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California Credit Restoration Denial Ruled Ex Post Facto
by John E. Dannenberg
The U.S. District Court (E.D. Cal.) granted a writ of habeas corpus because it found the denial of earned restoration of a California state prisoner's disciplinary-based credit loss to be unconstitutionally retroactive. The Ninth Circuit U.S. Court of Appeals affirmed because the prison regulation disallowing such restoration had been enacted after the disciplinary offense was committed.
Joseph Scott Hunter began his 39 year determinate prison term in 1981 and was eligible to earn "good-time" credits. On February 22, 1996, Hunter was caught drinking "pruno" (a Division C serious rules violation) for which he was assessed 120 days loss of good-time credits. Under the then current prison regulations, he could earn restoration of one-half of those credits by remaining disciplinary-free for six months.
However, effective January 1, 1996, California Penal Code § 2933(c) (enabling those regulations) was amended to permit the Director of Corrections to promulgate new regulations restricting restoration. In April, 1996, the Director did so amending regulations 15 CCR §§ 3327 and 3328 to provide for no credit restoration against a Division C offense.
After Hunter had completed six months of "clean time,' he applied for his 50% restoration. Department of Corrections officials refused, citing the new (and then in effect) no-credit regulation. Hunter filed a habeas corpus petition against Warden Ayers in the U.S. District Court, claiming that the application of the new regulation to him violated the Ex Post Facto Clause of the United States Constitution. The district court agreed and granted the writ.
The Ninth Circuit affirmed, noting that Hunter previously had an absolute right to earned restoration of credits, but under the new scheme, was disadvantaged because he no longer had that right. This met the test of Weaver v. Graham, 450 U.S. 24 (1981) in that the application of the revised regulation was retrospective and disadvantaged Hunter by making the new punishment more onerous [i.e., prolonging imprisonment].
Such a conclusion would not have been available if the earlier regulation had permitted discretionary credits. In that case, the statutory change would only have imported a speculative effect as to increased punishment. Notably, the Ninth Circuit disagreed with In re Winner (1997) 56 Cal. App.4th 1481, a state appellate court decision holding that revised § 2933(c) automatically nullified the pre-existing regulation resulting in the state appellate court's disallowance of the benefit of that more lenient regulation. But believing instead that the California Supreme Court would not hold that the January 1, 1996 statutory amendment nullified the pre-existing credit-restoration regulation, the Ninth Circuit enforced Hunter's Ex Post Facto Clause rights to earn his credits. See: Hunter v. Ayers, 336 F.3d 1007 (9th Cir. 2003).
"
The U.S. District Court (E.D. Cal.) granted a writ of habeas corpus because it found the denial of earned restoration of a California state prisoner's disciplinary-based credit loss to be unconstitutionally retroactive. The Ninth Circuit U.S. Court of Appeals affirmed because the prison regulation disallowing such restoration had been enacted after the disciplinary offense was committed.
Joseph Scott Hunter began his 39 year determinate prison term in 1981 and was eligible to earn "good-time" credits. On February 22, 1996, Hunter was caught drinking "pruno" (a Division C serious rules violation) for which he was assessed 120 days loss of good-time credits. Under the then current prison regulations, he could earn restoration of one-half of those credits by remaining disciplinary-free for six months.
However, effective January 1, 1996, California Penal Code § 2933(c) (enabling those regulations) was amended to permit the Director of Corrections to promulgate new regulations restricting restoration. In April, 1996, the Director did so amending regulations 15 CCR §§ 3327 and 3328 to provide for no credit restoration against a Division C offense.
After Hunter had completed six months of "clean time,' he applied for his 50% restoration. Department of Corrections officials refused, citing the new (and then in effect) no-credit regulation. Hunter filed a habeas corpus petition against Warden Ayers in the U.S. District Court, claiming that the application of the new regulation to him violated the Ex Post Facto Clause of the United States Constitution. The district court agreed and granted the writ.
The Ninth Circuit affirmed, noting that Hunter previously had an absolute right to earned restoration of credits, but under the new scheme, was disadvantaged because he no longer had that right. This met the test of Weaver v. Graham, 450 U.S. 24 (1981) in that the application of the revised regulation was retrospective and disadvantaged Hunter by making the new punishment more onerous [i.e., prolonging imprisonment].
