Aguirre v. Madden

642 F. App'x 771

Opinion

MEMORANDUM

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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.

1. The state court’s conclusion that the 2010 amendment to California Penal Code § 2933.6 does not violate the Ex Post Fac-to 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 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, — U.S.-, 135 S.Ct. 1, 5, 190 L.Ed.2d 1 (2014) (per curiam) (holding that legal conclusions are properly analyzed under § 2254(d)(1), not § 2254(d)(2)).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1 . In Hinojosa v. Davey, 803 F.3d 412 (9th Cir.2015), a habeas case in which the Antiter-rorism 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 "con-traiy 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, — U.S. -, 135 S.Ct. 1, 2, 190 L.Ed.2d 1 (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’ ”).