                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             APR 24 2019
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CARLOS ALMEIDA,                                   No.    17-16302

              Plaintiff-Appellant,                D.C. No. 3:16-cv-02689-JD

 v.
                                                  MEMORANDUM*
CLARK E. DUCART, Warden; R. BELL,                      and
Assistant Warden; D. GONGORA; J.                     ORDER
BEESON, Special Agent; R. BURT,
Special Agent; B. NEAL, Counselor,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                     James Donato, District Judge, Presiding

                        Argued and Submitted April 9, 2019
                               Pasadena, California

Before: GRABER and BYBEE, Circuit Judges, and ARTERTON,** District Judge.

      Carlos Almeida appeals the district court’s denial of his pro se federal

habeas petition, which alleged that prison officials violated his constitutional rights

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
by finding he was an in-prison gang member and incarcerating him for four years

in a Security Housing Unit (“SHU”). The district court dismissed Almeida’s

petition, finding it barred by claim preclusion because he had alleged the same

claim in a state habeas petition, which the state court denied. All but one sentence

of the state court’s page-and-a-half order described a new pilot program in the

prison that “provided for case-by-case consideration . . . of previously validated

gang affiliates for release from SHU.” The one sentence addressing the merits of

Almeida’s due process claim stated: “In any event, Petitioner has not shown that

his due process rights to consideration for release from SHU have been infringed.”

On appeal, Almeida asserts that the state court’s decision was a summary denial,

and thus the district court erred in concluding it precluded his federal claim. We

have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for further

proceedings.

      We review a district court’s dismissal based on claim preclusion de novo.

Furnace v. Giurbino, 838 F.3d 1019, 1023 n.1 (9th Cir. 2016). “California claim

preclusion law governs whether, in light of his earlier state habeas petition,

[Almeida’s] § 1983 claims may be brought in federal court.” Id. at 1023. Under

California law, “the summary denial of a habeas corpus petition does not establish

law of the case and does not have a res judicata effect in future proceedings.”


                                           2
Gomez v. Superior Court, 278 P.3d 1168, 1175 n.6 (Cal. 2012). “By implication,

then, reasoned denials of California habeas petitions . . . do have claim-preclusive

effect.” Gonzales v. Cal. Dep’t of Corr., 739 F.3d 1226, 1231 (9th Cir. 2014)

(emphasis omitted) (citing Gomez, 278 P.3d at 1175 n.6). In finding Almeida’s

claim precluded, the district court did not address whether the state court decision

was “summary” or “reasoned,” stating only that “[t]he superior court considered

the evidence and denied the petition in a final judgment on the merits.”

      The state court’s order was a summary denial. The court’s description of the

prison’s new pilot program was irrelevant to the merits of Almeida’s due process

claim, and its single-sentence holding contained no explanation for the denial. See

Kowis v. Howard, 838 P.2d 250, 253 (Cal. 1992) (“A short statement or citation

explaining the basis for the summary denial does not transform the denial into a

decision of a cause entitled to law of the case effect.”); Frisk v. Superior Court,

132 Cal. Rptr. 3d 602, 612 (Ct. App. 2011) (“Summary denials . . . come with little

explanation, if any.”). Therefore, the state court’s decision does not preclude

Almeida from bringing his claim in federal court.1

      REVERSED AND REMANDED.


      1
        In light of this decision, we do not need to address Almeida’s arguments
regarding privity or leave to amend, and we grant Almeida’s motion for judicial
notice.
                                           3