Such a conclusion would not have been available if the earlier regulation had permitted discretionary credits. In that case, the statutory change would only have imported a speculative effect as to increased punishment. Notably, the Ninth Circuit disagreed with In re Winner (1997) 56 Cal. App.4th 1481, a state appellate court decision holding that revised § 2933(c) automatically nullified the pre-existing regulation resulting in the state appellate court's disallowance of the benefit of that more lenient regulation. But believing instead that the California Supreme Court would not hold that the January 1, 1996 statutory amendment nullified the pre-existing credit-restoration regulation, the Ninth Circuit enforced Hunter's Ex Post Facto Clause rights to earn his credits. See: Hunter v. Ayers, 336 F.3d 1007 (9th Cir. 2003).
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Related legal case
Hunter v. Ayers
| Year | 2003 |
|---|---|
| Cite | 336 F.3d 1007 (9th Cir. 2003) |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
Hunter v. Ayers, 336 F.3d 1007 (9th Cir. 07/18/2003)
[1] U.S. Court of Appeals, Ninth Circuit
[2] No. 01-17557
[3] 336 F.3d 1007, 2003, 3 Cal. Daily Op. Serv. 6369, 2003 Daily Journal D.A.R. 8016
[4] July 18, 2003
[5] JOSEPH SCOTT HUNTER, PETITIONER-APPELLEE,
v.
ROBERT L. AYERS, WARDEN, RESPONDENT-APPELLANT.
[6] Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior Judge, Presiding D.C. No. CV-98-00216-LKK
[7] Counsel
[8] David A. Carrasco, Deputy Attorney General of the State of California, Sacramento, California, for the appellant.
[9] Joseph Scott Hunter, Corcoran, California, appearing pro se.
[10] Before: Alex Kozinski and Andrew J. Kleinfeld, Circuit Judges, and Edward C. Reed,*fn1 District Judge.
[11] The opinion of the court was delivered by: Kleinfeld, Circuit Judge
[12] FOR PUBLICATION
[13] OPINION
[14] Submitted September 13, 2002*fn2 San Francisco, California
[15] OPINION
[16] The sole issue in this case is whether a change in California parole regulations was unconstitutionally retroactive. The district court concluded that it was, and we agree.
[17] Facts
[18] Hunter had been convicted of rape and related serious crimes and began serving a 39-year sentence in 1981. Prisoners in most penal systems get "good time," which means time deducted from their term of incarceration for good behavior. They lose good time for misconduct. This system gives prisons a disciplinary tool, especially for offenses too minor to merit additional criminal prosecution. Hunter's good time, not his 39-year sentence, is the subject of this case.
[19] Hunter got caught drinking "pruno" on February 22, 1996. Pruno is a fermented drink made by prisoners from scraps of fruit and vegetables. After a hearing, he was assessed 120 days of good time. This assessment meant that he would have had to spend four months more of his underlying 39-year sentence in prison before his release. Under the prison regulations in place when Hunter committed his infraction, he was entitled to get a portion of this good time back after a period of good behavior. But a prior change in the statute governing the good time system and a subsequent change in prison regulations removed his right to restoration of his lost good time. He objects that this change violated the ex post facto clause of the United States Constitution.
[20] Analysis
[21] The issue in the case is whether changes in the prison regulations around the time of the pruno offense make the penalty an ex post facto punishment.
[22] Long before Hunter committed the pruno infraction, California law gave the Director of the Department of Corrections authority to issue regulations for restoration of previously forfeited good time.*fn3 Essentially, this allowed prisoners who had lost good time through an infraction to behave themselves for some period of time and get back part or all of the time they were assessed for their infraction. This provided an additional device for getting inmates to behave. Even though prisoners had lost good time for misconduct, the prison authorities could give back the lost good time to a prisoner who followed the rules for a long enough period after an infraction.
[23] Before it was amended in 1995 the statute at issue here required the Director of the Department of Corrections to issue regulations that would restore forfeited good time, upon various conditions.*fn4 The statute said that "upon application of the prisoner and following completion of the required time free of disciplinary offenses, forfeited credits . . . shall be restored unless . . . ."*fn5 It is undisputed that Hunter did not fall within the "unless" exceptions. For Hunter the pre-1995 law meant that restoration of forfeited good time for offenses such as possession of pruno was mandatory, not discretionary.
