Antonio A. Hinojosa v. DAVE DAVEY, Acting Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO A. HINOJOSA,
Petitioner-Appellant,
v.
DAVE DAVEY, Acting Warden,
Respondent-Appellee.
No. 13-56012
D.C. No.
8:12-cv-00965-
GAF-MRW
OPINION
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
June 2, 2015—Pasadena, California
Filed September 25, 2015
Before: Ferdinand F. Fernandez, Raymond C. Fisher,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea

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HINOJOSA V. DAVEY 2
SUMMARY*
Habeas Corpus
Reversing a judgment of the district court and remanding
with instructions to grant a writ of habeas corpus, the panel
held that a 2010 amendment to the California Penal Code that
modified the credit-earning status of prison-gang members
and associates in segregated housing, and effectively
increased their sentences, violates the Ex Post Facto Clause
of the United States Constitution when applied to a prisoner
whose underlying criminal offense was committed before that
amendment’s enactment.
The panel held that it was not bound by AEDPA because
no state court decided the petitioner’s ex post facto claim “on
the merits.”
COUNSEL
Gia Kim (argued), Deputy Federal Public Defender; Sean K.
Kennedy, Federal Public Defender, Office of the Federal
Public Defender, Los Angeles, California, for Petitioner-
Appellant.
Pamela B. Hooley (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General; Julie L. Garland, Senior
Assistant Attorney General; Kevin Vienna, Supervising
Deputy Attorney General; David Delgado-Rucci, Deputy
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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HINOJOSA V. DAVEY 3
Attorney General, Office of the Attorney General of
California, San Diego, California, for Respondent-Appellee.
OPINION
BEA, Circuit Judge:
Prison gangs threaten the safety and security of prisons
and prisoners. California has sought to combat these
threats—and punish prison-gang affiliation—by segregating
prison-gang members and associates from the general prison
population. To that end, California houses prison-gang
members and associates in Security Housing Units (SHUs),
maximum-security facilities in which prisoners are kept in
solitary confinement for over 22 hours a day.
California also encourages good behavior among its
prisoners with good-conduct credits that reduce prisoners’
sentences. Most prisoners earn credits on a one-to-one
basis—for one day of good conduct, they earn one day of
credit. So, a prisoner who behaves well can potentially cut his
sentence in half. But prisoners can also lose credits, or their
credit-earning status can change, based on misconduct. Until
2010, prison-gang members and associates housed in SHUs
earned credits at a reduced three-to-one rate. But California
amended its penal code in 2010 to modify the credit-earning
status of prison-gang members and associates in segregated
housing. Those prisoners can no longer earn any credits,
regardless their conduct. The amendment thus causes prison-
gang members and associates housed in SHUs to serve a
longer portion of their prison sentences than they would have
under the old regime, effectively increasing their sentences.
The issue here is whether the 2010 amendment violates the

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HINOJOSA V. DAVEY 4
Ex Post Facto Clause of the United States Constitution when
applied to a prisoner whose underlying criminal offense was
committed before that amendment’s enactment. We conclude
it does.
I
In 2003, petitioner–appellant Antonio A. Hinojosa
pleaded guilty in California superior court to first-degree
robbery (to which he admitted a firearm enhancement) and
participation in criminal-street-gang activity. He was
sentenced to 16 years of imprisonment.
In 2009, Hinojosa was “validated” as a “prison-gang
associate” and transferred to the SHU at Corcoran.1
Validation is the process by which inmates are classified as
prison-gang members or associates.2 Once validated, a prison-
1 After this appeal was filed, the California Penal Code was amended to
replace the term “prison gang” with “Security Threat Group,”
bureaucratese that is otherwise known by the abbreviation “STG.” As
such, Hinojosa is no longer a “prison-gang associate” but an “STG
associate.” For the purposes of this opinion, however, we use the old
terminology, which is more accurate here, as STGs may include groups
other than prison gangs. The Code also distinguishes between prison-gang
members and associates; that distinction is irrelevant to our analysis.
2 For an inmate to be validated as a prison-gang associate, the California
Department of Corrections and Rehabilitations must recognize at least
three reliable, documented bases (“independent source criteria items”) for
concluding that the inmate’s background, person, or belongings indicate
his active association with other validated prison-gang members or
associates. See Cal. Code Regs., tit. 15, § 3378.2(b). At least one of those
bases must constitute a direct link to a current or former validated prison-
gang member or associate. Id. The evidence presented against Hinojosa
consisted of an envelope upon which was written the name of another
validated prison-gang associate, a birthday card with gang symbols in it,

