Sergio M. Aguirre v. Raymond Madden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO M. AGUIRRE,
Petitioner - Appellant,
v.
RAYMOND MADDEN,
Respondent - Appellee.
No. 13-16022
D.C. No. 1:13-cv-00120-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding
Submitted March 15, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Sergio M. Aguirre 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)).
AFFIRMED.
-3-

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