[24] As required by the statute, the regulations in place when Hunter committed his infraction made restoration of good time automatic and mandatory*fn6 if the inmate applied and met objective qualifications.*fn7 For an inmate who had forfeited good time for a Division B or C offense, such as Hunter's pruno offense, he could apply for restoration of 50 percent of any credit forfeited after he had "remained disciplinary free for six months."*fn8 These regulations were in place when Hunter committed his pruno violation. Thus, Hunter was entitled to restoration of 60 of the 120 days of forfeited good time, because he remained discipline free for six months after the infraction.
[25] However, before Hunter's pruno infraction, the California legislature amended the good time credit statute. Under the amendment, inmates who committed "serious disciplinary infractions," which Hunter's pruno infraction was, no longer had an absolute entitlement to restoration of forfeited good time. Instead, the Director of the Department of Corrections had discretion whether or not to provide for such restoration by regulation. The statute in existence prior to Hunter's offense had been amended in two material respects. First, the "forfeited credits . . . shall be restored" provision was qualified by insertion of the phrase "for disciplinary offenses other than serious disciplinary infractions punishable by a credit loss of more than 90 days."*fn9 That meant that prisoners who committed "serious" infractions, such as Hunter, were no longer entitled by statute to restoration of forfeited credits.
[26] The second statutory change, prior to Hunter's infraction, was a new sentence giving the Director complete discretion over restoration of credits assessed for the "serious" infractions deleted from the automatic restoration sentence. The new sentence says, "However, in any case in which worktime credit was forfeited for a serious disciplinary infraction punishable by a credit loss of more than 90 days, restoration of credit shall be at the discretion of the director."*fn10
[27] Thus, the amended statutory scheme provided that after a long enough period of good behavior following the infraction, absent extraordinary circumstances, restoration of forfeited credits was to remain as a matter of right for non-serious infractions. But the director was given discretion over the restoration of credits for serious infractions, like Hunter's.
[28] Here is where we reach the arguable issue in this case. The 1995 statutory amendments became effective January 1, 1996, and Hunter committed the pruno offense February 22, 1996. But as of February 22, the director had not yet adopted new regulations to implement the new statutory provisions. The old regulations remained in effect.*fn11 And, under the regulations in effect when Hunter committed his pruno infraction, 50 percent of good time credits forfeited for such "serious" infractions as Hunter's Division C offense "shall be restored" if the prisoner who applied "has remained disciplinary free for six months."*fn12
[29] In April, after Hunter's offense and after Hunter's infraction hearing in March, the Director issued new regulations that eliminated restoration of forfeited good time credits for the more serious infractions. The new regulation provides that "[n]o credit shall be restored for any serious disciplinary offense punishable by a credit loss of more than 90 days. These offenses include Divisions A-1, A-2, B and C."*fn13 Under this harsher regime, Hunter would not be entitled to get 60 days of his forfeited 120 days of good time restored for his pruno offense, despite his subsequent six months of good behavior.
[30] It is plain that the amended 1995 statute gave the Director discretion to deal more harshly with restoration for forfeited good time for more serious infractions. And in April 1996, he did so, by issuing new regulations. The problem for the State in this case is that, as of February, he hadn't.
[31] By the time Hunter had completed his six months of good behavior and applied for restoration of 50 percent of his forfeited good time, the post-infraction regulation was in effect. Pursuant to it, he was denied restoration of any of his forfeited good time.
[32] Hunter asserted in his petition for a writ of habeas corpus in the district court, and asserts here, that the application of the post-infraction regulation against him constituted a violation of the Ex Post Facto Clause of the United States Constitution. The district court agreed and granted the writ.