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HINOJOSA V. DAVEY 5
gang member or associate “is deemed to be a severe threat to
the safety of others or the security of the institution and will
be placed in a SHU for an indeterminate term.” Cal. Code
Regs. tit. 15, § 3341.5(c)(2)(A)(2) (2009). At the time
Hinojosa was validated, there were two ways validated
prison-gang members and associates could get out of the
SHU. The first is going “inactive.” An inactive inmate is one
who has not been involved in prison-gang activity for a
minimum of six years. Id. § 3378(e) (2009). Once deemed
inactive, the prison’s Departmental Review Board may
authorize an inmate’s transfer out of the SHU, but that
decision is discretionary. See id. § 3341.5(c)(5) (2009). The
Board “is authorized to retain an inactive gang member or
associate in a SHU based on the inmate’s past or present level
of influence in the gang, history of misconduct, history of
criminal activity, or other factors indicating that the inmate
poses a threat to other inmates or institutional security.” Id.
The second way to get out of the SHU is to “debrief”—what
some prisoners might describe as “snitch.”3 The process has
two steps: an interview phase and an observation phase. Id.
§ 3378.1(a) (2009). In the interview phase, the inmate must
provide staff with “information about the gang’s structure,
activities and affiliates,” as well as “a written autobiography
of [his] gang involvement, which is then verified by staff for
completeness and accuracy.” Id. § 3378.1(b) (2009). In the
observation phase, inmates are observed for up to twelve
photographs of Hinojosa’s gang-related tattoos, and a report from an
institutional gang investigator. Hinojosa does not challenge his validation
as a prison-gang associate.
3 In his petition in district court, Hinojosa asserted that inmates who
choose to debrief put themselves and their families in jeopardy of
retaliation by other gang members. That may be, but it does not affect our
analysis.

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HINOJOSA V. DAVEY 6
months in segregated housing with other inmates undergoing
the debriefing process. Id. § 3378.1(c) (2009).4
Under the version of California Penal Code § 2933.6 in
effect at the time of Hinojosa’s 2003 conviction and 2009
validation, he was eligible to earn good-conduct credits while
housed in the SHU, albeit at a rate lower than prisoners
housed in the general population. See Cal. Penal Code
§ 2933.6(a), (b) (2009); In re Efstathiou, 200 Cal.App.4th
725, 728 (2011). But effective January 25, 2010, § 2933.6
was amended to eliminate accrual of credits for inmates, such
as Hinojosa, who had been transferred to the SHU upon
validation as a prison-gang member or associate. See Cal.
Penal Code § 2933.6(a), (b) (2010). The amendment did not
revoke any credits Hinojosa earned before the effective date
of the amendment; it prevented him from accruing any further
custody credits while housed in the SHU. As a result of this
change in credit-earning status, Hinojosa’s minimum release
date was extended one year, from September 27, 2015, to
September 27, 2016.
After exhausting his administrative remedies, Hinojosa
filed a petition for writ of habeas corpus in the Superior Court
4 After briefing of this appeal concluded, California amended its
regulations to introduce a third means by which validated prison-gang
members and associates can get out of the SHU: the Step Down Program.
See Cal. Code Regs. tit 15, § 3378.3(a) (2015). The Step Down Program
is “an incentive based multi-step process for the management of [prison-
gang] affiliates . . . designed to monitor affiliates and assist with transition
for return to [the] general population.” Id. Like debriefing, completing the
Step Down Program is a lengthy process that does not entail immediate
restoration of a prisoner’s credit-earning status. See id. §§ 3000,
3341.5(c)(5), 3378.3 (2015). The addition of the Step Down Program to
the regulations does not change our analysis.

