does not violate the Ex Post Facto Clause was not contrary to
clearly established federal law, as determined by the Supreme Court of the United
States. See 28 U.S.C. § 2254(d)(1); Nevarez v. Barnes, 749 F.3d 1124, 1128–29
(9th Cir. 2014) (per curiam) (holding that the Supreme Court’s ex post facto
precedents do not clearly establish that amended Section 2933.6 violates the Ex
Post Facto Clause).1
2. Nor was the state court’s decision “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). The state court made no factual findings in
determining that amended Section 2933.6 does not violate the Ex Post Facto
Clause. Therefore, the state court’s determination was a legal conclusion governed
1 In Hinojosa v. Davey, 803 F.3d 412 (9th Cir. 2015), a habeas case in which
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) did not
apply, we held that under Ninth Circuit authority amended Section 2933.6 violates
the Ex Post Facto Clause. Id. at 416, 425. Here, unlike in Hinojosa, AEDPA
applies. Therefore, we ask only whether the state court’s decision was “contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);
see Nevarez, 749 F.3d at 1127. Hinojosa did not address this question and does
not control our analysis. See Hinojosa, 803 F.3d at 418 (“If AEDPA applies here,
we are bound by our decision in Nevarez . . . .”); see also Lopez v. Smith, 135 S.
Ct. 1, 2 (2014) (per curiam) (emphasizing that AEDPA “prohibits the federal
courts of appeals from relying on their own precedent to conclude that a particular
constitutional principle is ‘clearly established’”).
-2-

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by 28 U.S.C. § 2254(d)(1), not a factual determination governed by 28 U.S.C.
§ 2254(d)(2). See Lopez v. Smith, 135 S. Ct. 1, 5 (2014) (per curiam) (holding that
legal conclusions are properly analyzed under § 2254(d)(1), not § 2254(d)(2)).
3. The state court’s conclusion that amended Section 2933.6 does not
violate the terms of Loredo’s plea agreement was not objectively unreasonable
under 28 U.S.C. § 2254(d).2 “Plea agreements are construed in accordance with
state law.” Doe v. Harris, 640 F.3d 972, 975 (9th Cir. 2011) (internal quotation
marks omitted). Under California law, “the plea agreement will be deemed to
incorporate and contemplate not only the existing law but the reserve power of the
state to amend the law or enact additional laws for the public good and in
pursuance of public policy.” Doe v. Harris, 302 P.3d 598, 600 (Cal. 2013)
(internal quotation marks omitted). Loredo’s plea agreement thus incorporated and
contemplated California’s power to amend the law governing his eligibility for
conduct credits. Therefore, California did not breach Loredo’s plea agreement by
amending Section 2933.6 and restricting his ability to earn conduct credits as a
validated gang member.
2 Although the record does not include Loredo’s plea agreement, Loredo’s
federal habeas petition includes representations about the contents of his plea
agreement and the circumstances of its negotiation. Appellee has not challenged
these representations, and we accept them as true for purposes of this appeal.
-3-

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AFFIRMED.
-4-

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