[33] We review de novo the district court's decision to grant a 28 U.S.C. § 2241 habeas petition,*fn14 and we review de novo whether a sentence violates the constitutional prohibition against ex post facto laws.*fn15
[34] The Constitution prohibits the States from passing any "ex post facto Law."*fn16 A law is an ex post facto law if it meets two conditions. First, "it must apply to events occurring before its enactment."*fn17 In other words, it must be retrospective. Second, it " 'must disadvantage the offender affected by it,' . . . by altering the definition of criminal conduct or increasing the punishment for the crime."*fn18
[35] [1] The ex post facto prohibition applies in the context of prison credits awarded towards a prisoner's early release. Applying the clause to the prison credit context, the Supreme Court held in Weaver v. Graham that where a prisoner's good time is reduced, the core question for ex post facto purposes is whether the changed law imposes "punishment more severe than the punishment assigned by law when the act to be punished occurred."*fn19 And, in Lynce v. Mathis, the Court held that cancellation of "provisional credits awarded as a result of prison overcrowding"*fn20 violated the ex post facto clause because it had the effect of "prolong[ing] . . . imprisonment."*fn21
[36] [2] We conclude that these two cases control the case at bar. The punishment for the pruno offense became much more severe under the new regulation because after the new regulation went into effect, Hunter lost the right to have 60 days of lost good time credit restored. Applying the new regulations therefore disadvantaged Hunter and had the effect of prolonging his imprisonment. Moreover, the new regulation applied retrospectively to Hunter's already completed infraction. True, the regulation could have been issued, and the Director could have made the punishment more severe, as soon as the amendments to the statute came into effect, before the pruno offense. But he didn't. The old regulation remained in effect until after the pruno offense, so Hunter was entitled to be punished under the old regulations.
[37] If restoration of good time credits had been discretionary before and after the offense, this would be a different case. A "speculative and attenuated possibility" of increasing an inmate's punishment is insufficient to violate the ex post facto clause.*fn22 Likewise, it would be a different case if the restoration of credit had been discretionary before and unavailable afterwards. Here, though, Hunter did not have merely a speculative possibility of restoration of his good time credits when he committed the offense. He had a right, under the regulations then in effect, to have 50 percent of his good time credits restored if he behaved himself for six months after the pruno offense. This was a limitation on the severity of his punishment. Under the Ex Post Facto Clause, the limitation on his punishment could not be taken away after the offense.
[38] The State relies on In re Winner,*fn23 which held that the regulation on which Hunter relies was rendered invalid by the 1995 amendment to the statute. Winner reasoned that the regulation did not survive the 1995 amendments because the revised statute and the regulation conflict.*fn24 If Winner were right, the statute would, of course, trump, but we do not believe that there was, in fact, a conflict. The revised statute does not prohibit restoration of good time; rather, it permits it, at the discretion of the Director.*fn25 The regulation, for its part, exercised the Director's discretion in a manner permitted by the revised statute: it provided for restoration of half the good time credits to all prisoners who behaved themselves for six months.*fn26 Contrary to Winner's conclusion, there was no inconsistency between the amended statute and the former regulation.
[39] Although Winner does not say so, perhaps the court of appeal there believed that the amended statute empowered the Director to exercise his discretion only on a case-by-case basis, rather than wholesale by way of regulation. But the Director, who is charged with administering the statute, must interpret it otherwise because, subsequent to the 1995 amendment, he promulgated a regulation that denies restoration of good time credits for all serious infractions.*fn27 We see no basis for rejecting the Director's reasonable interpretation of the statute as authorizing the exercise of discretion by way of regulation. If the statute supports a blanket rule denying all good time credit restoration, then it surely also supported a blanket rule granting restoration in a certain class of cases.
[40] We do not lightly reject the view of an intermediate state appellate court on a question of state law, but our responsibility is to decide the case as would the California Supreme Court.*fn28
[41] For the reasons expressed, we are convinced that the California Supreme Court, if confronted with the issue, would hold that the 1995 amendments did not render the pre-existing regulation invalid.
[42] [3] Because the pre-existing regulation remained in effect at the time of Hunter's infraction, the State's application of the new regulation to deny him restoration of credits violated the Ex Post Facto Clause.
[43] AFFIRMED.
--------------------------------------------------------------------------------
Opinion Footnotes
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[44] *fn1 The Honorable Edward C. Reed, Senior United States District Judge for Nevada, sitting by designation.
[45] *fn2 This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[46] *fn3 See Cal. Penal Code § 2933(c).
[47] *fn4 See Cal. Penal Code § 2933(c). "Under regulations adopted by the Department of Corrections, which shall require a period of not more than one year free of disciplinary infractions, worktime credit which has been previously forfeited may be restored by the director. The regulations shall provide for separate classifications of serious disciplinary infractions as they relate to restoration of credits, the time period required before forfeited credits or a portion thereof may be restored, and the percentage of forfeited credits that may be restored for these time periods." Id.
[48] *fn5 Id. (emphasis added).