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HINOJOSA V. DAVEY 7
of California challenging the application of amended
§ 2933.6 to change his credit-earning status. As recounted by
the superior court, Hinojosa presented two claims:
1. The California Department of Corrections
and Rehabilitation’s retroactive application of
recently amended Penal Code § 2933.6 to
restrict and/or deny petitioner’s eligibility for
prison conduct credit violates the terms of
petitioner’s plea agreement and constitutional
right to due process.
2. The California Department of Corrections
and Rehabilitation has unlawfully validated
petitioner as a prison gang associate resulting
in the retroactive application of recently
amended Penal Code § 2933.6 to restrict
and/or deny petitioner’s eligibility for prison
conduct credit in violation of petitioner’s
constitutional right to due process and the
constitutional proscription against ex post
facto legislation.
The superior court addressed these two claims separately,
providing “separate and independent grounds” for denying
each. As to the first claim, the superior court held that
Hinojosa’s plea agreement did not “contain an express
promise or guarantee” regarding his credit-earning status and
thus that the application of amended § 2933.6 to Hinojosa did
not violate the terms of his plea agreement or violate due
process. As to the ex post facto claim, the superior court
denied it “on grounds [Hinojosa] ha[d] not sought review of
his claim of error in the proper judicial venue.” The superior
court denied his petition.

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HINOJOSA V. DAVEY 8
Hinojosa petitioned the California Court of Appeal and
then the Supreme Court of California for a writ of habeas
corpus, raising the same claims. Both courts denied his
petitions without opinions.
Hinojosa then filed pro se a petition for writ of habeas
corpus in the United States District Court for the Central
District of California. In his petition, he claimed
(1) application of amended § 2933.6 to change his credit
earning status violated the Ex Post Facto Clause, and
(2) ineffective assistance of counsel for failing to inform him
of the chance he would lose his credit-earning status. In his
report and recommendation, Magistrate Judge Michael R.
Wilner analyzed those claims under the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d),
and recommended denial of Hinojosa’s petition. As to the ex
post facto claim, Magistrate Judge Wilner concluded the
California Superior Court had not unreasonably applied
federal law in denying Hinojosa’s claim
because the change in California law neither
caused a prisoner to lose earned credits nor
punished a prisoner for past conduct. Rather,
the statute serves to prevent an inmate from
earning additional credits based on his
“continued status as an active gang member or
associate”: an inmate may rectify this by
dropping out of the gang and cooperating with
prison officials.
Magistrate Judge Wilner rejected Hinojosa’s ineffective-
assistance-of-counsel claim because “no reasonable criminal
defense attorney could be faulted for failing to anticipate and

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HINOJOSA V. DAVEY 9
advise a client about a future change in the law governing
prison credits.”
District Judge Gary A. Feess adopted Magistrate Judge
Wilner’s report and recommendation in full, denied
Hinojosa’s petition, and dismissed the action with prejudice.
Judge Feess denied Hinojosa’s request for a certificate of
appealability as to either of his claims. Hinojosa timely
petitioned us for a certificate of appealability, which we
granted only as to “whether the 2010 amendment to
California Penal Code § 2933.6, which deprives a prisoner of
a future opportunity to earn an earlier release, violates the Ex
Post Facto Clause.” This appeal followed. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c).
II
We review de novo the district court’s denial of a petition
for a writ of habeas corpus. Lambert v. Blodgett, 393 F.3d
943, 964 (9th Cir. 2004). And we review de novo the district
court’s determination that AEDPA applies to a petitioner’s
claim. See id. at 965.
III
Hinojosa is not the first California prisoner to challenge
amended § 2933.6 under the Ex Post Facto Clause. In
Nevarez v. Barnes, 749 F.3d 1124 (9th Cir.), cert. denied sub
nom. Nevarez v. Ducart, __ U.S. __, 135 S. Ct. 295 (2014),
we considered this same question on similar facts. There, we
held that AEDPA barred us from granting Nevarez relief
because the California courts’ denial of his ex post facto
claim was not “an objectively unreasonable application of
clearly established federal law” as determined by the

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HINOJOSA V. DAVEY 10
Supreme Court of the United States. 749 F.3d at 1128; see 28
U.S.C. § 2254(d)(1). If AEDPA applies here, we are bound
by our decision in Nevarez and must affirm the district
court’s denial of Hinojosa’s petition. See Miller v. Gammie,
335 F.3d 889, 899 (9th Cir. 2003) (en banc). If not, we must
consider the merits of his petition.
AEDPA bars us from granting a writ of habeas corpus
“with respect to any claim that was adjudicated on the merits
in State court proceedings” unless the state court’s decision
(1) “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “was based on an
unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d). Hinojosa contends that no state court decided his
ex post facto claim “on the merits” and thus that AEDPA
does not apply. We agree.
The superior court did not decide Hinojosa’s ex post facto
claim on the merits. It denied the claim because Hinojosa
filed it “in the [im]proper judicial venue.” The state conceded
as much at oral argument. But the state cites Harrington v.
Richter, 562 U.S. 86 (2011), and Johnson v. Williams, 568
U.S. ___, 133 S. Ct. 1088 (2013), for the proposition that we
must presume the California Supreme Court decided
Hinojosa’s ex post facto claim on the merits when it
summarily denied his petition. That argument fails to
comprehend the relationship between Richter, whereby we
must presume state courts decide federal claims on the merits,
see 562 U.S. at 99–100, and Ylst v. Nunnemaker, 501 U.S.
797 (1991), which directs us to consider the last reasoned
decision of the state courts, see id. at 806. Where the last
reasoned state-court decision rejects a federal claim solely on
procedural grounds, any presumption that a subsequent

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HINOJOSA V. DAVEY 11
summary denial decided the claim on the merits is rebutted.
See James v. Ryan, 733 F.3d 911, 915–16 (9th Cir. 2013)
cert. denied, 572 U.S. ___, 134 S. Ct. 2697 (2014); see also
Williams, 133 S. Ct. at 1094 n.1 (“Consistent with our
decision in Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991), the
Ninth Circuit ‘look[ed] through’ the California Supreme
Court’s summary denial of Williams’ petition for review and
examined the California Court of Appeal’s opinion, the last
reasoned state-court decision . . . .”). Here, the last reasoned
decision is that of the superior court, which denied Hinojosa’s
ex post facto claim solely on the ground of improper venue.
That determination is not a determination “on the merits.”
28 U.S.C. § 2254(d). So, we are not bound by AEDPA.
Nonetheless, if a state court dismisses a federal claim on
an independent state procedural ground that is firmly
established and regularly followed, we normally will not
consider the claim. Beard v. Kindler, 558 U.S. 53, 55, 60–61
(2009). But the state has not raised a state procedural ground
as a defense at any stage of Hinojosa’s federal proceedings.
The defense is thus waived. See Trest v. Cain, 522 U.S. 87,
89 (1997) (“[P]rocedural default is normally a defense that
the State is obligated to raise and preserve if it is not to lose
the right to assert the defense thereafter.” (internal quotation
marks and brackets omitted)). And although we may raise
procedural default sua sponte, Windham v. Merkle, 163 F.3d
1092, 1100–01 (9th Cir. 1998), we decline to do so here.
Hinojosa raises a serious question about whether the superior
court’s dismissal of his claim for improper venue is, in fact,
a firmly established and regularly followed rule. See In re
Oluwa, 255 Cal. Rptr. 35, 37 (Cal. Ct. App. 1989) (holding
habeas petition challenging denial of custody credits “is not
related to the conditions of . . . confinement” and was
properly brought in the district of conviction); Griggs v.

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HINOJOSA V. DAVEY 12
Superior Court, 16 Cal. 3d 341, 347 (1976) (holding habeas
petition should be transferred, not dismissed, for improper
venue). We will not make the state’s arguments for it, even
only to rebut them. So, we turn to the merits.
IV
“No State shall . . . pass any . . . ex post facto Law . . . .”
U.S. Const. art. I, § 10, cl. 1. “To fall within the ex post facto
prohibition, a law must be retrospective—that is, ‘it must
apply to events occurring before its enactment’—and it ‘must
disadvantage the offender affected by it’ by altering the
definition of criminal conduct or increasing the punishment
for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997)
(citations omitted). We address these two prongs in turn.
A
A law is retrospective if it “appl[ies] to events occurring
before its enactment.” Id. at 441 (citation omitted). The
Supreme Court has instructed that the “critical question is
whether the law changes the legal consequences of acts
completed before its effective date.” Weaver v. Graham, 450
U.S. 24, 31 (1981).5 But which acts? Hinojosa argues that the
5 In Weaver, the governing law when petitioner Weaver committed and
pleaded guilty to second degree murder permitted all prisoners to earn
conduct credits at certain rates. Id. at 25–26. That rate was later reduced,
and the new rates were applied to all prisoners regardless of when they
committed their underlying offenses. Id. at 26–27. As a result, all
prisoners’ minimum release dates were effectively increased, including
Weaver’s. Id. Weaver petitioned the Supreme Court of Florida for a writ
of habeas corpus, claiming the application of the new rates to him violated
the Ex Post Facto Clause. Id. at 27. The Florida Supreme Court denied his
petition. Id. at 27–28.