[49] *fn6 Cal. Code of Regs. tit. 15, § 3327(e) (1995) ("Credit shall be restored at the consideration hearing . . . ." ) (emphasis added).
[50] *fn7 See id. at §§ 3327(d), 3328.
[51] *fn8 Id. at § 3328(c).
[52] *fn9 See Cal. Penal Code § 2933(c) & Historical and Statutory Notes discussing the 1995 amendment. Following the amendment this portion of the statute reads "[u]pon application of the prisoner and following completion of the required time period free of disciplinary offenses, forfeited credits eligible for restoration under the regulations for disciplinary offenses other than serious disciplinary infractions punishable by a credit loss of more than 90 days shall be restored . . . ." (emphasis added to indi cate language added by amendment).
[53] *fn10 Id. The new sentence says, "However, in any case in which worktime credit was forfeited for a serious disciplinary infraction punishable by a credit loss of more than 90 days, restoration of credit shall be at the discretion of the director."
[54] *fn11 See discussion p. 9829-30, infra.
[55] *fn12 Cal. Code Regs. tit. 15, §§ 3327(e), 3328(c) (1995). An exception that existed for inmates less than six months from their release date has no application here. See id. § 3328(c).
[56] *fn13 Cal. Code of Regs. tit. 15, § 3327(a)(1) (1996). This regulation remains in effect.
[57] *fn14 Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149 (9th Cir. 2002).
[58] *fn15 United States v. Ortland, 109 F.3d 539, 543 (9th Cir. 1997).
[59] *fn16 U.S. Const. art. I, § 10.
[60] *fn17 Weaver v. Graham, 450 U.S. 24, 29 (1981).
[61] *fn18 Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver, 450 U.S. at 29, and citing Collins v. Youngblood, 497 U.S. 37, 50 (1990)).
[62] *fn19 Weaver, 450 U.S. at 30.
[63] *fn20 Lynce, 519 at 436 (internal quotation marks omitted).
[64] *fn21 Id. at 447.
[65] *fn22 California Department of Corrections v. Morales, 514 U.S. 499, 509 (1995). See also Hallmark v. Johnson, 118 F.3d 1073, 1078-79 (5th Cir. 1997).
[66] *fn23 66 Cal. Rptr. 2d 333 (Cal. Ct. App. 1997).
[67] *fn24 Id. at 336-37.
[68] *fn25 See Cal. Penal Code § 2933(c).
[69] *fn26 Cal. Code Regs. tit. 15, §§ 3327(e), 3328(c) (1995).
[70] *fn27 See Cal. Code Regs. tit. 15 § 3327(a)(1) (1996).
[71] *fn28 See Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986).
[1] U.S. Court of Appeals, Ninth Circuit
[2] No. 01-17557
[3] 336 F.3d 1007, 2003, 3 Cal. Daily Op. Serv. 6369, 2003 Daily Journal D.A.R. 8016
[4] July 18, 2003
[5] JOSEPH SCOTT HUNTER, PETITIONER-APPELLEE,
v.
ROBERT L. AYERS, WARDEN, RESPONDENT-APPELLANT.
[6] Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior Judge, Presiding D.C. No. CV-98-00216-LKK
[7] Counsel
[8] David A. Carrasco, Deputy Attorney General of the State of California, Sacramento, California, for the appellant.
[9] Joseph Scott Hunter, Corcoran, California, appearing pro se.
[10] Before: Alex Kozinski and Andrew J. Kleinfeld, Circuit Judges, and Edward C. Reed,*fn1 District Judge.
[11] The opinion of the court was delivered by: Kleinfeld, Circuit Judge
[12] FOR PUBLICATION
[13] OPINION
[14] Submitted September 13, 2002*fn2 San Francisco, California
[15] OPINION
[16] The sole issue in this case is whether a change in California parole regulations was unconstitutionally retroactive. The district court concluded that it was, and we agree.
[17] Facts
[18] Hunter had been convicted of rape and related serious crimes and began serving a 39-year sentence in 1981. Prisoners in most penal systems get "good time," which means time deducted from their term of incarceration for good behavior. They lose good time for misconduct. This system gives prisons a disciplinary tool, especially for offenses too minor to merit additional criminal prosecution. Hunter's good time, not his 39-year sentence, is the subject of this case.