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HINOJOSA V. DAVEY 13
relevant conduct is the criminal conduct for which he is
incarcerated. The state contends it is Hinojosa’s continued
prison-gang association.
Our precedent supports Hinojosa’s position. Altering a
prisoner’s ability to earn credits affects the length of his
prison term and therefore affects the measure of punishment
attached to the original crime. See United States v. Paskow,
11 F.3d 873, 879 (9th Cir. 1993) (“[A statute], which
forfeited good-time credits upon revocation of parole,
violated the prohibition on ex post facto laws because it
constituted ‘a sanction that extends the time remaining on
petitioner’s original sentence’ rather than a punishment for
‘the second offense.’ ” (quoting Beebe v. Phelps, 650 F.2d
774, 776 (5th Cir. Unit A July 1981))); see also Weaver,
450 U.S. at 32 (“[A] prisoner’s eligibility for reduced
imprisonment is a significant factor entering into both the
defendant’s decision to plea bargain and the judge’s
calculation of the sentence to be imposed.”). For that reason,
we have consistently looked to the prisoner’s underlying
criminal conduct for the purpose of determining whether a
law is retrospective. See Paskow, 11 F.3d at 877 (“These two
The United States Supreme Court reversed. For the purposes of
retrospectivity, the Court compared the date Weaver committed his
underlying criminal offense and the date the new rates went into effect. Id.
at 31–32; see also id. at 32 (“[A] prisoner’s eligibility for reduced
imprisonment is a significant factor entering into both the defendant’s
decision to plea bargain and the judge’s calculation of the sentence to be
imposed.”). The Court then concluded that the new rates disadvantaged
Weaver by increasing his prison sentence. Id. at 33. The Court concluded
“the new provision constricts the inmate’s opportunity to earn early
release, and thereby makes more onerous the punishment for crimes
committed before its enactment. This result runs afoul of the prohibition
against ex post facto laws.” Id. at 35–36.

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HINOJOSA V. DAVEY 14
factors must be assessed in connection with the date of the
defendant’s offense, not of his conviction or sentencing.”);
Watson v. Estelle, 886 F.2d 1093, 1096 (9th Cir. 1989) (“The
key ex post facto inquiry is the actual state of the law at the
time the defendant perpetrated the offense.”); see also
Weaver, 450 U.S. at 31 (asking whether the statute at issue
“applies to prisoners convicted for acts committed before the
provision’s effective date”). That analysis holds true even
where the prisoner commits some intervening misconduct
that triggers a change in his credit-earning status. See
Paskow, 11 F.3d at 878–79 (citing Greenfield v. Scafati,
277 F. Supp. 644, 644–45 (D. Mass. 1967), aff’d, 390 U.S.
713 (1968) (per curiam)).
Greenfield, which we have adopted as controlling
authority,6 illustrates this principle. As we described that case
in Paskow:
In Greenfield, a defendant who was
incarcerated following revocation of his
parole challenged a statute that prohibited any
state parole violator from receiving good-
conduct credits during his first six months in
custody following [parole] revocation. At the
time the defendant committed his underlying
6 Although Greenfield is a decision by a three-judge panel from the
District of Massachusetts, the Supreme Court summarily affirmed the
decision, and we have since adopted it as binding circuit precedent. See
Paskow, 11 F.3d at 878. As such, we are bound by Greenfield here,
notwithstanding our holding in Nevarez v. Barnes that Greenfield “does
not qualify as ‘clearly established federal law [as determined by the
Supreme Court of the United States]’ for purposes of AEDPA,” 749 F.3d
at 1129. As we held above, AEDPA does not apply to Hinojosa’s ex post
facto claim.

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HINOJOSA V. DAVEY 15
crime, all prisoners, including parole
violators, could accumulate good-conduct
credits from the beginning of their
incarceration. The new statute . . . was
adopted after the defendant committed his
underlying crime, but before he committed the
offense for which his parole was revoked. The
three-judge court held that application of the
statute to the defendant violated the ex post
facto clause, because the statute prevented
him from being released as early as he might
have been had he been permitted to amass
good-conduct credits under the statute in
effect at the time he committed the underlying
crime. Thus, according to the three-judge
court and according to the Supreme Court, the
statute operated retrospectively and to his
detriment. As the three-judge court stated, the
effect of the statute was to “extend[] his
sentence and increas[e] his punishment”
beyond the amount he expected or had notice
of when he committed his underlying crime.
Paskow, 11 F.3d at 878–79 (citations omitted). The panel thus
concluded: “Because parole eligibility is part of the sentence
for the underlying offense, its terms and conditions are fixed
at the moment the underlying offense is complete. Therefore,
like the length of a term of incarceration, the conditions
affecting parole eligibility cannot be retrospectively altered.”
Id. at 879.
The state contends that our decision in Hunter v. Ayers,
336 F.3d 1007 (9th Cir. 2003), establishes that the relevant
conduct here is Hinojosa’s in-prison misconduct, not his

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HINOJOSA V. DAVEY 16
underlying criminal conduct.7 We disagree. The panel in
Hunter assumed without deciding that the relevant conduct
for the purposes of retrospectivity was Hunter’s in-prison
misconduct. See 336 F.3d at 1012–13. But the panel neither
raised nor answered that question. Nor did it have to:
regardless whether the relevant date was the date of his in-
prison misconduct or the date of his underlying criminal
offense, the regulation violated the Ex Post Facto Clause as
applied to Hunter.8 As such, it is no surprise that Hunter did
7 In Hunter, petitioner Hunter challenged prison regulations that
retroactively removed his ability to have conduct credits restored after an
infraction. 336 F.3d at 1008–09. Hunter was caught drinking “pruno”
(prison wine), a disciplinary offense. Id. at 1008. He was docked 120 days
of good-conduct credits. Id. Under the regulations in place at the time he
committed the offense, if he served six months following the offense
without another disciplinary offense, half of his forfeited credits would be
restored as of right. Id. at 1010. But after he committed the pruno offense,
the regulations were changed to eliminate restoration of forfeited credits
for offenses like Hunter’s. Id. Hunter challenged the application of the
new regulations to him as violating the Ex Post Facto Clause. Id. at 1011.
Hunter petitioned for a writ of habeas corpus under 28 U.S.C. § 2241,
which the district court granted. We affirmed, holding that application of
the amended regulations to eliminate restoration of Hunter’s credits
violated the Ex Post Facto Clause. Id. at 1013.
8 But that distinction matters here. Although Hinojosa’s and Hunter’s
situations seem similar (Hinojosa was validated and transferred to the
SHU, then the statute was amended; Hunter committed in-prison
misconduct, then the regulation was amended), a key difference
distinguishes them. Hunter’s pruno violation was completed when he
drank the pruno. But according to the California courts, a validated prison-
gang associate commits the continuing offense of associating with a prison
gang until he debriefs or becomes inactive. See In re Sampson, 197 Cal.
App. 4th 1234, 1242–43 (2011). So, under California law, every moment
Hinojosa goes without debriefing is a continuation of his misconduct. And
we are bound by the California courts’ interpretation of California law.
See Bradshaw v. Ricky, 546 U.S. 74, 76 (2005) (per curiam). Accordingly,

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not distinguish or even cite any of the cases relevant to that
question. To the extent Hunter’s dicta does identify the in-
prison infraction as the relevant conduct, we hold that dicta
is not “well-reasoned”—indeed, the opinion provides no
reasoning—and we decline to follow it. Cf. United States v.
Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc). Rather,
we are bound by the express holdings of Paskow and Weaver.
A prisoner’s eligibility for early release—whether by means
of good-conduct credits or parole—is part of his underlying
criminal sentence. See Weaver, 450 U.S. at 31–32; Paskow,
11 F.3d at 879. And where a prisoner’s sentence is effectively
increased by new regulations that alter his credit-earning
status, that alteration “changes the legal consequences” of his
underlying criminal conduct. Weaver, 450 U.S. at 31. We
therefore hold, in accord with Paskow and Weaver, that the
date relevant to our retrospectivity analysis is the date of the
prisoner’s underlying criminal conduct. See Paskow, 11 F.3d
at 878–79; Weaver, 450 U.S. at 30–32.
Applying that principle here, we conclude that amended
§ 2933.6 is retrospective as applied to Hinojosa. To borrow
Paskow’s language: “At the time [Hinojosa] committed his
underlying crime . . . [validated gang associates housed in a
SHU] could accumulate good-conduct credits from the
beginning of their incarceration.” Paskow, 11 F.3d at 878.
Amended § 2933.6 “was adopted after [Hinojosa] committed
his underlying crime” and “prevented [Hinojosa] from being
released as early as he might have been had he been permitted
if the relevant date is the date of the in-prison misconduct, and Hinojosa
was properly found to have committed in-prison misconduct by affiliating
with a prison gang while in prison, § 2933.6 is not retrospective because
until there is evidence that he has disaffiliated from that gang, he is
continuing his in-prison misconduct.