[19] Hunter got caught drinking "pruno" on February 22, 1996. Pruno is a fermented drink made by prisoners from scraps of fruit and vegetables. After a hearing, he was assessed 120 days of good time. This assessment meant that he would have had to spend four months more of his underlying 39-year sentence in prison before his release. Under the prison regulations in place when Hunter committed his infraction, he was entitled to get a portion of this good time back after a period of good behavior. But a prior change in the statute governing the good time system and a subsequent change in prison regulations removed his right to restoration of his lost good time. He objects that this change violated the ex post facto clause of the United States Constitution.
[20] Analysis
[21] The issue in the case is whether changes in the prison regulations around the time of the pruno offense make the penalty an ex post facto punishment.
[22] Long before Hunter committed the pruno infraction, California law gave the Director of the Department of Corrections authority to issue regulations for restoration of previously forfeited good time.*fn3 Essentially, this allowed prisoners who had lost good time through an infraction to behave themselves for some period of time and get back part or all of the time they were assessed for their infraction. This provided an additional device for getting inmates to behave. Even though prisoners had lost good time for misconduct, the prison authorities could give back the lost good time to a prisoner who followed the rules for a long enough period after an infraction.
[23] Before it was amended in 1995 the statute at issue here required the Director of the Department of Corrections to issue regulations that would restore forfeited good time, upon various conditions.*fn4 The statute said that "upon application of the prisoner and following completion of the required time free of disciplinary offenses, forfeited credits . . . shall be restored unless . . . ."*fn5 It is undisputed that Hunter did not fall within the "unless" exceptions. For Hunter the pre-1995 law meant that restoration of forfeited good time for offenses such as possession of pruno was mandatory, not discretionary.
[24] As required by the statute, the regulations in place when Hunter committed his infraction made restoration of good time automatic and mandatory*fn6 if the inmate applied and met objective qualifications.*fn7 For an inmate who had forfeited good time for a Division B or C offense, such as Hunter's pruno offense, he could apply for restoration of 50 percent of any credit forfeited after he had "remained disciplinary free for six months."*fn8 These regulations were in place when Hunter committed his pruno violation. Thus, Hunter was entitled to restoration of 60 of the 120 days of forfeited good time, because he remained discipline free for six months after the infraction.
[25] However, before Hunter's pruno infraction, the California legislature amended the good time credit statute. Under the amendment, inmates who committed "serious disciplinary infractions," which Hunter's pruno infraction was, no longer had an absolute entitlement to restoration of forfeited good time. Instead, the Director of the Department of Corrections had discretion whether or not to provide for such restoration by regulation. The statute in existence prior to Hunter's offense had been amended in two material respects. First, the "forfeited credits . . . shall be restored" provision was qualified by insertion of the phrase "for disciplinary offenses other than serious disciplinary infractions punishable by a credit loss of more than 90 days."*fn9 That meant that prisoners who committed "serious" infractions, such as Hunter, were no longer entitled by statute to restoration of forfeited credits.
[26] The second statutory change, prior to Hunter's infraction, was a new sentence giving the Director complete discretion over restoration of credits assessed for the "serious" infractions deleted from the automatic restoration sentence. The new sentence says, "However, in any case in which worktime credit was forfeited for a serious disciplinary infraction punishable by a credit loss of more than 90 days, restoration of credit shall be at the discretion of the director."*fn10
[27] Thus, the amended statutory scheme provided that after a long enough period of good behavior following the infraction, absent extraordinary circumstances, restoration of forfeited credits was to remain as a matter of right for non-serious infractions. But the director was given discretion over the restoration of credits for serious infractions, like Hunter's.
[28] Here is where we reach the arguable issue in this case. The 1995 statutory amendments became effective January 1, 1996, and Hunter committed the pruno offense February 22, 1996. But as of February 22, the director had not yet adopted new regulations to implement the new statutory provisions. The old regulations remained in effect.*fn11 And, under the regulations in effect when Hunter committed his pruno infraction, 50 percent of good time credits forfeited for such "serious" infractions as Hunter's Division C offense "shall be restored" if the prisoner who applied "has remained disciplinary free for six months."*fn12
[29] In April, after Hunter's offense and after Hunter's infraction hearing in March, the Director issued new regulations that eliminated restoration of forfeited good time credits for the more serious infractions. The new regulation provides that "[n]o credit shall be restored for any serious disciplinary offense punishable by a credit loss of more than 90 days. These offenses include Divisions A-1, A-2, B and C."*fn13 Under this harsher regime, Hunter would not be entitled to get 60 days of his forfeited 120 days of good time restored for his pruno offense, despite his subsequent six months of good behavior.
[30] It is plain that the amended 1995 statute gave the Director discretion to deal more harshly with restoration for forfeited good time for more serious infractions. And in April 1996, he did so, by issuing new regulations. The problem for the State in this case is that, as of February, he hadn't.
[31] By the time Hunter had completed his six months of good behavior and applied for restoration of 50 percent of his forfeited good time, the post-infraction regulation was in effect. Pursuant to it, he was denied restoration of any of his forfeited good time.
[32] Hunter asserted in his petition for a writ of habeas corpus in the district court, and asserts here, that the application of the post-infraction regulation against him constituted a violation of the Ex Post Facto Clause of the United States Constitution. The district court agreed and granted the writ.
[33] We review de novo the district court's decision to grant a 28 U.S.C. § 2241 habeas petition,*fn14 and we review de novo whether a sentence violates the constitutional prohibition against ex post facto laws.*fn15
[34] The Constitution prohibits the States from passing any "ex post facto Law."*fn16 A law is an ex post facto law if it meets two conditions. First, "it must apply to events occurring before its enactment."*fn17 In other words, it must be retrospective. Second, it " 'must disadvantage the offender affected by it,' . . . by altering the definition of criminal conduct or increasing the punishment for the crime."*fn18
[35] [1] The ex post facto prohibition applies in the context of prison credits awarded towards a prisoner's early release. Applying the clause to the prison credit context, the Supreme Court held in Weaver v. Graham that where a prisoner's good time is reduced, the core question for ex post facto purposes is whether the changed law imposes "punishment more severe than the punishment assigned by law when the act to be punished occurred."*fn19 And, in Lynce v. Mathis, the Court held that cancellation of "provisional credits awarded as a result of prison overcrowding"*fn20 violated the ex post facto clause because it had the effect of "prolong[ing] . . . imprisonment."*fn21
[36] [2] We conclude that these two cases control the case at bar. The punishment for the pruno offense became much more severe under the new regulation because after the new regulation went into effect, Hunter lost the right to have 60 days of lost good time credit restored. Applying the new regulations therefore disadvantaged Hunter and had the effect of prolonging his imprisonment. Moreover, the new regulation applied retrospectively to Hunter's already completed infraction. True, the regulation could have been issued, and the Director could have made the punishment more severe, as soon as the amendments to the statute came into effect, before the pruno offense. But he didn't. The old regulation remained in effect until after the pruno offense, so Hunter was entitled to be punished under the old regulations.
[37] If restoration of good time credits had been discretionary before and after the offense, this would be a different case. A "speculative and attenuated possibility" of increasing an inmate's punishment is insufficient to violate the ex post facto clause.*fn22 Likewise, it would be a different case if the restoration of credit had been discretionary before and unavailable afterwards. Here, though, Hunter did not have merely a speculative possibility of restoration of his good time credits when he committed the offense. He had a right, under the regulations then in effect, to have 50 percent of his good time credits restored if he behaved himself for six months after the pruno offense. This was a limitation on the severity of his punishment. Under the Ex Post Facto Clause, the limitation on his punishment could not be taken away after the offense.
[38] The State relies on In re Winner,*fn23 which held that the regulation on which Hunter relies was rendered invalid by the 1995 amendment to the statute. Winner reasoned that the regulation did not survive the 1995 amendments because the revised statute and the regulation conflict.*fn24 If Winner were right, the statute would, of course, trump, but we do not believe that there was, in fact, a conflict. The revised statute does not prohibit restoration of good time; rather, it permits it, at the discretion of the Director.*fn25 The regulation, for its part, exercised the Director's discretion in a manner permitted by the revised statute: it provided for restoration of half the good time credits to all prisoners who behaved themselves for six months.*fn26 Contrary to Winner's conclusion, there was no inconsistency between the amended statute and the former regulation.