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to amass good-conduct credits under the statute in effect at
the time he committed the underlying crime.” Id. (emphasis
omitted). It thus “changes the legal consequences of acts
completed before its effective date.” Weaver, 450 U.S. at 31.9
In its answering brief, the state attempts to distinguish this
case from Paskow and Weaver on the ground that amended
§ 2933.6
punishes conduct that occurred after the
commission of, or the conviction for, the
punishable offense. Hinojosa’s ineligibility
for conduct credit accrual is not punishment
for the offense of which he was
convicted. . . . [I]t is punishment for gang-
related conduct that occurred after January 25,
2010.
See also In re Sampson, 197 Cal. App. 4th at 1242
(“[P]etitioner’s ineligibility for conduct credit accrual is not
punishment for the offense of which he was convicted. . . . It
is punishment for gang-related conduct that continued after
January 25, 2010.”).
We do not question whether California can punish prison
misconduct, including prison-gang-related misconduct,
through administrative disciplinary procedures. See, e.g.,
Wilkinson v. Austin, 545 U.S. 209, 222–23 (2005) (holding
that administrative punishment does not implicate a liberty
interest protected by the Fifth Amendment unless the
9 Although the record does not contain the date of Hinojosa’s underlying
criminal offense, it was certainly before he pleaded guilty to that conduct
in 2003.

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HINOJOSA V. DAVEY 19
punishment “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995))). And
we acknowledge that most administrative punishments—for
example, segregated housing, loss of visitation privileges,
restricted (and unpleasant) diets, and reduced exercise or
social time—generally will not implicate the Ex Post Facto
Clause. So long as an administrative punishment is in place
before a prisoner commits the punishable prison misconduct,
imposition of such punishment does not change the legal
consequences of any prior acts. But administrative
punishments that effectively extend a prisoner’s
sentence—such as revocation of good-conduct credits or
change in credit-earning status—are another story. A
prisoner’s term of imprisonment is punishment for his
underlying criminal conduct. So, an administrative
punishment that effectively extends a prisoner’s sentence
goes beyond punishing prison misconduct. It changes the
legal consequences of his underlying criminal conduct. If that
conduct was committed before the administrative punishment
was enacted, the punishment is retrospective. See Weaver,
450 U.S. at 32–33.10
The state is correct: Hinojosa’s “gang-related
misconduct” occurred after, and is separate from, his
underlying crimes. But in punishing Hinojosa for his in-
prison gang-related misconduct, the state has effectively
increased his prison sentence for his underlying crimes. And
it has done so by means of a regulation that was enacted after
10 Of course, the opposite is also true. If, at the time a prisoner commits
his crime, regulations provide that prisoners may lose credit-earning status
as a consequence of prison misconduct, there is no ex post facto violation.

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HINOJOSA V. DAVEY 20
Hinojosa committed those crimes. Amended § 2933.6 is thus
retrospective as applied to Hinojosa.
B
Not all retrospective laws are unconstitutional. A
retrospective law does not violate the Ex Post Facto Clause
unless it “ ‘disadvantage[s] the offender affected by it’ by
altering the definition of criminal conduct or increasing the
punishment for the crime.” Lynce, 519 U.S. at 441 (citation
omitted). But an increase in punishment need not be an
increase in the maximum term of imprisonment. As the
Supreme Court explained in Weaver, a new regulation that
changes an inmate’s ability to earn good-conduct credits
increases his punishment if the “new provision constricts the
inmate’s opportunity to earn early release.” Weaver, 450 U.S.
at 35–36.
Citing California Department of Corrections v. Morales,
514 U.S. 499 (1995), the state argues that Hinojosa’s risk of
an increased sentence is “too attenuated” to rise to an ex post
facto violation. 514 U.S. at 514. We disagree and distinguish
Morales. Under the law in place when petitioner Morales
murdered two people and pleaded guilty to those crimes,
parole-eligible inmates were entitled to yearly parole-board
hearings. Id. at 502–03. But while Morales was incarcerated,
the state changed the law to “authorize[] the Board [of Parole
Hearings] to defer subsequent suitability hearings for up to
three years . . . if the Board ‘finds that it is not reasonable to
expect that parole would be granted at a hearing during the
following years and states the bases for the finding.’ ” Id. at
503 (citation omitted). At his first parole hearing in 1989, the
board issued a reasoned decision finding it was not
reasonable to expect that parole would be granted in the