[39] Although Winner does not say so, perhaps the court of appeal there believed that the amended statute empowered the Director to exercise his discretion only on a case-by-case basis, rather than wholesale by way of regulation. But the Director, who is charged with administering the statute, must interpret it otherwise because, subsequent to the 1995 amendment, he promulgated a regulation that denies restoration of good time credits for all serious infractions.*fn27 We see no basis for rejecting the Director's reasonable interpretation of the statute as authorizing the exercise of discretion by way of regulation. If the statute supports a blanket rule denying all good time credit restoration, then it surely also supported a blanket rule granting restoration in a certain class of cases.
[40] We do not lightly reject the view of an intermediate state appellate court on a question of state law, but our responsibility is to decide the case as would the California Supreme Court.*fn28
[41] For the reasons expressed, we are convinced that the California Supreme Court, if confronted with the issue, would hold that the 1995 amendments did not render the pre-existing regulation invalid.
[42] [3] Because the pre-existing regulation remained in effect at the time of Hunter's infraction, the State's application of the new regulation to deny him restoration of credits violated the Ex Post Facto Clause.
[43] AFFIRMED.
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Opinion Footnotes
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[44] *fn1 The Honorable Edward C. Reed, Senior United States District Judge for Nevada, sitting by designation.
[45] *fn2 This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[46] *fn3 See Cal. Penal Code § 2933(c).
[47] *fn4 See Cal. Penal Code § 2933(c). "Under regulations adopted by the Department of Corrections, which shall require a period of not more than one year free of disciplinary infractions, worktime credit which has been previously forfeited may be restored by the director. The regulations shall provide for separate classifications of serious disciplinary infractions as they relate to restoration of credits, the time period required before forfeited credits or a portion thereof may be restored, and the percentage of forfeited credits that may be restored for these time periods." Id.
[48] *fn5 Id. (emphasis added).
[49] *fn6 Cal. Code of Regs. tit. 15, § 3327(e) (1995) ("Credit shall be restored at the consideration hearing . . . ." ) (emphasis added).
[50] *fn7 See id. at §§ 3327(d), 3328.
[51] *fn8 Id. at § 3328(c).
[52] *fn9 See Cal. Penal Code § 2933(c) & Historical and Statutory Notes discussing the 1995 amendment. Following the amendment this portion of the statute reads "[u]pon application of the prisoner and following completion of the required time period free of disciplinary offenses, forfeited credits eligible for restoration under the regulations for disciplinary offenses other than serious disciplinary infractions punishable by a credit loss of more than 90 days shall be restored . . . ." (emphasis added to indi cate language added by amendment).
[53] *fn10 Id. The new sentence says, "However, in any case in which worktime credit was forfeited for a serious disciplinary infraction punishable by a credit loss of more than 90 days, restoration of credit shall be at the discretion of the director."
[54] *fn11 See discussion p. 9829-30, infra.
[55] *fn12 Cal. Code Regs. tit. 15, §§ 3327(e), 3328(c) (1995). An exception that existed for inmates less than six months from their release date has no application here. See id. § 3328(c).
[56] *fn13 Cal. Code of Regs. tit. 15, § 3327(a)(1) (1996). This regulation remains in effect.
[57] *fn14 Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149 (9th Cir. 2002).
[58] *fn15 United States v. Ortland, 109 F.3d 539, 543 (9th Cir. 1997).
[59] *fn16 U.S. Const. art. I, § 10.
[60] *fn17 Weaver v. Graham, 450 U.S. 24, 29 (1981).
[61] *fn18 Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver, 450 U.S. at 29, and citing Collins v. Youngblood, 497 U.S. 37, 50 (1990)).
[62] *fn19 Weaver, 450 U.S. at 30.
[63] *fn20 Lynce, 519 at 436 (internal quotation marks omitted).
[64] *fn21 Id. at 447.
[65] *fn22 California Department of Corrections v. Morales, 514 U.S. 499, 509 (1995). See also Hallmark v. Johnson, 118 F.3d 1073, 1078-79 (5th Cir. 1997).
[66] *fn23 66 Cal. Rptr. 2d 333 (Cal. Ct. App. 1997).
[67] *fn24 Id. at 336-37.
[68] *fn25 See Cal. Penal Code § 2933(c).
[69] *fn26 Cal. Code Regs. tit. 15, §§ 3327(e), 3328(c) (1995).
[70] *fn27 See Cal. Code Regs. tit. 15 § 3327(a)(1) (1996).
[71] *fn28 See Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986).