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HINOJOSA V. DAVEY 21
following years. Id. at 502–03. It scheduled Morales’s next
hearing for 1992. Id. at 503.
Morales filed a petition for habeas corpus in federal
district court, which the district court denied. Id. at 504. We
reversed, holding that “any retrospective law making parole
hearings less accessible would effectively increase the
[prisoner’s] sentence and violate the ex post facto clause.” Id.
(citation omitted). The Supreme Court reversed us, drawing
a clear distinction between cases like Weaver, where a
retrospective law directly results in an increased prison
sentence, and cases like Morales, where the amended statute
“creates only the most speculative and attenuated risk of
increasing the measure of punishment attached to the covered
crimes.” Id. at 514.
This case falls under Weaver, not Morales. Whereas the
amended statute in Morales did not change the “substantive
formula” for reducing the statutory sentencing range or the
standards for determining parole suitability, id. at 507,
amended § 2933.6 expressly alters the “substantive formula”
for awarding good-conduct credits to prisoners, like Hinojosa,
who have been validated as prison-gang members or
associates. That change is not speculative; it has effectively
increased Hinojosa’s prison time by one year.
The state argues alternatively that Hinojosa is not
disadvantaged by amended § 2933.6 because he “could
always choose to opt out of a prison gang.” If he did, the state
suggests, he would be out of the SHU and back in the general
population, earning credits at the same rate as everyone else.
But it is not so easy. One does not simply “opt out” of a
prison gang. Hinojosa cannot stop being a prison-gang
associate in the eyes of the state unless he waits six years or

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HINOJOSA V. DAVEY 22
debriefs. And aside from the fact that a prisoner who debriefs
may claim to face death or serious injury at the hands of his
former compatriots, the entire debriefing process can take
well over a year. See In re Sampson, 197 Cal. App. 4th at
1240. The state has made no representation that Hinojosa
would necessarily regain his prior credit-earning status upon
beginning—or even completing—the process. Nor is there
any provision by which Hinojosa could have the credits he is
denied while debriefing reinstated once he completes the
process.
But even if Hinojosa could easily opt out of his prison
gang, the amended statute would still disadvantage him. We
look at the effect amended § 2933.6 has on Hinojosa now, all
other things being equal. The question is: if Hinojosa does not
change his conduct—if he continues doing what he was doing
before § 2933.6 was amended—is his prison time effectively
lengthened? The answer is yes. Amended § 2933.6 thus
works to his disadvantage. Were we to hold otherwise, the
state could impose any manner of new requirements upon
prisoners, who would have to comply simply to retain the
same credit-earning status they enjoyed before the new
requirements were enacted. See Weaver, 450 U.S. at 34–35
(rejecting the state’s argument that Weaver could make up for
his change in credit-earning status by performing “special
behavior” to earn credits). Such a result would be
irreconcilable with the Ex Post Facto Clause’s protection
against “the lack of fair notice and governmental restraint
when the legislature increases punishment beyond what was
prescribed when the crime was consummated.” Id. at 30. For
just as retroactively altering “a prisoner’s eligibility for
reduced imprisonment” can disadvantage a prisoner, id. at 32,
so can new conditions placed on that eligibility.

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HINOJOSA V. DAVEY 23
* * *
In conclusion, we emphasize what we hold today—and
what we do not. We do not question whether the state can
enact a new statute punishing in-prison misconduct. Nor do
we question here whether the state can apply that new statute
to prisoners whose underlying criminal conduct predates the
statute’s enactment. But the state cannot use such a statute
retroactively to effect an increase in prison time. The Ex Post
Facto Clause forbids it.
V
Amended § 2933.6 violates the Ex Post Facto Clause as
applied to prisoners, like Hinojosa, who committed their
underlying criminal conduct before the amendment’s
enactment. Accordingly, we REVERSE the judgment of the
district court and REMAND with instructions to GRANT the
writ of habeas corpus. The writ will direct the state to release
Hinojosa on the date he would have been released under the
version of § 2933.6 that was in place prior to January 25,
2010. See Weaver, 450 U.S. at 36 n.22.
REVERSED and REMANDED.

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